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Articles Posted in Medical Malpractice

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It is with great pride and joy that I announce that the Georgia Supreme Court today held caps on non-economic damages in medical malpractice cases unconstitutional as a violation of a citizen’s 7th Amendment right to a jury trial. The ruling was in Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, published today. The Georgia Supreme Court held unequivocally that nothing trumps a person’s 7th Amendment right to a jury trial, including the Legislature’s attempt to cap damages.

This is a great victory for Everyday Georgians who have been or may become the victim of medical malpractice or medical carelessness. Contrary to the Medical Association of Georgia’s spin on this, the caps law did NOT decrease doctors’ medical malpractice premiums. In the three years between 2002-2005, malpractice premiums increased 150%. In the five years since the caps law was enacted, premiums have gone down only 7%, hardly the panacea physicians were looking for and hardly the cure-all that MAG claims it was.

So Everyday Georgians can rest easy tonight knowing the Georgia Supreme Court would not stand idly by and allow their rights to be trampeled. Many thanks to the Nestlehutts, who showed remarkable courage through this ordeal, and to their attorneys, Adam Malone and Mike Terry.

The Supreme Court of Georgia will soon rule on this issue, i.e., whether the Georgia Legislature’s imposition of an arbitrary cap of $350,000.00 on damages in medical malpractice cases violates the 7th Amendment Right to a Jury Trial under the United States and Georgia Constitutions. The case pending before the Georgia Supreme Court right now on this issue is Nestlehutt v. Atlanta Oculoplastic Surgery, P.C., d/b/a Oculus. I have filed an Amicus Brief with the Georgia Supreme Court in support of Mrs. Nestlehutt and in support of the position that such arbitrary caps on damages do, indeed, violate your 7th Amendment right to a jury trial. The Nestlehutt case involved cosmetic surgery that disfigured Mrs. Nestlehutt permanently. A Fulton County, Georgia jury, who heard all the facts and considered all the evidence in the case, returned a verdict for Mrs. Nestlehutt and her husband in the amount of $1.2 Million. Under the caps law, this would have been written down to $350,000.00; however, the trial judge found the caps law to be unconstitutional. And so, Oculus appealed that outcome to the Georgia Supreme Court.

Other media have referred to this case simply as a “botched facelift” case. This does not, however, adequately portray the injury Mrs. Nestlehutt sustained and the horrible pain and suffering she has endured since that careless surgery. Below is a video that shows the after-surgery photographs of Mrs. Nestlehutt so that NO GEORGIAN thinks this is simply a “botched facelift” where the patient simply doesn’t think she looks as good afterward as she should. It was a horriffic injury and after watching the video below, I think you will agree that the original jury’s award of $1.2 Million was proper. Thanks to her attorney, Adam Malone, for sharing this powerful video with me. I want all Georgians to watch it. Thanks to Mrs. Nestlehutt in having the courage to share it and the courage to fight this battle.

WE THE PEOPLE from Georgia Justice on Vimeo.

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How many hoops should you have to jump through to get justice? It’s a fair question that many people struggle with. Recently, the CEO of a Georgia medical services company suggested in a guest column in the Atlanta Journal and Consitution on Friday, January 8, 2010, that to be really sure that Georgians who have been harmed by negligent medical care are worthy of justice we should subject them to one more hoop. Not coincidentally, it’s a hoop that benefits only medical professionals and insurance companies – the only two interest groups that profit when injured patients are prevented from securing justice.

What this CEO has proposed is that, instead of allowing victims of medical malpractice the same Constitutional Right to Trial by Jury enjoyed by all other Georgians, people harmed by medical malpractice would have to get permission to have a jury trial from a “screening panel” comprised of members of the medical and insurance industries, the same entities that want to avoid compensating injured patients. This approach is wrong and adds an unnecessary, ineffective layer to our civil justice system.

The fact is all medical malpractice cases brought in Georgia have already been through multiple screening hoops. The first hoop is that you have to have had something very bad happen as a result of malpractice. Your next hoop is that you have to find a lawyer willing and able to take your case. That lawyer will tell you that there is another, special hoop that protects only professionals charged with negligence. In order to pass through that hoop, the patient must find a medical professional willing to publicly criticize their colleague and sign a document swearing that malpractice happened. So far your case has been screened three times: Something bad happens. You find a lawyer who will invest in helping you find justice. And, you find another doctor who agrees that there was malpractice and is willing to say so. Then there’s a fourth screening before you can have a jury hear your case: the judge must screen the case, too.

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Tomorrow, the Supreme Court of Georgia, the highest appellate court in the State of Georgia, will hear oral arguments in what may prove to be one of the most significant cases to come before the Court in a hundred years. It is the case of Atlanta Oculoplastic Surgery v. Nestlehutt, which challenges the provisions of Senate Bill 3, passed in 2005 by the Georgia General Assembly, that caps noneconomic damages that a jury may award to a victim of medical malpractice at $350,000.00. This means that if your spouse, who doesn’t work outside the home, or your child who has no earnings history, is killed by medical malpractice, the absolute most you could recover for your loved one’s death is a mere $350,000.00. This is absurd on so many levels. In the Nestlehutt case, a Fulton County, Georgia jury awarded Mrs. Nestlehutt well over $350,000.00 for permament injuries she received to her body due to medical malpractice by her physicians. After a trial, the Fulton County jury found Mrs. Nestlehutt’s case to be meritorious and awarded her substantially more than the $350,000.00 cap. When judgment was about to be entered, however, the Fulton County trial court judge ruled that the cap of $350,000.00 found in SB3 was unconstitutional, for many reasons.

The Defendant appealed directly to the Supreme Court of Georgia, which will hear arguments tomorrow at 10:00 a.m. I have personally filed an Amicus Brief (a Friend of the Court Brief) on behalf of the many clients I represent in medical malpractice cases who have had the value of their claims unnecessarily reduced by the arbitrary caps on damages. Numerous briefs have been filed. There is no question in my mind that the caps on damages law violates a Georgia citizen’s absolute right to a trial by jury. Limiting what a jury says is fair and just, given all of the harms caused by a defendant’s malpractice, is tantamount to taking away a person’s right to a jury trial to decide those issues in the first place. A wronged Georgia citizen can not realize the full benefit of his or her Seventh Amendment right to a jury trial if it is limited in any way.

Also, the caps on damages limits access to justice for many. Many people who have valid medical malpractice claims but in which the only damages are noneconomic, so they are limited by the $350,000.00 cap, cannot bring any lawsuit on behalf of a loved one because they have no realistic hope of recovering enough to justify an attorney’s handling of the case. Although Georgia law allows a person to bring a case pro se, or without a lawyer, realistically, that would never work in the medical malpractice arena. There are too many special requirements for the filing and proving of a medical malpractice case. In reality, a pro se plaintiff would stand no chance. That is the beauty of a contingency fee. It allows a victim to pursue justice and when the stakes are high enough, the high cost of a medical malpractice case (many take anywhere from $75,000.00-$200,000.00 to bring and proscecute) can be justified. Otherwise, it can’t.

A Fulton County, Atlanta, Georgia jury has just returned this afternoon a verdict in the amount of $2.3 Million in a medical malpractice case involving a botched circumcision. The trial on March 16, 2009, and the jury deliberated from 10:30 a.m. yesterday until about 1:45 p.m. today, when they returned a verdict in the amount of $1.8 million for the minor child, and $500,000.00 for the mother.
The case involved an alleged botched circumcision, in which the young male child involved (who was 2-days old at the time of the incident), had about five millimeters (or about one-third) of his glans penis negligently removed during a circumcision procedure on November 6, 2004. This is obviously a significant permanent injury that will go with the child the rest of his life.
Defendants not only contended they had committed no negligence, and that any injury was an accepted risk of the procedure, but also somewhat surprisingly contended that the incident did not even occur, asserting that the child was suffering from a congenital deformity of the penis. I guess the jury just didn’t buy that argument. There are some detractors of the Georgia Civil Justice System who might decry this verdict as excessive, but my guess is those who do have 100% of their penis. Bless this Fulton County jury for taking into the consideration the emotion toil this unnecessary deformity will have on this child as he grows into a young man…something he will have to live with every day of his life, all due through no fault of his own.

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The Federal Centers for Medicare and Medicaid Management have just released a startling study of death rates in our nations’ hospitals and Georgia hospitals didn’t fare so well. Nine Georgia hospitals rated worse than national norms on death rates for pneumonia or heart failure — a higher number than all states but California. The Atlanta Journal and Constitution this morning published a telling chart showing the dismal performance of our Georgia Hospitals. The good news for Georgia citizens is that now, when you may have a choice, you can access this study to help you make a better-informed decision about in which hospital you should have a medical procedure performed. You may access the hospital ratings here. As medical consumers, it’s the first time consumers are able to compare hospital death rates for patients admitted for three conditions: pneumonia, heart failure and heart attack.

This is a step in the right direction, but more needs to be done. Hopefully, one day we Georgians might be able to have available a hospital’s infection rate, which is a secret many Georgia hospitals have been hiding for years. These are numbers the individual hospitals have and know, but don’t discose to the public. It’s obvious to anyone paying attention that hospitals are worried about having to disclose infection rates, because the number would be terrifying to the general public. But if Georgia Consumers want real power in making decision about which Georgia hospitals to go to, we need to know a hospital’s infection rates.

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I am pleased to report in the verdict department of a verdict yesterday in DeKalb County, Georgia of $4.7 Million in a medical malpractice case. No doubt the families of the victim had to wait years to realize this full dose of justice. Congratulations to Plaintiff’s counsel Bill Ballard and Greg Feagle of Atlanta. Defense counsel was Jack Slover, of Hall Booth Smith & Slover, also of Atlanta. The Hall Booth firm has done the bidding of Medical Association of Georgia Mutual Insurance Company for years. The verdict restores one’s faith in juries in general, and in DeKalb County juries specifically.

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A Gwinnett County, Georgia jury has awarded $5 million in damages to the family of a new mother who drowned in a bathtub at Gwinnett Medical Center. An expectant mother, hospitalized with preeclampsia, drowned in a hospital shower after being told she was OK to shower without anyone there to check on her. This was a retrial of the case. The first trial ended in a hung jury. During this second trial, however, the jury, apparently, found that the Gwinnett Hospital nurses violated hospital policies and procedures regarding assessing a patient’s condition, determining fall risk, showering unassisted, etc.

During the second trial it was discovered that the hospital had been hiding several relevant policies and procedures that had never been produced in the first trial, but should have been under Georgia discovery rules. In addition, there were surveillance cameras that would have established when or if the nurse went into the room and it was discovered that the tapes had been altered. There was a missing thirty minute section of the tape where two cameras that corresponded to the crucial time period suddenly went dark. Fortunately, this attempted subversion of the Civil Justice System did not prevail and the jury delivered a verdict that spoke the truth about the value of a 34 year old mother who, obviously, shouldn’t have died while in the hands of the very professionals who had vowed to take care of her. My thoughts are with her family today so that they may take some relief that the jury system worked for them.

On April 9, 2008 I tried a bench trial and secured a $2.5 million verdict in DeKalb County, Georgia State Court on behalf of my clients for the loss of their unborn child due to medical malpractice. The trial was at the DeKalb County Courthouse in Decatur, Georgia. This was a tragedy to my clients that, as with all medical malpractice cases, never should have happened. The case involved a claim for the wrongful death of a 14-16 week old fetus.

The medical malpractice action arose when a doctor failed to see the fetus on

sonograms. The obstetrician told my client he could not see a fetus in her womb on ultrasound and recommended she undergo a procedure to remove any “byproducts of conception.” He then conducted a defective D & C and prescribed a medicine, Methotrexate, (which is essentially chemotherapy)

It’s not news that doctors protect their own, although that fact is now proven. In a recent study, 46 percent of physicians surveyed admitted they knew of a serious medical error that had been made but did not tell authorities about it. This in spite of the fact that in 2000, the U.S. Institute of Medicine reported that up to 98,000 people die every year because of medical errors in hospitals alone.

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There is probably plenty of blame to go around for this phenomenon: inadequate State Medical Boards, hospitals that profit off of physicians, and an attitude of many physicians that they simply should not be held accountable for their errors, because, they are, after all, doctors. Let’s hope the Georgia Composite State Board of Medical Examiners, the Board that oversees all physicians licensed here in Georgia, does a better job of cleaning their own house. Plaintiffs’ trial lawyers who handle medical malpractice cases here in Georgia, as I do, will do everything we can to hold negligent physicians accountable in a civil court of law, as long as the Georgia Legislature stops limiting a Georgia citizen’s access to the courts and, thereby, to justice.

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