New tort reform provisions facing attack in Georgia

Recently passed tort reform provisions have come under fire in Georgia, as plaintiffs in two medical liability cases are asking the state's Supreme Court to throw out laws that give defendants more say in where cases can be tried.

One challenge targets a medical liability reform provision allowing defendants in malpractice cases to seek to transfer a case to their home county, provided that is where the alleged incident took place.

Georgia physicians favored such a measure, especially in situations with multiple defendants, because it would prevent "venue-shopping" by plaintiffs' attorneys.

The challenge stems from a medical liability case involving Bart Turner, a 58-year-old who had a heart attack and is now disabled, according to court documents. Turner alleges that the emergency department physician misdiagnosed his chest pains as acid reflux and sent him home. He is seeking damages from the physician, as well as Emory Cartersville Medical Center in Cartersville, Ga., and its parent company, Emory Healthcare.

Hospital wanted new venue

The lawsuit originally was filed in DeKalb County, but the hospital filed a motion to transfer the case to Bartow County, where the hospital is located. The trial court judge denied the motion, however, ruling that the new law would narrow the plaintiff's venue options in an unconstitutional manner.

The plaintiff's attorney argues that the judge made the correct decision. But the defendants say the court is wrong -- the new law provides fairness, not inequity, to the justice system.

Physicians agree. The Medical Assn. of Georgia, which filed a friend-of-the-court brief in the case with the Georgia Hospital Assn., argues that prior case law says defendants, and not plaintiffs, have the privilege of choosing venue. Likewise, the tort reform law was written in a way that recognizes "defendants have the right to be sued in the county in which they reside," according to the brief.

The choice of venue was one of several provisions in a comprehensive medical liability reform package signed into law earlier this year. A key component of that legislation was a $350,000 cap on noneconomic damages. That provision has not yet faced a constitutional challenge.

The most convenient location

The second court challenge also stems from a medical liability case, although the law in question applies to tort cases in general. A patient, Daryl Garland, accused several physicians and the facilities that employed them of failing to properly diagnose and treat his progressing stroke.

The defendants in the case filed a motion to change the venue from Fulton County, where one physician resided, to Bartow County, where the alleged incident occurred and where several of the defendants are located. The motion, which the trial court judge granted, was based on the state law that says defendants can choose a different venue if they can make a case that their chosen venue is a more convenient location for the parties involved.

The plaintiff's attorneys say the new law should be declared unconstitutional, or at least should not apply to this case, which had been pending for more than three years before the measure was signed into law.

But attorneys for one of the facilities named in the lawsuit argue that precedent exists for a law to apply retroactively to a case when it only deals with a procedural change and does not change the substance of a plaintiff's argument.

The recently passed laws "do not in any way impair or impact [the] plaintiff's ability to seek recovery for medical malpractice; rather, they affect only the location where [the] plaintiff's claims will be litigated," the defendant's brief reads.