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Cap on noneconomic damages is unconstitutional, Georgia judge says

The case likely will head to the state Supreme Court, which has invalidated other medical liability reforms.

By Amy Lynn Sorrel — Posted June 2, 2008

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A Georgia trial court ruling is the latest assault on reforms that curb pain and suffering awards in medical liability cases.

Fulton County Superior Court Judge Marvin S. Arrington Sr. found the state's $350,000 limit on noneconomic damages unconstitutional, saying it violated patients' equal protection rights and access to a jury trial. Lawyers involved expect an appeal, which would send the issue to the state Supreme Court.

"There is no doubt that the caps go to the core of a party's right to have a jury determine his or her claims," Arrington wrote in the April 28 opinion.

"One category of professional defendants have been singled out for special protection, with the result that their victims have been singled out for special disadvantages and limitations."

The decision comes on the heels of a similar one in Illinois, where a trial court last November struck down the state's $500,000 cap for violating the separation of powers between the Legislature and judiciary. The case was appealed to the Illinois Supreme Court.

The Litigation Center of the American Medical Association and State Medical Societies and the Illinois State Medical Society filed a friend-of-the-court brief in May. A ruling is expected later this year.

Physicians say the court decisions threaten to undo improvements in the medical liability environment in their respective states. Doctors promised to defend the reforms, which they say strike a balance between patients' legal rights and concerns over the availability of medical care.

"Tort reform is working," said Donald Palmisano Jr., Medical Assn. of Georgia general counsel. The medical society plans to file a friend-of-the-court brief when the Georgia case reaches the state's high court.

Palmisano said the cap entitles patients to unlimited economic damages, such as medical expenses.

In the past three years, medical liability insurance rates have stabilized, companies reported an overall drop in claims filings and defense costs, and competition is on the rise. The state also saw a 10% increase in obstetricians at a time when few were practicing.

"What this all results in is greater access to care for patients, and that's what we should be looking at," Palmisano said.

Despite similar progress in Illinois, ISMS President Shastri Swaminathan, MD, said excessive jury awards still plague the legal system, and the state's cap is critical to help retain doctors.

"We cannot continue this jackpot system," he said. "[Physician] work force shortages and access to care problems became obvious to the [Illinois] Legislature, and that's why they passed this law."

A February AMA report showed that states with noneconomic damage limits have an increased supply of high-risk specialists. Doctors in those areas also pay at least 17% less in insurance costs, "which helps physicians continue to practice medicine as liability premiums remain at historically high levels," AMA Board Chair Edward L. Langston, MD, said in a statement.

Trial lawyers contest reforms

But trial lawyers argue the caps come at patients' expense and praised the courts for restoring their rights.

Trent B. Speckhals, a plaintiff attorney in the Georgia case, said lawmakers "invaded the providence of the jury and carved out special protections [for doctors] to the detriment of a group of people that are severely injured."

Judges have the authority to set aside any improper verdicts, he said. The Georgia Trial Lawyers Assn. also pointed to contradictory research from the Harvard School of Public Health and George Mason University. The March study showed that most ob-gyns' decisions to relocate or stop practicing are unrelated to insurance premiums or tort reforms.

Illinois' 2005 law put restrictions on medical liability insurers, requiring them to publicly disclose their rate data, according to Illinois Trial Lawyers Assn. President Bruce M. Kohen.

"Instead of focusing on taking away citizens' rights, doctors should focus on a meaningful solution, and that is insurance reform," he said.

The Georgia and Illinois trial bars declined to comment on plans to get involved at the state Supreme Court level.

The Georgia case poses an additional threat to liability protections for physicians involved in emergency care, an issue at the heart of the underlying medical liability claim. Plaintiffs challenged the validity of a provision under the reform statute requiring a higher standard of proof in emergency cases. The court said it would take up the question in a separate ruling.

Defense lawyers declined to comment, due to the pending litigation but said they are weighing their options to appeal the decision addressing the cap.

The Georgia Supreme Court in 2006 declared unconstitutional the venue portion of the liability reform statute. The law would have allowed defendants in joint medical liability cases to transfer lawsuits to the county where the alleged negligence occurred.

Illinois justices struck down award limits in medical liability cases in 1976 and 1997.

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ADDITIONAL INFORMATION

Caps under fire

Recent legal and legislative actions threaten caps on noneconomic damages in medical liability lawsuits:

Georgia: A trial court in April found the $350,000 award limit an unconstitutional violation of patients' equal protection and jury trial rights. An appeal would send the issue to the state Supreme Court.

Illinois: The state Supreme Court this year will decide the validity of the $500,000 cap after a trial judge struck down the law in November for violating the separation of powers between the Legislature and judiciary.

Colorado: Physicians staved off a legislative effort by trial lawyers to raise the $300,000 limit on pain and suffering awards and exempt physical impairment and disfigurement injuries from the cap. The bill won Senate approval in February but died in the House in April.

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