Tort reform law challenged in Georgia
■ The state Supreme Court will decide if a law raising burden of proof in emergency care lawsuits is constitutional. Doctors say reversal would hurt access.
By Amy Lynn Sorrel — Posted Nov. 4, 2009
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Emergency care in Georgia will suffer if a tort reform measure about medical liability lawsuits concerning emergency care is not upheld.
That's according to a friend-of-the-court brief the Medical Assn. of Georgia and the Litigation Center of the American Medical Association and State Medical Societies filed in a case pending before the Georgia Supreme Court (link).
The state's high court will determine the constitutionality of the 2005 reform measure, which mandated a higher burden of proof in such lawsuits. Plaintiffs must prove by a standard of clear and convincing evidence that a physician committed gross negligence. Oral arguments in Gliemmo v. Cousineau began Oct. 6.
Physicians credit the statute with lowering their professional liability insurance costs and keeping emergency doctors in practice. They say the Legislature has a legitimate right to address such access concerns as a matter of public policy.
Trial lawyers, meanwhile, contend that the law gives preferential treatment to emergency physicians, and the higher standard precludes legitimate claims from making it to court.
A trial court had rejected those arguments, however, when it turned down a request by the plaintiffs to declare the statute an unconstitutional special law. The case was appealed directly to the state Supreme Court. It is unclear when that court will rule.
Meanwhile, justices also are considering another provision of the 2005 reform statute in a separate case testing the constitutionality of the state's $350,000 cap on noneconomic damages.
Oral arguments in Atlanta Oculoplastic Surgery v. Nestlehutt were heard Sept. 15. MAG and the AMA Litigation Center also filed a brief in the case urging the court to uphold the cap (link).