Judge strikes down cap on malpractice suit awards

By STEVE VISSER
The Atlanta Journal-Constitution
Published on: 05/01/08

A Fulton County judge has struck down the cap on monetary awards in a medical malpractice case, a decision that if upheld on appeal could undercut a major component of Georgia’s tort reform laws.

Superior Court Judge Marvin Arrington wrote in an order released Wednesday that the legislative cap of $350,000 for noneconomic damages such as pain and suffering was unconstitutional because it gave special protections to the medical profession. This meant people injured by doctors had less protection than those injured by, say, a manufacturer’s product.

“It is absurd to say that if you get injured by a product that the jury can decide your noneconomic damages, but if you get injured by medical malpractice, it can’t,” said Trent Speckhals, one of the lawyers for Cheon Park, the plaintiff in the case.

Park, a 60-year-old retired restaurant owner, fell from a ladder in 2006 while trimming trees at his home near Douglasville and was taken by ambulance to the WellStar Douglas Hospital. He and his wife, Lynne, are suing the hospital and two doctors because he claims they missed injuries to his neck and spine that resulted in his becoming a quadriplegic.

The case has not yet gone to trial, and Arrington’s decision does not apply to other cases. But if the defendants appeal, it will give the Georgia Supreme Court a chance to overturn the caps in malpractice cases.

Attempts to reach David Johnson, the attorney for WellStar, were unsuccessful.

Thomas Carlock, an attorney for Dr. Robert Jeffreys Walker, one of the defendants in the case, said he will consult with the doctor next week to decide whether to appeal.

The legislature approved the $350,000 cap in 2005 as part of a civil-justice tort reform law over the opposition of the Georgia Trial Lawyers Association and consumer groups. Doctors and hospitals said the law was needed to hold down malpractice-insurance premiums.

In reaction to Arrington’s ruling, the Medical Association of Georgia said tort reform had made doctors’ services, such as obstetrical and general surgery, more accessible because of reduced insurance premiums.

“The year before we passed the law, we lost 10 percent of the doctors delivering babies in the state,” said David Cook, the medical association’s executive director.

In 2006, the Georgia Supreme Court stuck down another provision of tort reform when it ruled that defendants couldn’t decide in which county their medical-malpractice case was tried.

When the malpractice cap was enacted, trial lawyers complained its real effect was to reduce the incentive for doctors, hospitals and insurers to negotiate substantial settlements because they wouldn’t face the threat of large verdicts for pain and suffering and other noneconomic damages, which are the most subjective part of jury awards.

Economic damages, the other part of verdicts, are based on such things as the cost of care and the loss of earning power.

In his written opinion, Arrington complained that limiting the caps meant that in many cases, large jury awards would be issued only to wealthy people who could point to the loss of large incomes.

“The statute effectively puts substantial limitations on the rights of the poor and middle class to recovery while leaving the right to virtually unlimited recoveries unimpeded for the wealthy,” Arrington said. “The disabled manager of a hedge fund, a corporate CEO, an entertainer or such other person whose income is in the tens of millions of dollars has a claim under Georgia law that would dwarf the amount awarded in any case for pain and suffering.”

Arrington has made controversial rulings in the past. In 2003, he ruled the state’s blue laws regarding Sunday liquor sales were unconstitutional because it was “silly” and “discriminatory” to permit restaurants to sell alcohol on Sunday while prohibiting bars from being open. The Supreme Court reversed him later that year.