The Medical Association of Georgia statement said there are about 1,000 more physicians in Georgia since the tort reform law passed in 2005, according to a study of private practice physicians in the state by the Carl Vinson Institute of Government at the University of Georgia. MAG's president also pointed to statistics from MAG Mutual Insurance Co. to the effect that medical liability insurance costs are down by 18 percent in the state since 2005 and that MAG Mutual's premiums have not increased since 2005.
Malone, the Nestlehutts' lawyer, countered that according to the Medical Liability Monitor, doctors in Georgia experienced a 150 percent increase in premiums in the four years leading up to SB 3 without a corresponding increase in claims. Since then, he said, the state's doctors have, at most, seen only a 7 percent reduction in their premiums. At the same time, he said, MAG Mutual has reported quadrupled net income.
Moreover, said Malone, the rate of medical errors has not decreased since 2005. "All lawyers want to work together with our legislators and public servants to find real solutions to real problems," said Malone. "Let's just take the politics out of this."
The unanimity of Monday's ruling was striking, especially given that it included Perdue's two appointments to the high court, Melton and Nahmias. Perdue signed SB 3 into law after the Republican leadership made a major push on getting tort reform passed.
Melton was Perdue's executive counsel when the governor signed the legislation, although in electing to participate in most of the SB 3 decisions handled by the court, Melton has said he had very little to do with the bill.
Nahmias authored a concurring opinion about how the court should decide whether to apply its decisions retroactively. But he was unequivocal on the key jury trial right issue in the case. "The General Assembly has broad authority to address the many vexing issues related to health care costs and the availability of health care providers," wrote Nahmias, "but the Legislature's discretion is bounded by the fundamental rights enshrined in our Constitution."
Atlanta lawyer J. Marcus "Marc" Howard, the co-chairman of the Georgia Trial Lawyers Association's amicus committee and a member of Nahmias' campaign committee, said the unanimity of the decision showed that the court was ruling based on the constitution, not politics. "And I think that is a very positive thing, because it means we don't have a political court," said Howard, who noted GTLA hadn't filed an amicus brief in the case. "The court is ruling on the basis of how it interprets the law, and not who they are trying to curry favor with."
Atlanta lawyer Thomas S. Carlock of Carlock, Copeland & Stair, a member of the defense team in Monday's case, didn't quarrel with that. "I think they did what they thought was right," said Carlock. "I'm just not one of those who buys into our Supreme Court ruling on something based on being re-elected."
Notwithstanding Nahmias' concurring opinion, the justices appeared to all agree that the decision should apply to all pending cases, not just those to be filed in the future, although Melton's decision to join neither the portion of Hunstein's opinion that addressed retroactivity nor Nahmias' concurrence made his views on retroactivity -- and that of an apparently split court -- unclear.
Hunstein's opinion, joined in its entirety by Justices Robert Benham and Hugh P. Thompson, said that under a three-factor test, the decision should be applied retroactively because, among other reasons, the constitutionality of the caps had been in doubt.
In his concurrence, joined by Presiding Justice George H. Carley and Justice P. Harris Hines, Nahmias wrote that he thought the three-factor test was inappropriate and a decision invalidating a statute as unconstitutional should always be applied to pending cases.
The case was Atlanta Oculoplastic Surgery v. Nestlehutt, No. S09A1432.
Related link: Video of Georgia Supreme Court oral arguments