After dealing with piecemeal challenges to the 2005 legislation that made it harder for plaintiffs to win suits, the Supreme Court of Georgia may soon get a case that tests the whole package, courtesy of the Fulton County Superior Court.
Attorneys for a man claiming to have been rendered quadriplegic by mistakes made in a Douglas County emergency room argued last week that the entire law passed as Senate Bill 3 should be declared unconstitutional.The bill, which among other things capped pain and suffering damages at $350,000 and protected ER doctors from liability unless they exhibited “gross negligence,” was part of a so-called “tort reform” movement in the General Assembly, said Robert D. Roll of Atlanta’s Watkins, Lourie, Roll & Chance.Pleading the case of his client, Cheon Park, Roll told Judge Marvin S. Arrington Sr. that lawmakers had “reformed several of Mr. Parks’ constitutional rights right out of existence.” Lawyers for the hospital and other defendants responded that Arrington should not subvert the will of the Legislature, which had spent several years considering the issue.Arrington, a former Atlanta City Council president, noted philosophically that legislatures are not beyond question.”In my lifetime, I’ve seen some mean legislation … ” he said. “ Sometimes, things have to be corrected. Sometimes, legislative bodies have to be stopped otherwise they’ll go absolutely crazy.”Whoever Arrington favors in his ruling regarding parts of requests that he rule SB 3 unconstitutional, the other side is expected to appeal to the state Supreme Court.The underlying case concerns Park, 59, who, according to his compliant and testimony in the case, fell from a 12-foot ladder Dec. 9, 2006. Ambulance attendants immobilized his neck and back with a cervical collar and backboard and took him to WellStar Douglas, where he told doctors was suffering pain in his neck, shoulder, arm and pelvis. X-rays were taken, and Park was treated for a dislocated shoulder and other injuries. He was released that evening. The cervical collar and backboard had been removed and Park, unable to stand, had to be lifted into an automobile by hospital staff and family members, according to the complaint. Three days later, he was taken to Grady Memorial Hospital showing signs of neurological damage and bowel incontinence, said Roll. X-rays revealed three spinal fractures, as well as ligament damage and spinal cord bruising.Park is now a C4 quadriplegic, with limited use of his arms and no use of his legs, said Roll.Park last June sued WellStar, the ER doctors and radiologists in Fulton County.Roll, who represents Park with partner Lance D. Lourie and Trent B. Speckhals of Speckhals & Cora, said that no one at WellStar would admit to having removed the cervical collar, examining the X-rays or discharging Park. In denying a jury the opportunity to decide the value of the harm suffered by Park and declaring that ER patients somehow deserve a lower standard of care than other patients, the Legislature violated Georgia’s equal protection and due process guarantees, stripped citizens of their right to a trial by jury and assumed for itself the role of the judiciary, argued Roll. Roll was joined by attorney Ned I. Miltenberg of Washington D.C.’s Center for Constitutional Litigation and Policy on Friday to argue in support of the multi-pronged attack on the legislation. The plaintiffs “are entitled to the same justice as every tort plaintiff since before the Revolution,” said Miltenberg.Arrington noted that much of the justification advanced by SB 3′s advocates concerned spiraling medical malpractice insurance costs and wondered whether the plaintiff’s arguments could “bankrupt the system” because “doctors won’t be able to get medical malpractice insurance.”Not at all, responded Miltenberg, citing studies showing that per capita rate for doctors in Georgia rising steadily over the past 30 years in all areas, including emergency care.”Average insurance premiums for doctors are 4 percent of gross revenues,” he said. “They pay more for office expenses, lights and health insurance for their employees than for malpractice premiums.”Roll wrapped up by claiming that many of the law’s terms are unconstitutionally vague, in particular the “gross negligence” standard, which Georgia law defines as the absence of “that degree of care which every man of common sense, however inattentive he may be, exercises under the same or similar circumstances.”Trying to apply a “common man” standard to a licensed professional “wreaks havoc” with efforts to define a normal standard of care, he said. “What are experts supposed to testify to?” asked Roll. WellStar defense attorney David V. Johnson pointed to SB 3′s lengthy legislative history, arguing that “every issue has been discussed by the Legislature specifically.”"The court cannot go behind the Legislature … and say the evidence considered by the Legislature is wrong,” said Johnson.Arrington begged to differ, citing the U.S. Supreme Court’s 1954 Brown v. Board of Education decision, which reversed a Louisiana state law and its own decision in Plessy v. Ferguson (1896), as but one example of courts doing just that. Carlock, Copeland, Sembler & Stair partner Thomas S. Carlock, representing defendants Radiology Atlanta Group and Dr. Robert J. Walker, nonetheless pressed the issue.”The plaintiffs would have you go back and re-try or revisit the wisdom, or lack thereof, of the Legislature,” said Carlock. “They think the Legislature was wrong.”But, he said, citing the state Supreme Court’s 2000 decision in Old South Duck Tours v. Savannah, 272 Ga. 869, Georgia precedent makes it clear that courts may not interfere with legislative discretion as long as those decisions are reasonable efforts to attain a legitimate public purpose and do not violate due process.”[The Legislature] has spoken,” he said. “If somebody wants to change it, the place is down at the Legislature. The Legislature should not be second-guessed.”After Arrington noted that legislatures are not infallible, R. Page Powell Jr., representing defendants Dr. M. Joseph Gilhuly and physician’s assistant David Cotter, assured Arrington that they were not questioning the court’s ability to review legislation. “Our position is not that the Legislature has to be deferred to in all respects,” said Powell. But, he said, virtually all of the issues raised had been discussed at length during “years of testimony” as the legislation was crafted.”They want you to re-open that box,” he said.Arrington, who had earlier vowed to move the case with all due speed, said he would take the arguments under advisement. Atlanta attorney Lyle Griffin Warshauer, a member of the Georgia Trial Lawyers Association Constitutional Challenge Committee, was present for the arguments. The case provides a sound opportunity to raise questions about the law, she said.”This is about as well put-together a challenge as there has been so far,” said Warshauer.”The briefs are pretty extensive, and there’s some solid evidence as to the due-process arguments … and this is the first case I’m aware of that challenges the damage caps.”"Whatever happens will be appealed,” she said. “SB 3 is completely unique legislation.” Court watchers are waiting for the justices to rule in Mason v. Home Depot, S07A1486, challenging another part of the law establishing a more general rule that tightens standards for admission of expert testimony in all civil cases. That rule is sometimes known as the Daubert rule for the 1993 U.S. Supreme Court case to which federal rule makers responded in crafting a similar, but not identical, rule of evidence.In 2006, the high court ruled unconstitutional a section of SB 3 that allowed medical malpractice defendants to demand that their cases be heard in the their home counties, and last year the court struck down a section that required medical malpractice plaintiffs to open their medical records before they were allowed to file suit.But in November, a provision of the law tightening requirements for expert witnesses in all civil cases was affirmed by the court. Powell was the winning lawyer in that case.The case is Park v. WellStar, No. 07-cv-135208.