Dear Friends and Constituents:One of my children’s favorite fictional characters, Headmaster Dumbledore from the Harry Potter series, tells his students at one point, "It takes great courage to stand up to one’s enemies but even greater courage to stand up to one’s friends." This week I have greater appreciation for this quote because I need to express to my fellow Republicans in the House my deep reservations about
SB 3, the tort reform bill that is scheduled to be voted on next week in the House. The bill contains serious flaws that I believe must be addressed before passage.
This letter will spell-out those needed changes in excruciating detail because you deserve to know not only where I stand, but why. On the issue of tort reform, too often this complicated problem is reduced to short sound bites. I want to give you an entire meal to chew on. In a few areas, I believe SB 3 goes too far. In some others, it clearly does not go far enough. In a couple of situations, its proposals inadvertently take us in just the opposite direction from where it intends to go.
I want to start by emphasizing how much I agree with the stated purpose of SB 3 and the need for tort reform. I have been practicing law for 21 years as a civil litigator. Most of my law practice is spent representing defendants in personal injury actions. I have defended doctors, hospitals, businesses, nursing homes, funeral homes, homeowners, insurance carriers, churches, charities, schools and every other kind of entity that a plaintiff’s lawyer’s creative mind could think of to sue. I know the anger of my clients when they are trapped in a frivolous suit. I have shared their frustration in cases in which the plaintiff views an injury as a lottery ticket to wealth.
For almost 30 years, issues on tort law in this state were essentially decided by Tom Murphy (an old school plaintiff’s lawyer) sitting alone in his Speaker’s office. As a result, we have a strongly pro-plaintiff playing field in this state on issues like venue shopping, use of experts, employer liability, offer of judgment, and comparative negligence that have a real impact on the rights of a defendant in a civil case and the rates of insurance we all pay. The medical insurance rates are merely the proverbial canary in the coal mine. A new direction is needed.
Change, however, must be properly applied so that we cure the problems in our system and do not simply create new inequities to replace the old. Furthermore, we must maintain the core principles in our legal system that require the truly wronged and injured to be made whole and all defendants to stand equally before the law.
Therefore, any solution to our present medical malpractice crisis must provide for the following:
1. Quality available health care;
2. A level playing field in court that protects the innocent and allows the truly wronged to be made whole; and
3. Uphold the Republican principles of personal responsibility and limited government interference in private disputes.As you read this e mail, I invite you to also go to
http://www.legis.state.ga.us/ and pull down the bill that was approved by the House Select Committee on Civil Justice Reform late Friday afternoon (the revised SB 3 bill should be available for viewing on Monday). My analysis below tracks the bill and it might help you to follow my thoughts on its problems and ways that I believe we can improve on it. As outlined below, I, along with several other Republicans in the House, intend to lay out specific constructive amendments to fix the problems.
As an old law professor of mine liked to say, “The devil is in the details.” So let me now turn to the details on the problems in the revised SB 3.
Venue“Venue” in the law essentially means which county a lawsuit can be tried. A defendant must be sued in the county where he or she resides. Where there is more than one defendant from several different counties, the lawsuit can be tried in any one of the defendants’ counties.
The problem that has arisen is that some plaintiff’s attorneys will drag in a defendant who may have only been marginally involved in the accident in order to sue other defendants in a county that the plaintiff feels is more favorable.
For instance, if Sally is injured by Larry but Larry resides in Hall County and Sally thinks that she can get a better verdict in Fulton County (which often is true), she may go out and also sue Darryl, who had little to do with the case but lives in Fulton County.
SB 3 tries to deal with this problem by saying that if Darryl were dismissed from the suit by the judge, or the jury found Darryl not liable, then the case will have to be sent back to Hall County and the remaining parties have to start over.
This may solve the problem with venue shopping but it leads to a lot greater time and money spent by Larry in defending the case. There is a better way.
We need to change the venue law to allow Larry and Darryl to agree at the beginning of the lawsuit as to which of the two counties they live in the suit will be tried. This will take away Sally’s incentive to sue Darryl to begin with and it will cut down on Larry’s time and cost in defending the lawsuit.
Pre-suit investigationLet me continue with the story of the lawsuit between Plaintiff Sally and Defendant Larry by adding the fact that Larry is a doctor and Sally claims Larry committed medical malpractice.
Under the present law, Sally must file with her lawsuit against Dr. Larry an affidavit from a medical expert that says in his opinion Dr. Larry committed malpractice.
As a practical matter, this requirement has done little to curb frivolous lawsuits. Instead it has simply led to the creation of a cottage industry of “experts” whose primary business is selling their opinions to lawyers. I invite you to visit the web site
Experts.com for an example of this new business boom.
The only thing SB 3 says to address the issue of the affidavits is to lengthen the time that Dr. Larry has to object to the affidavit. Under the present rules, Dr. Larry must object to the sufficiency of the affidavit at the time he files the answer. Under SB 3, he will have until the end of the discovery period (6 months or more) to raise objections.
This change will only increase the cost of litigation for both sides. Instead of dealing with the issue immediately, we will now drag out the case over several months and thousands of dollars before it is addressed.
I want to go in the
opposite direction. We should require extensive pre-lawsuit investigation by both sides before formal litigation can commence. Both sides should be required to conduct an extensive investigation and, if justified, settlement negotiations. This has been tried in Florida and other jurisdictions with success. It leads to meritorious claims being settled quickly and creates a high wall to protect against frivolous lawsuits from ever being filed in the first place.
Medical recordsA chronic problem in lawsuits is obtaining medical records. Recent federal law has made getting those records even harder. If Plaintiff Sally wants to pursue a lawsuit against Dr. Larry she should be required to sign a release authorizing the release of medical records.
SB 3 addresses this need but it applies only to medical malpractice claims. The changes should apply to
all lawsuits for personal injury and we need to change SB 3 to do so.
Offer of settlementUnder the Federal court rules, if a defendant offers a settlement to a plaintiff and it is rejected by the plaintiff and the plaintiff subsequently fails to win a judgment a least as big as the amount offered, the defendant can recover his litigation cost he incurred from the time the offer was made through trial.
This is a great tool for pushing for reasonable settlement of cases and many of us in the legal field have been advocating for years for it to be used in Georgia courts.
The good news is that SB 3 tries to put this rule into Georgia law. The bad news is that it allows an undefined “bad faith” exception to this rule that allows the judge too much discretion to throw out the impact of the requirement. Most states provide a detailed list of permissible exceptions to this rule. We need to do the same in Georgia. In addition, we need to have the issue settled by the jury and not the judge. (Too often judges are not willing to impose attorney’s fees and cost sanctions out of deference to the lawyers. Juries are not usually so squeamish.)
Who is an expert?As I mentioned earlier, a cottage industry of “experts” have developed in recent years. Many of these people have not actively engaged in their professions in years and primarily earn their living selling their opinions to the highest bidder.
SB 3 tries to address this problem but the language is too vague to keep many of the worst charlatans out of the courtroom. We need to tighten the requirements for an expert to require that at least
75% of his professional practice be devoted to his profession and not merely acting as a hired gun.
Emergency-room immunityReturning to the lawsuit between Plaintiff Sally and Dr. Larry, assume for a minute that Dr. Larry is on call to an emergency unit. Also, assume that on the night that Sally goes into the hospital following an auto accident, Dr. Larry had a few drinks before being called into the hospital to operate on Sally. Dr. Larry had sincerely thought he was okay to operate because he didn’t feel intoxicated; but he was wrong. As a result, Sally is left paralyzed by Dr. Larry’s bungled surgery.
These facts come from an actual case I helped defend shortly after I began practicing law. A jury found the doctor to be negligent but failed to find that he acted willfully or wantonly.
Unfortunately, some doctors do bad things and people get hurt. The law should protect these people. In my earlier case, the plaintiff was able to collect for his injuries. The failure of the jury to find willful and wantonness only affected the plaintiff’s ability to collect punitive damages. This was a just result - even if I was on the losing side.
Under SB 3, however, Sally would be barred from recovering anything from Dr. Larry unless the jury found the Dr. Larry acted “willfully and wantonly.” This creates good faith immunity for Dr. Larry. He can act negligently or even grossly negligent, as outlined above, and not be liable for Sally's damages.
This goes
too far. We need to tighten-up on what constitutes negligence in an emergency room and protect doctors from liability merely because of bad results beyond their control. But I do not believe that we can justify giving the medical field blanket immunity from negligence or gross negligence.
Joint and Several LiabilityUnder the present law, if Dr. Larry was 99% liable for Sally’s injuries and Dr. Darryl was only 1% responsible, but Dr. Larry was broke, Dr. Darryl could have to pay the entire claim brought by Sally. That’s wrong and it needs to be changed.
Often times, however, it’s not so easy to divide out responsibility between two defendants. For instance, if Dr. Larry and Dr. Darryl were both operating on Sally and both were negligent, resulting in one single injury to Sally, how do you divide up the percentage of responsibility?
SB 3 does not provide for the second scenario. It requires the jury to come up with a percentage division even where it’s impossible to do so.
There is a better way. We should require the jury to affirmatively decide whether the liability can first be apportioned among the defendants but, if it cannot, allow for joint liability. In other words, each case should be looked at individually. One rule simply does not fit all cases.
Pain and sufferingPain and suffering damages are called “general damages” under the law because they cannot be computed by a calculator. These damages, however, are real -- the pain someone feels every day as a result of a severe burn injury; the difficulty a brain injury victim goes through life with day in and day out; or the suffering a paraplegic goes through straining to do the daily tasks the rest of us take for granted. The law recognizes that there must be a way for compensating for these difficulties as well as the fixed cost caused by the injuries.
I recognize that these kinds of damages have been abused by occasional runaway juries in the past and I’ve had clients trampled on by them. We need reform in this area but I do not believe that a hard cap applied in every case without exception is the way to go.
Let me abandon the plight of Sally and Dr. Larry for a moment and tell you about another case I settled last year. The plaintiff was the daughter of a prominent doctor who in the past has often come to the Capitol arguing for damages caps. The daughter suffered a brain injury caused by an accident on an ATV ["all terrain vehicle"]. The ATV was owned by my clients and the doctor accused them of causing the injury. It was interesting to me that when the issue involved his own daughter, the doctor suddenly was not interested in limiting his daughter’s recovery for pain and suffering she would suffer from her permanent brain injury. He wanted a settlement to reflect the difficulties she would face for the rest of her life.
Under SB 3, there is a cap on pain and suffering damages of $250,000 per defendant with a maximum award of $750,000. No exceptions are recognized. There are several problems with this approach as follows:
- What difference does it make whether there are one or three defendants when it comes to the amount of plaintiff’s pain and suffering?
- Doesn’t this approach actually encourage the plaintiff to go out and find more possible defendants to sue in order to collect more in pain and suffering?
- Is this arbitrary cap fair in cases involving catastrophic injury, death or vegetative state of the plaintiff?
I sponsored a bill last week, HB 329 that would provide for parameters on pain and suffering without a simplistic arbitrary cap. It is co-sponsored by
Wendell Willard, the Chairman of the Civil Judiciary Committee, David Ralston, the Chairman of the Non Civil Judiciary Committee and six other Republicans. It modifies SB 3 as follows:
1. $750,000 cap regardless of the number of defendants; and
2. The cap will not apply in the following circumstances:
a. catastrophic injury;
b. death; or
c. Vegetative state.Future Medical ExpensesUnder the law as it presently exists, Sally can recover from Dr. Larry not only for her past medical expenses but her projected future medical expenses as well. The way it now works is that the plaintiff is given a lump sum of money. Often, this leads to the plaintiff blowing the money in a short period of time and having nothing left for her future medical expenses.
SB 3 as modified by the House Special Committee on Civil Justice Reform does not provide for this problem. We need to require future medical awards be placed in an annuity that is paid out over time. That will reduce defendant’s up front cost and insure that the money is there when the plaintiff needs it.
ConclusionAs stated in my opening, I agree with the goals of SB 3 to return Georgia tort law to a fair and level playing field. However, as presently written, SB 3 will fail in the test of time. In some areas it provides a superficial band-aid where surgery is required. In others, it locks the law into rigid uniform rules when flexible parameters are more suitable. These failures may force the courts to throw out many of SB 3’s key provisions, including the rigid caps, under theories that they deny plaintiffs’ equal protection and their right to be made whole in court.
We can do better. Our present medical crisis was created over several years and cannot be fixed in a day. The modifications suggested herein, however, will go along way toward restoring sanity to the civil tort system and maintaining the core principles of justice.
I invite your response to my positions that I have set out in this e-mail.
Edward Lindsey
House District 54
Committees: Civil Judiciary (Vice Chair), Education, Industrial Relations
404-656-0188 (Legislative office)
404-926-4155 (District office)
6th District UpdateOne correction to our story from last week regarding
Rusty Paul looking at running for the 6th District Chairmanship. We were informed that
Mike Dvorscak, current 1st Vice-Chair of the 6th, has been running for chairman for a few months. So, it looks like we have a race on our hands...
