Medical Malpractice Damages Cap Before the Supreme Court

Posted on September 18, 2009 by Jason Schultz

Attorneys for a woman who suffered severe facial disfigurement as a result of a botched cosmetic surgery procedure have told the Georgia Supreme Court about the unfairness and injustice of tort reform laws that cap medical malpractice damages.

In 2005, enthusiastic lawmakers cheered on by vested interests, including health care companies and insurers, passed sweeping reform laws that limited the non-economic damages that an injured patient could receive at $350,000. Non-economic damages include those for physical and mental pain and suffering and diminishment of the quality of one’s life. Since the law was passed, hundreds of patients who have suffered serious injuries from the negligence of their health care professionals, including doctors and nurses, have had their recovery options limited.

 

One of those patients, Betty Nestlehutt, visited an Atlanta cosmetic surgeon for a facelift. The results of that surgery illustrate how important it is that doctors continue to be held fully accountable to their patient’s for their negligence. Nestlehutt’s skin was left severely disfigured, and even after extensive treatment, continues to be scarred.

 

A Fulton county jury returned a verdict of $115,000 for her medical expenses and $1.15 million in non-economic damages. The facility, where the surgery was performed, appealed against the verdict. This week, the Supreme Court heard an appeal, and will decide whether placing caps on damages in medical malpractice cases is unconstitutional in Georgia.

This is definitely a case that has been closely followed by injured patients, safety advocates and Fulton County Georgia medical malpractice lawyers . For four years, we have waited and watched frustrated, as the cap severely restricted the rights of victims injured by medical negligence.  Medical malpractice lawsuits are notoriously expensive to litigate, and when damages are capped, it's makes it economically infeasible to pursue a number of meritorious claims for injured patients. The cap limits the rights of ordinary citizens in Georgia and we hope that the Supreme Court will uphold the Georgia Constitution and strike down the cap.

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Washington State's New Insurance Law Being Closely Watched Across Country

Posted on October 2, 2007 by Jason Schultz

Georgia needs to pass an insurance law similar to the one recently passed in the State of Washington requiring insurers to pay triple damages and attorney's fees if they are found to have acted in "bad faith".  Unfortunately, the bad faith law in Georgia has very little deterrent value as it only provides wronged policyholders 25% of the actual damages plus attorney's fees.  That is a minor penalty to pay especially with smaller claims.

Across the country, insurance companies, trial lawyers and legislators are closely watching a November referendum in the state of Washington that could change how insurers are required to treat their customers.  Insurance companies are using the referendum process to try to strike down the new law in Washington state.

Insurance giants like Allstate, State Farm, Safeco and Farmers have poured more than $8 million into the referendum battle. Their goal is to convince voters to reject a law passed earlier this year that could force insurers to pay up to triple damages and lawyer fees if they fail to pay a legitimate claim and then lose in court. A "yes" vote on the referendum allows the law to go into effect while a "no" vote strikes the law down.

The campaign to woo voters has already begun. The insurance industry-backed group is already running television commercials depicting greedy lawyers planning to sue and warning consumers that the law will lead to frivolous lawsuits and higher rates.

It's not a new tactic by the insurance companies. Earlier this year, CNN exposed a controversial insurance industry strategy that began in the mid-1990s.

Former insiders say insurance companies began limiting or denying legitimate claims in minor injury cases and reaped billions in profits as a result. The strategy has tied up courts across the country -- over minor claims, judges told CNN -- for months and even years. How did they do it?

"It really came down to basically three elements: a position of delay, a position of denying a claim and ultimately defending that claim that you're denied," said Jim Mathis, a former insurance industry insider.

Supporters of the law say it forces insurance companies to pay legitimate claims in a timely and fair fashion and frees the courts from relatively minor cases that clog the system for months and even years.  If companies act in good faith, they are not going to have a problem and there will be no penalty.  On the other hand, if they are found to have acted in bad faith with their own customers, then they will have to pay a reasonable penalty for their wrongdoing.  This provides a reasonable deterrent to the insurance companies to do the right thing, especially when it comes to their own policyholders to whom they owe a fiduciary duty of good faith.

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