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Tort Reform Challenges By Injured In Georgia, Indiana

Posted by Jane Akre
Wednesday, September 16, 2009 11:59 PM EST
Category: Protecting Your Family
Tags: Tort Reform, Georgia, AAJ, U.S. Chamber of Commerce, Jury Caps, Paiin and Suffering

Injured patients are pushing back against the Constitutionality of tort reform in Georgia and Indiana.


IMAGE SOURCE: Georgia Supreme Court Web site


A case before the Georgia Supreme Court should determine whether juries have the right to decide what monetary award should be given an injured patient, without that decision automatically revised and reduced.

Caps on jury awards were the heart of the state’s 2005 tort reform law that Republicans brought to Georgia after taking over the legislature in 2004.

In the case before the justices – Betty Nestlehutt, 71, decided that she needed a facelift.

The Marietta real estate agent underwent the procedure with an Atlanta plastic surgeon, but within weeks the skin around her face began to die.

The medical procedure had cut off the blood flow to her face. As a result she had gaping wounds opened from her temples to her chin, reports the Atlanta Journal- Constitution, and was left permanently disfigured.

In her first trial against the surgeon, Nestlehutt was awarded $115,000 for past and future medical expenses and $1.15 million in non-economic damages including $900,000 for pain and suffering.

But regardless of the degree of injury or the recklessness of the doctor, Georgia tort reform caps noneconomic damages (pain and suffering) to $350,000 with $115,000 for medical expenses.

Not surprisingly, tort reform is backed by the industries harmed the most by injured citizens, the health care and insurance industries, supported by the U.S. Chamber of Commerce.

Nestlehutt filed a challenge to lift the caps.

Last February, a Fulton County judge ruled the state law and caps were unconstitutional, reports the Atlanta Business Journal.

A person loses their right to a trial by jury with tort reform, ordered Fulton State Court Judge Diane Bessen. She declared the cap unconstitutional because it denies one the rights established under the Seventh Amendment to the U.S. Constitution (right to a trial by jury), and also the separation of powers and equal protection.

The surgeon filed an appeal which is now before the state Supreme Court, which on Tuesday debated whether the initial ruling should be upheld, essentially overturning tort reform in Georgia.

The lawyer for the surgeon, Jonathan Peters, tells AJC that the state legislature can modify jury trial issues and procedures and that capping pain and suffering keeps doctors from leaving the state by lowering their medical malpractice premiums.

But Michael Terry, who represents Ms. Nestlehutt says this issue puts the burden of health care costs squarely on the injured patient.

"They said they wanted to fix health care," he said. "But they put the entire burden upon the backs and shoulders of those people who are most injured."

46 states have enacted some form of tort reform.


Lawyers in Indiana are challenging the state cap in that state on medical malpractice cases.

There, a widower, who won $8.5 million against a hospital, faced the award being reduced to $1.25 million under tort reform.

Attorneys for the man have filed a challenge saying that Indiana’s Constitution states that jury decision must remain intact and that the Legislature cannot grant exceptions.

That case was filed after the death of Debbie Plant, 47, a mother of three. She died in 2001 after Community Hospital of Indianapolis failed to x-ray her abdomen that would have shown a bowel obstruction.

After Plank’s death, the hospital contacted her husband with a customer satisfaction survey. #

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