Atlanta Hyperbaric is changing and so is this blog. For now, at least, I want to wear my lawyer’s hat and discuss legal topics. My law practice is inextricably intertwined with medical issues anyway–what a surprise.
The law is a moving target. Even before officious legislatures began telling us how much water we can use to flush a toilet, judges made law when deciding cases and, of course, they still do. But nowadays, the most sweeping changes in the law come out of our legislatures, which are venal by nature. Legislatures enact laws that are reactive to events and influences and calculated to promote legislators rather than the general welfare. Nothing new here. We all suffer under some very bad law and we try to muddle through.
Our Federal and State governments have self corrective mechanisms that occasionally do fix the worst messes the legislatures produce. Once in a while the legislature creates a law that so offends legal principles that a court will show some spine and kill the law. A unanimous Georgia Supreme Court did just that recently.
In the November 2004 election, Republicans took control of both houses of the Georgia legislature and the governor’s mansion for the first time since reconstruction. This brash group couldn’t wait to get to work in January and by early February the governor had signed a comprehensive tort-reform bill in a Hollywood-style ceremony held at a prominent hospital in a swanky north Atlanta suburb. The party of limited government had just vastly increased the power of Georgia government and thrown a huge dollop of money at its friends in the insurance lobby. It was one of those bills that passed so quickly and modified so many existing laws, some of which stretched back to the original Georgia constitution of 1798, that you couldn’t possibly understand what was in it until after it passed and the snakes started coming out from under the rocks.
So-called tort reform fits the classic profile of smarmy politics. Politicians love a scapegoat to blame their own shortcomings on. And, who better than the trial lawyers: we’re ambulance chasers, don’t you know, and if only doctors didn’t have to practice defensive medicine (whatever that is) there wouldn’t be a health care crisis. Medicare, Medicaid and Social Security have nothing to do with the high cost of medical care. Don’t even think that ham-fisted mandates and State regulatory schemes on health insurance–which cause insurance companies to issue indistinguishable expensive policies in order to pass muster with the insurance commissioner–have anything to do with high premiums and preexisting-condition coverage. I knew the day this abomination passed that I would never see a nickel’s reduction in my medical malpractice premiums and, sadly, I was right. The main disappointment I had was trying to explain the ramifications of Georgia’s tort reform to my physician friends, only to find them refusing to believe that the legislature did not act in their best interest. My colleagues couldn’t understand that the legislature only threw some bones to its pals in the insurance industry. Even after five years of increasing premiums, most of my doctor friends believe that the legislature just didn’t pass the right laws.
Somehow the party of strict constitutional construction always forgets the Seventh Amendment of the U.S. Constitution and its Georgia Constitution equivalent. That’s the part of the Bill of Rights that guarantees people a civil trial under the common law when disputes arise. Many people don’t realize that during the Colonial period, our forefathers haled each other into court constantly, maybe even more than we do today. It’s a little more civilized than killing one another over money, after all, and in the old days people didn’t gasp when they saw someone carrying a pistol. The Constitutional guarantee of a civil trial had a threshold of twenty dollars (Spanish silver dollars, not the paltry sum of $20 for dinner in a modest restaurant in today’s inflated fiat currency) so that the courts were not overwhelmed with trivial disputes. The civil trial law system worked reasonably well for a long time, until the legislature started using it for a playtoy.
Among many other things, the 2005 legislature capped pain-and-suffering damages in medical malpractice lawsuits at $350,000. Perhaps you might consider $350k a just sum for pain and suffering, unless it was your wife’s face that had been disfigured by a plastic surgeon. A local jury thought a poor woman’s face was worth $900,000 plus another $250,000 for her husband. Instead of reducing the award by $800k, however, the trial judge had the gumption to declare the cap unconstitutional. The appeal made it to Georgia’s Supreme Court, which in a unanimous decision issued on March 22, found that the caps could not be squared with our constitution. In particular, the Court found that damage caps were incompatible with the phrase, the “right to trial by jury shall remain inviolate,” because under the common law only a jury can decide the amount of damages.
So there it is: what you learned in your high school civics class was right after all. If you’ve been injured, you’re entitled to bring the person who injured you in front of a jury and let the jury determine how much, if any, money to award you. For the last five years, that was not the law in Georgia if you were injured by a doctor or hospital employee. Tough luck for those victims who had their constitutional rights violated the last five years, but at least this part of the law is back where it had been for the last two hundred years.