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Tuesday, March 30, 2010
Joe Kirby: Those pushing med-mal tort reform as key to undoing ObamaCare are praying to wrong 'God'
by Joe Kirby
03.28.10 - 12:00 am
Conservatives around the country hoping to overturn ObamaCare after its passage last week are praying for a political "miracle cure." And this foe of ObamaCare hopes they find it.

But here's a warning: Tort reformers (or tort "deformers" as some have taken to calling them) are praying to the wrong "god." That is, they have made a big mistake, and seem poised to continue making it - that of putting the supposed need for medical malpractice reform at the center of any reform agenda. But it's not an issue that resonates with much of the public. And even more telling, the Georgia Supreme Court gave tort reform efforts the back of its hand last week, ruling that any cap on a jury's award of damages violates the Georgia Constitution.
The Republican-controlled state Legislature in 2005 put an arbitrary $350,000 limit on jury awards for pain and suffering (not to be confused with awards for economic damage). So no matter how catastrophic the injuries inflicted by a doctor or other health care provider's maltreatment - whether they cost you a hand, an arm, a leg, your ability to have sex, or, in the case of a Fulton County infant who was mangled by his doctor during his circumcision, cost you a third of your penis as a result - you could be awarded no more than
$350,000 to "compensate" you for having to spend the rest of your life in a less-than-whole state. That was also the most that could effectively be awarded to those with no earning power directly at stake, such as an infant or child, a retiree or a stay-at-home spouse.

(Recall how many times we've heard those on the right decry the need for more stay-at-home moms. Yet tort reformers are solidly behind caps on jury awards that essentially mean those mothers' work has almost no economic value. How hypocritical.)

That brings us to the plaintiff in last week's case, Betty Nestlehutt, 75, a Realtor who now lives in Marietta. Her doctor negligently shut off almost all of the flow of blood to the skin of her face during minor plastic surgery. Gaping holes began opening across her face within weeks as a result as the skin died and fell off, leaving her with deeply disfiguring scars.

But tort reformers turned a blind eye to such cases. "Tort Reform" was needed to keep down medical insurance premiums and prevent doctors from "fleeing the profession" for fear of being sued by award-hungry plaintiffs, they argued.

Yet Mrs. Nestlehutt's attorneys stated that the state's doctors have seen no more than a 7 percent reduction in their premiums since the law took effect in 2005 - and that MAG Mutual, which insures virtually all Georgia doctors, had reported a quadrupling of its net income. Meanwhile, the number of doctors in Georgia keeps growing - and probably not because we had such caps in place, but because of the same reasons that the ranks of most other professions in the metro area continue to grow.

The jury in Mrs. Nestlehutt's case awarded her $900,000 for pain and suffering. The state court trial judge ruled that the cap violated the Georgia Constitution and entered a judgment for the full amount of the jury's verdict. The state court trial judge recognized that the cap was unconstitutional. The defendants appealed, arguing through their lawyers, that the cap was constitutional. To its immense credit, the Georgia Supreme Court unanimously agreed with the trial court judge and ruled that the cap was unconstitutional.

Wrote Chief Justice Carol W. Hunstein for the unanimous court, "The very existence of the caps, in any amount, is violative of the right to the trial by jury."

Put another way, the jury caps were a form of jury tampering by the Legislature that effectively resulted in the courts ignoring the evidence presented in a trial.

The court also noted that medical negligence claims were accepted as part of English common law all the way back to 1374 and as part of American law as far back as at least 1794, and were thus encompassed in the right to a jury trial under the Georgia Constitution.

(In an interesting aside, that 1374 case involved the treatment of a wounded hand by a surgeon named J. Mort - the Middle English word for "death." Not the most appealing name for a doctor. )

Also striking in the Court's ruling was all of its seven members (including Justice Harris Hines of Marietta) sided against the caps, including the two appointees (Justices Harold Melton and David Nahmias) of Gov. Sonny Perdue, a big supporter of med-mal tort reform and the caps.

So where do we go from here? Some tort reformers in the Legislature are already trying to figure out how to resurrect the caps. They should stop wasting their time and stop acting as the errand boys for Big Insurance and the doctors' lobby.

It's a big of an oversimplification, but such caps help Big Business and hurt The Little Guy. It's tone-deaf politics and lousy public policy, and it gives tort reformers the appearance of condoning sloppy doctoring.

Is that really what they believe in?

Sadly, I suspect that ObamaCare is here for the long haul. But if tort reformers ever hope to come up with a winning argument for overturning it, they'd do better to forget all about "tort reform" and jury award caps.

Joe Kirby is Editorial Page Editor of the Marietta Daily Journal and co-author of the new "Then & Now: Marietta Revisited."
© 2010


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