Changes in Georgia Law Limit Options for Medical Malpractice and Other Victims

In February of 2005 the Georgia legislature passed a set of laws making dramatic changes to Georgia’s civil justice system.

One change put a $350,000 cap on non-economic damages in medical malpractice claims. This means the maximum a person can obtain from a single negligent physician for pain and suffering associated with injuries caused by medical malpractice is $350,000, regardless of the severity of the injury or how bad the negligence. Non-economic damages were not capped.

In practical terms this means women who do not work outside the home, children, retired persons or disabled persons who are the victims of medical malpractice will find it virtually impossible to locate an attorney to represent them. The average malpractice case requires between $75,000 and $150,000 to bring to trial. These figures can increase if the case is more complicated. Since the maximum amount that could be recovered for this group of victims would be $350,000, most attorneys who practice in this area will not be able to afford to take their cases any longer.

When these laws were being debated in the legislature, the insurance industry pitted doctors against lawyers by suggesting to the public and doctors that putting a cap on damages would enable insurance companies to reduce doctors’ medical malpractice premiums. Ironically, most states that have damage caps have seen doctors’ malpractice premiums rise faster than states without the caps.

Georgia modeled its law on Texas, which passed insurance reform at the same time it approved caps on damages. Georgia did not pass any insurance reform as part of its new law. As part of insurance reform, Texas now requires insurance companies providing malpractice coverage in the state to file detailed accounting records whenever they request rate increases. The most recent records accompanying the insurance industry’s attempts to have doctors’ malpractice rates increased revealed that malpractice jury verdicts account for less than 1% of the total costs insurance companies incur when they insure doctors. It seems that only the insurance industry has gained from having caps on malpractice awards while the citizens of Georgia will be made to suffer.

Another more harmful change to the laws which applies to all cases and not just malpractice cases is the new offer of judgment provision. This is a drastic change and comes close to creating a "loser pays" system that will close the courthouse doors to all but the wealthy in certain cases.

The new offer of judgment provision will allow a party to make an offer in writing during the course of litigation. If that offer is not exceeded by the judgment by more than 25% according to the law, the other party will be responsible for all attorneys’ fees and costs incurred by the party who made the offer after the date the offer was made.

This means than an insurance company can make a "lowball" offer, and unless the jury verdict is exceeded by more than 25%, you will be responsible for all the other side’s attorneys’ fees and costs.

In some cases a person could win the case in front of a jury but end up with no recovery if they had to pay the other side’s attorneys’ fees and costs. Only the very wealthy can afford to take this risk in cases in which liability or causation was in question.

I urge you to do what you can at the next election to see that these laws are overturned and we return to a civil justice system in Georgia that provides a chance for all citizens to obtain justice.