It’s been a busy couple of weeks for tort reformers and their opponents.
As we reported in an earlier posting, the Georgia Supreme Court this week struck down the $350,000.00 cap on pain and suffering damages in med mal cases as an unconstitutional with Georgians’ right to trial by jury. The decision was a decisive victory for med mal victims and for opponents of tort reform.
The previous week, however, the Georgia Supreme Court upheld two other components of the contraversial 2005 tort reform legislation: (1) the “gross negligence” standard applicable to ER malpractice cases; and (2) the “offer of judgment” rule.
The “gross negligence” standard was challenged by Carol Gliemmo, who became paralyzed when a Columbus ER doctor failed to diagnose her with a brain hemorrhage. She argued that the gross negligence standard–which required her to prove that the ER doc knowingly mistreated her–created an unreasonable and insurmountable hurdle. The Georgia Supreme Court disagreed. Justice George Carley, who wrote the majority opinion, stated that it was “entirely logical” for lawmakers to approve the legislation to stem the rising cost of medical malpractice lawsuits.
The “offer of judgment” rule was challenged by Salon and Cheryl Baptiste. The Baptiste’s filed a defamation lawsuit against former Falcon Chuck Smith. Mr. Smith made a $5,000.00 “offer of judgment” to the Baptiste’s, which they rejected. The court ultimately dismissed the Baptiste’s lawsuit. Mr. Smith moved to collect his attorneys’ fees under O.C.G.A. § 9-11-68, the offer of judgment statute. That statute permits either party to extend to the other an offer of judgment (as Mr. Smith had done) which, if rejected, could lead to the rejecting party paying the offering party’s attorneys’ fees. The trial court, however, denied Mr. Smith’s motion on the grounds that O.C.G.A. § 9-11-68 unconstitutionally interferes with litigants’ right of access to Georgia courts. The Supreme Court rejected that argument in upholding the offer of judgment statute.
