Tort reform legislation in Georgia has placed significant limitations on medical malpractice lawsuits in the state. However, a serious malpractice case may still produce a serious financial recovery. In order for that to happen, one must go to an experienced attorney with the knowledge and resources to properly evaluate and handle the case.  It is simply impossible to be taken seriously otherwise.

The term "malpractice" refers to claims for damages based upon a professional's failure to exercise the appropriate standard of professional care.

It is important to remember that most medical professionals are highly competent and conscientious, and most things laymen think are malpractice aren't. A bad result does not equal malpractice. However, no one is perfect, and some studies indicate that medical errors are a major cause of disability and death in the U.S. With "managed care" restricting doctors' decisions and forcing fewer doctors and nurses to care for more patients in a day, serious mistakes are inevitable.

Georgia has a strict two year statute of limitation on medical malpractice cases. While there are limited circumstances to extend the time period, it is extremely dangerous to count on any extension.

In order to pursue a claim for medical malpractice, it is important to get to an experienced attorney at least six months to a year before expiration of the two-year statute of limitation, in order to allow adequate time for case evaluation, finding appropriate expert witnesses, and preparation of the case before filing suit.

The standard of care for physicians is that they must exercise such reasonable care and skill for their patients as, under similar conditions and like surrounding circumstances, is ordinarily employed by the medical profession generally. Hospitals owe their patients the duty of using ordinary care to furnish equipment and facilities reasonably suited to the uses intended and such as are in general use under the same, or similar circumstances in hospitals of approximately the same size serving similar areas or communities.

The question of whether the standard of care has been violated is almost always an exhaustive and expensive battle of experts. The out of pocket expense to take a medical malpractice case to trial often approaches $100,000. Lawyers who handle malpractice cases on a contingent fee contract while advancing the considerable expense must be careful in screening the economic viability of cases.

Tort reform legislation passed in the 2005 session of the Georgia General Assembly significantly restricts the rights of victims of medical malpractice, and makes it economically impractical to pursue a great many legitimate malpractice claims.  With recovery restricted and the high cost of preparing a case for trial, it is often impossible to find an attorney who is willing to take on the economic risk of handling a malpractice claim that does not involve a pretty unambiguous violation of a standard of care accompanied by catastrophic permanent injury.

Cap on noneconomic damages. For cases arising after February 21, 2005, there is a $350,000 cap on noneconomic damages that may be awarded against any health care provider, with a maximum of $1,050,000 in cases against three or more health care providers. "Noneconomic damages" include damages for physical and emotional pain, discomfort, anxiety, hardship, distress, suffering, inconvenience, physical impairment, mental anguish, disfigurement, loss of enjoyment of life, loss of society and companionship, loss of consortium, injury to reputation, and all other nonpecuniary losses of any kind or nature. This term does not include past or future Medical expenses, including rehabilitation and therapy; wages or earnings capacity; income; funeral and burial expenses; value of services performed by the injured in the absence of the injury or death including those domestic and other necessary services performed without compensation; or other monetary expenses. 

The impact of this rule is to necessitate more detailed proof of all possible economic damages, and to make it economically impractical to pursue even the egregious malpractice cases on behalf of most retirees and homemakers.

A Superior Court judge in Fulton County ruled that the cap on non-economic damages is unconstitutional.  The defense appealed to the Georgia Supreme Court, but before the case was heard settled the case. There are serious arguments on both sides of that constitutional issue. The fact that a law is dumb or unfair does not necessarily make it unconstitutional, so the court could rule either way.

Hospital emergency department cases. In cases arising in hospital emergency departments after February 21, 2005, the plaintiff must prove gross negligence by clear and convincing evidence. It is almost impossible to meet that burden in any but the most extreme cases.  In effect, this creates virtual civil immunity for health care providers in the hospital emergency department context.

Affidavit requirement. In Georgia, malpractice cases ordinarily expert testimony from a member of the same profession as to the standard of care and how it was violated. Effective February 21, 2005, in both new and pending medical malpractice cases, the expert must have be regularly engaged in practice or teaching three of the past five years in the same area of practice or specialty, with sufficient frequency to establish an appropriate level of knowledge, as determined by the judge, in performing the same procedure, diagnosing the condition or rendering the treatment which is alleged to have been performed or rendered negligently by the defendant. There is no longer a grace period for filing the expert affidavit after the suit is filed. If there is no malpractice affidavit, the suit will be dismissed.

The malpractice affidavit requirement applies to malpractice claims against architects, attorneys, certified public accountants, chiropractors, clinical social workers, dentists, dieticians, land surveyors, medical doctors, marriage and family therapists, nurses, occupational therapists, optometrists, osteopathic physicians, pharmacists, physical therapists, physicians' assistants, professional counselors, professional engineers, podiatrists, psychologists, radiological technicians, respiratory therapists, and veterinarians.

Expert testimony rules. Effective February 21, 2005, Georgia has adopted the Federal rule on admissibility of expert testimony, with specific reference to a body of Federal case law that gives judges broad discretion to screen expert testimony and summarily throw out of court cases in which they disapprove of the plaintiffs experts. That will be carried forward in the new Georgia Rules of Evidence which is now pending in the legislature.  The courts have held that the changes in evidence rules are procedural and can be applied retroactively to cases that arose before the effective date of the law.

In addition, the legislature stated its intent "that the courts of the State of Georgia not be viewed as open to expert evidence that would not be admissible in other states." This statement of legislative intent may have the effect of granting "most favored nation status" to malpractice-prone professionals, defect-prone manufacturers and negligent corporations, as Georgia competes with other states to attract them to Georgia.

In addition, the same legislation adopted the following rule about who can testify as an expert on the standard of care in a medical malpractice case.

(c) Notwithstanding the provisions of subsection (b) of this Code section and any other provision of law which might be construed to the contrary, in professional malpractice actions, the opinions of an expert, who is otherwise qualified as to the acceptable standard of conduct of the professional whose conduct is at issue, shall be admissible only if, at the time the act or omission is alleged to have occurred, such expert: