Though common in litigation, confidential settlements can be controversial.

While confidentiality agreements had help expedite settlement, there are concerns that secret settlements can work against public safety by covering up health and safety hazards. As with much in life, the hardest choices are not between good and bad, but between good and good, and between bad and bad.

Under a confidential settlement agreement or order, some or all terms of a settlement are kept secret. Defense lawyers routinely include a confidentiality clause in a proposed release when there is a large settlement. Sometimes it is a throwaway item in a boilerplate document. In other cases they hang tough on confidentiality.

For defendants and their insurers, there are several obvious reasons to seek confidentiality of settlements. Especially in cases in which multiple future claims are likely, such as allegedly defective manufactured products or allegedly widespread conduct, they may seek confidentiality of settlements so as not to encourage additional claims or impair business reputation.

Public safety advocates criticize secret settlements that hinder the ability to identify threats to public health and safety and hold wrongdoers accountable. As Justice Brandeis noted, “[s]unlight is the best of disinfectants.” Where a case involves the potential for widespread public hazards due to product defects or systemic misconduct, there is good reason for plaintiffs to resist secrecy. In the discovery context, there are many factors to consider that are beyond the scope of this discussion of settlements.

Regarding settlement, plaintiffs’ lawyers should: (1) discuss secrecy concerns for public interest in advance with clients; (2) remember that a settlement agreement filed with the court is itself a public record; (3) insist that the settlement comply with states laws, court rules and ethics rules; (4) insist on plaintiff’s ability to disclose settlement to government agencies, accountants, bankers, and financial advisors. See Leslie A. Bailey & Amy Radon, “Confronting Court Secrecy Issues from Discovery through Settlement: Measures to Protect Both Your Client and the Public Interest.”

Defendants may also desire confidentiality of settlements when plaintiffs’ lawyers have figured out a legal strategy that, if widely known in the legal community, could disrupt a multi-billion dollar business model. We have been involved in that repeatedly over the past thirty years but can’t talk about it.

Public safety concerns about confidentiality tend to be less when the cases arises from a single highway collision that, if reported in the media, could impact a defendants’ business but would not leave members of the public exposed to greater danger.
Plaintiffs often just go along with a confidentiality clause in settlement just to get their money sooner. However, it is not always just a matter of convenience. Plaintiffs recovering large amounts of money may desire confidentiality as much as the defense.
If a large settlement is publicized, it can affect relationships with friends, relatives and neighbors who might resent what they see as a financial windfall. Relatives and friends may suddenly come out of the woodworks as soon as they smell money. Investment advisors and charities may besiege the plaintiffs who have come into big money. It is common to agree to confidentiality of a settlement where client quietly lived in a small town and did not want their sudden wealth to distort relationships with friends and neighbors.

We once had a simple, uneducated, unsophisticated client from a rural county who had enough folk wisdom to recognize his vulnerability to such entreaties. In addition to confidentiality of the settlement, he opened a bank account two counties away from home, with a bank that did not have a branch in his home county. Both his initial cash disbursement and monthly settlement annuity payments were automatically deposited in that account. Disconnected from the community where he and all his relatives lived, there was virtually no risk of anyone he knew learning about his vastly improved financial status. He remained in the 150-year-old log cabin that been his family’s home since pioneer days, though considerably upgrading it inside. He worked a while longer to qualify for a state pension, then with a nephew started a “you pick ‘em” berry farm on the family land. With his confidentiality protected, he was able to live unobtrusively and undisturbed by greedy people for the remaining 25 years of his life.

Another client whose son died due to an obscure brake design defect was an immigrant from a Third World country that was emerging from a brutal civil war when we settled his case. As he came from a politically prominent family in his home country, he had an opportunity to take a cabinet position in the new government of his nation. The brutality of the losing side of the civil war was legendary so there were serious concerns for personal safety if anyone back home knew that he was a millionaire. The defendant auto manufacturer also wanted confidentiality of our settlement for all the usual reasons. After determining that ours was the only known incident in the country arising from that brake defect, and that the defect was corrected in all subsequent model years, we determined that the risk to public safety was remote. Thus, we and the manufacturer’s attorneys made a joint motion for a confidentiality order and to seal the court file. The client then returned to his home country to explore his options for public service. However, he determined that due to endemic corruption he preferred to return to Georgia and buy a business.
The terms of a confidentiality clause are negotiable. For example, in one recent case that was settled for $8,000,000, in which both sides wanted confidentiality for different reasons, we included the following language:

In consideration of $100 of the total amount set forth in Paragraph 2.0 of this Agreement, the undersigned agree and acknowledge that the terms and provisions of this Agreement, with respect to the actual amount paid, shall be kept in strict confidence, from inception of the agreement, moving forward. The undersigned further acknowledge and agree that the settlement amount may be revealed only with the written permission of Defendants and Insurer. The only exceptions to this promise of confidentiality are that a party may, without securing the prior written permission of the opposing parties, provide information about this Agreement and the settlement it memorializes as follows:
a. to the Internal Revenue Service or the Georgia Department of Revenue upon request; b. to the court in any proceeding to approve or enforce the terms of this Settlement Agreement so long as the Settlement Agreement is filed under seal;
c. to a health insurance company, health care professional, or others asserting a claim for subrogation or reimbursement for medical expenses paid;
d. as required by any governmental agency or by process of law, so long as the party(s) provides opposing parties with written notice via certified or statutory overnight mail of such governmental agency requirement or process of law and grants the opposing parties an opportunity to contest such governmental agency requirement or process of law in advance of any disclosure by the party(s) and, further, so long as any entity receiving that information is informed of this confidentiality agreement prior to the disclosure of information protected by it; and
e. to a party(s)’s attorneys, professional accountants, and financial advisors, spouse or professional tax consultants with whom that party(s) have a confidential relationship.
f. Counsel for Plaintiff may report the fact and amount of this settlement to any verdict database and in firm marketing materials, though without revealing the names of the parties, defense counsel, Insurer, county of venue, or the date or location of the subject incident.
If the undersigned is asked about any claim described in the recitals or released in Section I of this agreement, the undersigned may respond that “The case has been resolved” or words to that effect.

Blatant violations of confidentiality agreements and orders are relatively rare, in part because the consequences of violation are a deterrent. Remedies available for breaching a confidentiality clause are generally the same as those awarded for other contractual breaches. Nominal or compensatory damages may be awarded in appropriate cases.

Because proof of damages for breach of confidentiality is difficult, such contracts often include a provision for liquidated damages in amount sufficient to deter violations. Most courts have refused to award punitive damages.

Lawyers drafting confidentiality agreements may specify remedies including monetary liquidated damages, injunctive relief, costs, or attorneys’ fees. Liquidated damages amounts should not be so high as to be deemed punitive and thus potentially void.

If it is a confidentiality clause of a contract, that is governed by the same legal rules that govern other types of contracts. That is why settlement agreement often include a consent confidentiality order. But if the confidential settlement becomes an order of the court, the order itself ordinarily becomes a public record. One method to assist in keeping the terms confidential is to have the official record sealed. We have agreed to that where the plaintiff had strong reasons to desire confidentiality. In such cases, the court should independently weigh the need for privacy against the public’s interest in having access to public records.

When parties to subsequent cases seek discovery of prior settlements, confidentiality of settlements is challenged. Some courts allow discovery of confidential settlement agreements only where there is a particularized showing of a likelihood that admissible evidence be generated by the discovery of the terms of the settlement agreement. Other courts have allowed discovery of confidential settlement agreements, provided the party seeking discovery demonstrates that the information is relevant.

Ken Shigley is a 2019 recipient of the “Tradition of Excellence” Award from the State Bar of Georgia General Practice & Trial Section.

Mr. Shigley is the first Georgia lawyer to earn three national board certifications in his practice area from the National Board of Trial Advocacy – in Civil Trial Law, Civil Practice Law and Truck Accident Law. He is a board member of the Academy of Truck Accident Attorneys, and former chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, which includes the Trucking Litigation Group. 

He is lead author of Georgia Law of Torts: Trial Preparation and Practice, now in its tenth annual edition with Thomson Reuters West. His law practice is focused on catastrophic injury and wrongful death including those arising from commercial trucking accidents and those involving brain, neck, back, spinal cord, amputation and burn injuries. 

In 2011-12, Mr. Shigley was president of the State  Bar of Georgia, which includes all the lawyers and judges in Georgia.  He also is a former chair of the Institute for Legal Education in Georgia (board member 2008-2019, chair 2012-13),  State Bar of Georgia Tort & Insurance Practice Section (1994-95), and the Georgia Insurance Law Institute (1994). 

A former prosecutor and former insurance defense lawyer, Mr. Shigley is a graduate of Furman University and Emory University Law School. He is a widower,  father of two adult children, and an elder in his church.

There are many reasons for that, some good and some not. Even if you have a regular physician treating a chronic illness, getting an appointment can take a long time. If you call after hours or on weekends you may be told to go to the ER for anything that requires immediate attention.

The Georgia legislature in 2005 passed a poorly drafted omnibus bill designed to make it more difficult for injured people to recover their damages from parties at fault.  The Georgia Supreme Court eventually held the arbitrary cap on non-economic damages in medical malpracticecases was unconstitutional. Other provisions were either limited in their application or turned out to have unintended results that occasionally help well-represented injury victims.

But one section has virtually closed the courthouse to victims of serious personal injury  or wrongful death due to malpractice in hospital emergency departments. 

O.C.G.A. § 51-1-29.5  provides, in part:

(c) In an action involving a health care liability claim arising out of the provision of emergency medical care in a hospital emergency department or obstetrical unit or in a surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department, no physician or health care provider shall be held liable unless it is proven by clear and convincing evidence that the physician or health care provider’s actions showed gross negligence.

(d) In an action involving a health liability claim arising out of the provision of emergency medical care in a hospital emergency department or obstetrical unit or in a surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department, the court shall instruct the jury to consider, together with all other relevant matters:

(1) Whether the person providing care did or did not have the patient’s medical history or was able or unable to obtain a full medical history, including the knowledge of preexisting medical conditions, allergies, and medications;

(2) The presence or lack of a preexisting physician-patient relationship or health care provider-patient relationship;

(3) The circumstances constituting the emergency; and  

(4) The circumstances surrounding the delivery of the emergency medical care.

Focusing on paragraph (c), most lawyers concluded that the standard of “clear and convincing evidence” of “gross negligence” is virtually a guarantee of immunity from liability for a health care provider or hospital in an emergency medicine context. In talking with potential clients who call about potential ER malpractice claims, I have often told them that this law virtually means that unless a doctor was obviously drunk and expressed a willful disregard for causing harm to the patient, the case was virtually unwinnable. It has become virtually impossible to find an experienced lawyer to take an emergency room malpractice case.

But paragraph (d) is also part of the statute. Now, finally, there is an appellate decision that focuses on the jury question of whether or not a particular treatment fit the definition of emergency care.

This month, in Howland v. Wadsworth, — S.E.2d —-, 2013 WL 5543486 (Ga.App., decided October 9, 2013),   the Court of Appeals  affirmed a $5,000,000 Gwinnett County judgment for a double amputee, holding that  whether the patient at some point had stabilized and was capable of receiving medical treatment as a nonemergency patient within the meaning of OCGA § 51–1–29.5(a)(5) was a question for the jury.  The jury could find, as it did, that the facts did not fit the definition of “emergency” so it could find for the plaintiff under the standard of preponderance of evidence of ordinary negligence rather than “clear and convincing evidence of gross negligence.”

In this case, the patient began experiencing pain in her feet and after several days noticed that her feet were cold and that she was unable to warm them, her pain worsened to the point she could no longer walk. She then called 911. An ambulance took her to the local hospital’s emergency room.  In the ambulance en route to the hospital, a paramedic assessed her condition, noted that she had normal vital signs and normal blood circulation in her legs, and obtained a brief medical history of diabetes and hypertension.  Upon her arrival at the ER, she was classified as a “level 4” patient, meaning that her condition was “non-urgent.” She was assigned a bed in “C-pod,” which is an area designated for the examination and treatment of patients who are expected to be “in and out in 90 minutes or less.” The triage nurse  noted complaints of significant pain in both feet that had increased over the past couple of days and that it was hard for her to walk. The nurse noted that her feet were cold to the touch, but that she had “positive” or “palpable” pulses in her feet at the time. 

Eventually, she was seen by a physician assistant who worked in the ER. He noted that Wadsworth was  “moderate” pain, ordered morphine, and did a differential diagnosis and ordered a venous ultrasound exam which ruled out deep vein thrombosis.  He did not order tests to check for partial arterial blockage. He diagnosed cellulitis, which can be treated with antibiotics on a nonemergency basis. Though the patient wanted to be admitted to the hospital for observation, she was given a prescription for antibiotics and pain medication and discharged after three hours in the ER.

About 12 hours later, an ambulance responded to an emergency call to her home in the middle of the night. Upon arrival, the paramedics found her unresponsive, with no blood pressure or pulse. After a paramedic performed CPR, vital signs improved, and she was again transported by ambulance to the same ER. Upon her arrival, Wadsworth had low blood pressure, a diminished pulse, and slow respiration, which are indicators of a near cardiac arrest. Later that afternoon, doctors performed an arteriogram  and determined that the arteries behind both of her knees were completely blocked.

Doctors later determined that the patient’s lower legs had suffered damage to the extent that they were no longer salvageable, and Wadsworth had both legs amputated below the knees.

Testimony of the physician’s assistant and physician that the patient was stabilized and properly could be discharged was evidence upon which the jury could determine that she was not in an “emergency” situation at that point, so that the ordinary negligence rather than “gross negligence” standard should apply.

All medical malpractice cases are still extraordinarily challenging. Emergency room malpractice cases are still even more challenging than others. But with this decision from the Court of Appeals, it may be a little easier to get lawyers to consider taking cases arising out of emergency department negligence in diagnosis and discharge.

Ken Shigley is an Atlanta trial attorney who is a past president of the State Bar of Georgia and a board certified civil trial and pre-trial advocate of the National Board of Legal Specialty Certification .  His practice focuses on serious personal injury, wrongful death and commercial trucking litigation.

Afterward she developed the flesh-eating disease necrotizing fasciitis, resulting in amputation of a leg, other foot and both hands. The tragedy of this incident and its aftermath is almost unimaginable.

The first question that arises is whether the original medical treatment of the cut leg measured up to the standards of care. I’m not a doctor, and I am quite sure if there were litigation regarding the ER treatment there would be a platoon of medical experts deployed to say nothing was done wrong. However, I did run across an article by Greer E. Noonburg, MD,  “Management of Extremity Trauma and Related Infections Occurring in the Aquatic Environment, ” published in the Journal of the American Academy of Orthopedic  Surgery, July/August 2005 vol. 13 no. 4 243-253. 

Wounds sustained in oceans, lakes, and streams are exposed to a milieu of bacteria rarely encountered in typical land-based injuries.. . . Failure to recognize and treat these less common pathogens in a timely manner may result in significant morbidity or death. . . . Freshwater wounds should be managed with ciprofloxacin, levofloxacin, or a third- or fourth-generation cephalosporin (eg, ceftazidime). . . . Appropriate management of aquatic wounds requires recognition of the mechanism of injury, neutralization of venom, antibiotic administration, radiographic assessment, surgical débridement with irrigation, wound cultures, and structural repair or amputation as indicated by the severity of the injury. [abstract]

If there were not appropriate debridement of a deep wound sustained in a river and administration of antibiotics, that would raise questions about compliance with the standard of care.

The second question arises from the Georgia tort reform law that was passed in 2005. OCGA 51-1-29.5 provides:

(c) In an action involving a health care liability claim arising out of the provision of  emergency medical care in a hospital emergency department or obstetrical unit or in a surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department, no physician or health care provider shall be held liable unless it is proven by clear and convincing evidence that the physician or health care provider’s actions showed gross negligence.

(d) In an action involving a health liability claim arising out of the provision of emergency medical care in a hospital emergency department or obstetrical unit or in a surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department, the court shall instruct the jury to consider, together with all other relevant matters:

(1) Whether the person providing care did or did not have the patient’s medical history or was able or unable to obtain a full medical history, including the knowledge of preexisting medical conditions, allergies, and medications;

(2) The presence or lack of a preexisting physician-patient relationship or health care provider-patient relationship;

(3) The circumstances constituting the emergency; and

(4) The circumstances surrounding the delivery of the emergency medical care.

This statute is widely viewed as providing virtual immunity from civil accountability for ER physicians and hospital departments. The statute establishes a nearly insurmountable barrier but not absolute immunity.  We cannot assume, based on news stories, that debridement and antibiotics were not administered. And I will not now speculate whether, if were not done, a failure to surgically debride a wound and administer antibiotics when a patients is taken to an ER after sustaining an open gash in a river would be enough to show “clear and convincing evidence” of “gross negligence.”

But I felt at the time that there could have been consensus legislation, on which both sides could have signed off, if the right things could have been done a year or two earlier.  Friends on the other side of the divide expressed the same sentiment. Unfortunately, we had a political train wreck in which the bill that passed was loaded with some provisions that were contradictory or unconstitutional.

One of the provisions is to cap “noneconomic damages” (pain, suffering, loss of quality of life, etc.) at $350,000 in medical malpractice cases. The economic reality is that people who suffer catastrophic noneconomic damages, but without large economic loss, generally cannot hire a lawyer capable of competently handling their case. This is because it takes $50,000 to $100,000 of out of pocket expense, mostly for expert testimony and dealing with the other side’s experts, to properly prepare a medical malpractice case for trial. Because few victims of malpractice can fund that kind of expense, lawyers typically have to front the expense. It is not a sane business decision to risk $100,000 of one’s own money on a case where the maximum recovery is $350,000, as for the death of a homemaker or retiree due to malpractice.  A 40% contingent fee in a $350,000 recovery would be $140,000. The statistical probability of success at trial in even the most meritorious medical malpractice case is maybe 20%.  Even if a lawyer were willing to take that risk, and were successful, the net benefit to the hypothetical client would be only $110,000 out of $350,000, hardly an attractive proposition for lawyer or client.

Thus, the $350,000 cap on noneconomic damages effectively denies access to justice in cases where a person’s life is destroyed or devastated, but the provable economic loss is relatively small.  If the legislature intended to deny justice to victims of catastrophic injury due to medical malpractice who are of modest means, there could have been more straightforward ways to do it. 

Yesterday the Georgia Supreme Court heard oral arguments in the case of Nestlehutt v. Alanta Oculoplastic Surgery, PC,  in which a trial court judge had held the cap unconstitutional.  Mrs. Nestlehutt was a real estate agent who found she was losing business to younger competitors, so she consulted a plastic surgeon about removing bags under her eyes and age lines around her mouth. The surgeon recommended simultaneous CO2 resurfacing and a full facelift. This was particularly risky in a patient of her age and complexion. To make a long story short, her face essentially fell off, leaving her with horrible permanent disfigurement such that she could hardly leave the house. The jury awarded $900,000 for the devastation of her quality of life.

Fulton State Court Judge Diane Bessen held that the $350,000 cap is unconstitutional because it violates right to trial by jury, equal protection of laws, and separation of powers.

At the Supreme Court, attorney Michael Terry argued for Mrs. Nestlehutt that the most egregious aspect of the cap is that it hurts the people who are injured the most. “No frivolous cases are affected by the cap,” said Terry. “This makes no sense. It is not rational.”

Defense attorney argued that, “The Legislature found there was a crisis” that justified the caps, Peters added, referring to lawmakers’ findings that limits on medical malpractice awards were needed to help health care providers secure affordable malpractice insurance coverage.”

Questions from the members of the Supreme Court gave little clue how they may be leaning, according to Alyson Palmer of the Fulton County Daily Report.

Perhaps the best outcome would be if the court unanimously held the damages cap  unconstitutional, and sent everyone back to the drawing board to come up with a different form of medical liability compensation system involving a genuine tradeoff between the legitimate concerns of doctors and patients.

Ken Shigley is a Certified Civil Trial Advocate of the National Board of Trial Advocacy in Atlanta, Georgia, whose law practice focuses on representing people who are catastrophically injured, and families of those killed, when companies violate rules designed for protection of public safety. Mr. Shigley has extensive experience representing parties in trucking and bus accidents, products liability, catastrophic personal injury, wrongful death, brain injury, spinal cord injury and burn injury cases. He has been listed as a “Super Lawyer” (Atlanta Magazine), among the “Legal Elite” (Georgia Trend Magazine), and in the Bar Register of Preeminent Lawyers (Martindale).  He is a  Currently he is a national board member of the American Association for Justice Interstate Trucking Litigation Group and Treasurer of the 41,000 member State Bar of Georgia.

 For criteria useful in selecting an attorney, see The Smart Consumer’s Guide to Hiring a Great Lawyer.

With that background, you might guess that he has been a bold federal judge in south Georgia.  Now a Senior Judge well along in years, he remains as active and outspoken as ever.

Last month, Judge Alaimo entered an order holding unconstitutional the Georgia medical malpractice statute of repose, as applied to mentally handicapped plaintiffs.  The case involved alleged dental malpractice that led to a brain infection and severe mental disability. Deen v. Egleston, 2009 WL 368647 (S.D.Ga., 2009).  Here are the nuggets in the case:

• Under Georgia law, the applicable medical malpractice statute of limitations is two years after the date on which the injury occurred. Ga.Code Ann. § 9-3-71(a).
• Under Georgia’s general statute of limitations rules, “[m]inors and persons who are legally incompetent because of mental retardation or mental illness, who are such when the cause of action accrues, shall be entitled to the same time after their disability is removed to bring an action as is prescribed for other persons.” Ga.Code Ann. § 9-3-90(a).
• O.C.G.A. §  9-3-91 provides: “If any person suffers a disability specified in Code Section 9-3-90 after his right of action has accrued and the disability is not voluntarily caused or undertaken by the person claiming the benefit thereof, the limitation applicable to his cause of action shall cease to operate during the continuance of the disability.”
• Georgia has three savings statutes prevent the statute of limitations from running against a person who is incapacitated because of their mental disability. See Lowe v. Pue, 150 Ga.App. 234, 234-35, 257 S.E.2d 209 (1979). Egleston notes that the state legislature has decreed that these general tolling provisions do not apply in cases of medical malpractice. Ga.Code Ann. §§ 9-3-71(a) & 9-3-73(b). An action arising out of the provision of dental services or diagnosis is a medical malpractice action. Ga.Code Ann. § 9-3-70.
• O.C.G.A. §  9-3-73(b) provides, in pertinent part, that: “Notwithstanding [sections 9-3-90 & 9-3-91], all persons who are legally incompetent because of mental retardation or mental illness and all minors who have attained the age of five years shall be subject to the periods of limitation for actions for medical malpractice provided in this article [sections 9-3-70 through 9-3-74].”
• Georgia Code section 9-3-73(b) is unconstitutional, in that it treats mentally incompetent individuals differently when they have medical malpractice claims, as opposed to other causes of action.       
• The legislature may not, consistent with equal protection principles, deny only this class of medical malpractice plaintiffs the projection afforded all other persons by the saving statute…. In doing so, [the statute] does not substantially further the legislative object of containing the costs of the medical injury reparations system because the number of malpractice claims brought by or on behalf of minors or mental incompetents is comparatively small…. At the same time, the statute operates to extinguish a cause of action of which the plaintiff, due to his disability, nay not have learned until after the limitations period has expired.
• The purpose of tolling provisions for legal disability … is to protect the rights of those who are not competent to do so themselves. These provisions recognize that the enforcement of an incompetent person’s rights should not be `left to the whim or mercy of some self-constituted next friend.’ “
• Courts should undertake a robust, searching form of rational basis review where the challenged law discriminates against the mentally incapacitated.
• To withstand rational basis review, legislation that discriminates against the mentally incapacitated must be rationally related to a legitimate government purpose.
• Ensuring access to affordable healthcare is a legitimate legislative objective, but that aim is not reasonably furthered by discriminating against incapacitated adults’ medical malpractice claims.
• “A statute may be constitutionally valid when enacted but may become constitutionally invalid because of changes in the conditions to which the statute applies. A past crisis does not forever render a law valid.”
• Experience and experimentation in the states has shown that medical malpractice lawsuits are not a major driver of skyrocketing healthcare costs. The Court doubts whether medical malpractice lawsuits were ever a real part of the healthcare problem, with respect to rising costs, in this country. The impetus behind the special legislation for medical malpractice cases appears to have been based on either misunderstanding of the problem of healthcare expenses, or an outright boondoggle. Although medical malpractice suits have been stifled, healthcare costs continue to soar. If malpractice lawsuits were a problem in limiting affordable, quality healthcare at one time, the facts no longer support the idea that lawsuits remain part of the problem. Study after study shows malpractice costs as averaging around one percent of healthcare costs, but expenses continue to rise at an alarming rate.

Ken Shigley is a trial attorney in Atlanta, Georgia who has been listed as a “Super Lawyer” (Atlanta Magazine), among the “Legal Elite” (Georgia Trend Magazine), and in the Bar Register of Preeminent Lawyers (Martindale), and is a Certified Civil Trial Advocate of the National Board of Trial Advocacy,. Mr. Shigley has extensive experience representing parties in trucking and bus accidents, products liability, catastrophic personal injury, wrongful death, brain injury, spinal cord injury and burn injury cases.  Currently he is Secretary of the 40,000 member State Bar of Georgia.

Q.  When I had my first child in 1994, the MD performed an episiotomy which caused severe nerve damage (sliced through tissue from vagina to rectum). I did not file suit at the time because I was hoping the problem would resolve. It is now 14 years later and the quality of life has suffered terribly due to damage incurred. Is it too late to file suit for damages?

A. Georgia has a rather strict two year statute of limitation in medical malpractice case. Nothing in your question suggests applicability of any of the narrow exceptions. Sorry.

Ken Shigley is a trial attorney in Atlanta, Georgia who has been listed as a “Super Lawyer” (Atlanta Magazine), among the “Legal Elite” (Georgia Trend Magazine), and in the Bar Register of Preeminent Lawyers (Martindale), and is a Certified Civil Trial Advocate of the National Board of Trial Advocacy,. Mr. Shigley has extensive experience representing parties in trucking and bus accidents, products liability, catastrophic personal injury, wrongful death, brain injury, spinal cord injury and burn injury cases.  Currently he is Secretary of the 40,000 member State Bar of Georgia.

The grounds for the holding in Judge Bessen’s 22-page order include:

• Violates right to trial by jury guaranteed by the Georgia Constitution. The applicable Georgia constitutional provision states: “The right to a trial by jury shall remain inviolate, except that the court shall render judgment without the verdict of a jury in all civil cases where no issuable defense is filed and where a jury is not demanded in writing by either party.” Ga. Const. Art. I, Sec. I, Para. XI.  Where a right to jury trial existed at common law at the time of adoption of the Constitution, the Supreme Court has long held that where the legislature so clogs the right to jury trial with restrictions that it is directly or indirectly abolished, then that act is unconstitutional. The U. S. Supreme Court has recognized, relying upon common law cases back to the 1700’s, that it is the sole province of the jury to determine damages. “A limit or cap on noneconomic damages, however, invades the right to a jury trial by usurping one of the fact-finding responsibilities of the jury. . . . The imitations imposed by O.C.G.A. § 51-13-1 render the right of the jury to assess damages meaningless when, as here, their determination and award is altered by a legislative determination of what constitutes a “proper” award. The cap so interferes with the determination of the jury that it renders the right of a jury trial wholly unavailable.”
•  Violates the Separation of Powers Doctrine. The Georgia Constitution provides: “[t]he legislative, judicial and executive powers shall forever remain separate and distinct, and no person discharging the duties of one, shall, at the same time, exercise the functions of either of the others, except as herein provided.” Ga. Const., Art. I, Sec. II, Par. III.  Judge Bessen reviewed Supreme Court precedents going back to 1871 upholding the separation of powers doctrine. She found that a statute requiring reduction of jury’s verdict to a predetermined damages cap equates to a legislative remittitur, and that “the power to grant a remittitur is vested solely in the judiciary, and must be exercised in conjunction with the power to grant a new trial” and “the noneconomic damages cap operates as a legislative remittitur.”  Judge Bessen went on to find: “In effect, the statute completely disregards the jury’s deliberations and findings in determining the amount of damages which, in their sole discretion, fairly compensates the plaintiff. Instead, in all cases to which it applies, the cap substitutes a predetermined amount of noneconomic damages which the legislature has deemed appropriate. Moreover, it does so arbitrarily, without any consideration of the specific facts and circumstances of the case. Equally importantly, it does so without the option of a new trial for the injured plaintiff. As such, it unduly encroaches upon the judiciary’s constitutional right and prerogative to determine whether a jury’s assessment of damages is either too excessive or too inadequate within the meaning of the law.”
• Violates Equal Protection. The Georgia Constitution provides: “No person shall be denied the equal protection of the laws.” Ga. Const. Art. I, Sec. I, Para. II.  Judge Bessen found that there was “no rational relationship between statute and the expressed government interest to “promote predictability and improvement in the provision of quality health care services and the resolution of health care liability claims … . it is a complete contradiction to state that the overall quality of healthcare would be improved by shielding negligent health care providers from liability. In fact, as recognized by other courts, a cap on noneconomic damages actually diminishes tort liability for health care providers and diminishes the deterrent effect of tort law. . . . While reduction of costs for its constituents is a legitimate legislative objective, there is absolutely no evidence that these objectives are achieved by imposing a financial burden on the most victimized of plaintiffs.”

There’s a lot more to Judge Bessen’s lengthy dissection of O.C.G.A. § 51-13-1 but this covers the high points. 

Certainly there are two sides to every argument, and this is far from over. People of good will can and do disagree. In medical malpractice litigation there is inevitably conflict between deeply held and passionately advocated positions of victims of malpractice on one hand and conscientious and economically pressed health care providers on the other.  A ruling like this from a trial court judge is just a starting point.

Now the case will go to the Georgia Supreme Court. When an earlier order from Judge Marvin Arrington holding this statute unconstitutional was on the Supreme Court docket, the insurance company made an offer the plaintiff could not refuse.

The context of Supreme Court consideration of the issue is that Chief Justice Leah Sears recently announced her plan to leave the Supreme Court in June after a distinguished judicial career.  There has been a report she is being considered for the position of dean of the University of Maryland Law School, and her name comes up in speculation about who President Obama might appoint to the U. S. Supreme Court.

With Chief Justice Sears leaving the Supreme Court, Governor Perdue will get his second appointment to the Georgia Supreme Court.  His first appointment to the Court was Justice Harold Melton, who at the time of his elevation to the court was the 39-year-old African American executive counsel to the Governor. Justice Melton has been a delightful addition to the Court who appears to fit seamlessly into that collegial context.

By the time this case reaches the Supreme Court, Governor Perdue’s next selection will be on the Supreme Court.  There has been much uninformed speculation about who the Governor might select for this appointment.

It would take a degree of political courage for the members of the Georgia Supreme Court to affirm Judge Bessen’s order on the med mal cap.  All state Supreme Court justices in the country these days are acutely aware of the well-funded political campaigns that have been mounted against re-election of state appellate judges by groups with agendas generally perceived to be more favorable to business and insurance interests.  In a number of states, those campaigns have reshaped the state appellate courts.  In Georgia, we saw such a campaign in 2006 against Justice Carol Hunstein fall far short, as the challenger had underestimated the fight in the lady who is set to become our Chief Justice this summer.

All of this drama takes place on a rather intimate stage, as most of the players know each other very well.  I’m by no means a core insider, but I’ve enjoyed serving on committees or breaking bread with virtually all the players among the lawyers and judges involved over the past few years. They are all good, conscientious people whose jobs involve making a lot of hard choices.

There is much speculation — much of it uninformed — about how this will turn out. I expect it will be a close decision by Justices conscientiously trying to do the right thing as they honestly see it.

In the end, we always return to the maxim that the hard choices are never between good and bad, but between good and good, and between bad and bad.

Ken Shigley is a trial attorney in Atlanta, Georgia who has been listed as a “Super Lawyer” (Atlanta Magazine), among the “Legal Elite” (Georgia Trend Magazine), and in the Bar Register of Preeminent Lawyers (Martindale), and is a Certified Civil Trial Advocate of the National Board of Trial Advocacy,. Mr. Shigley has extensive experience representing parties in trucking and bus accidents, products liability, catastrophic personal injury, wrongful death, brain injury, spinal cord injury and burn injury cases.  Currently he is Secretary  of the 40,000 member State Bar of Georgia, of which he will become Treasurer in June.

A few days ago, a DeKalb County jury returned a $1.25 million verdict for the family of an amputee who died due to bedsores allegedly caused by substandard care at Kindred Healthcare’s Tucker Nursing Center in 2002, as reported by Andy Peters in the Fulton County Daily Report.

The plaintiffs’ claim was that the patient was left to lie in his own waste for hours because nursing home caregivers neglected to turn him, as required by law, leading to development of stage-four bedsores on his buttocks that penetrated to the bone.  As a result, he went into a catabolic state, a condition in which his tissues began breaking down, which led to malnutrition, additional bedsores, extreme inflammation of his entire body, and eventually death.

The defense claimed that all this was was expected due to the patient’s underlying medical issues and history of prior skin integrity issues, other medical problems, and neglect by other caregivers.  The defense that the patient was old and sick anyway apparently did not work with the jury.

This reminds me of a nursing home malpractice case I handled several years ago in which an elderly woman at a nursing home developed a pressure sore on her ankle due to attendants leaving her in one position in her wheelchair far too long. This led to gangrene and amputation. When she returned to the nursing home after amputation of that leg, an attendant dropped her and broke the other leg, causing immense additional suffering. Whatever quality of life she had before was pretty much lost.

At this firm we have lawyers who regularly handle nursing home malpractice, abuse and neglect cases.

Ken Shigley is a trial attorney in Atlanta, Georgia who has been listed as a “Super Lawyer” (Atlanta Magazine), among the “Legal Elite” (Georgia Trend Magazine), and in the Bar Register of Preeminent Lawyers (Martindale), and is a Certified Civil Trial Advocate of the National Board of Trial Advocacy,. Mr. Shigley has extensive experience representing parties in trucking and bus accidents, products liability, catastrophic personal injury, wrongful death, brain injury, spinal cord injury and burn injury cases.  Currently he is Secretary of the 40,000 member State Bar of Georgia.

The 17 Georgia nursing homes rated “much above average” include: 

• A.G. Rhodes Home (Marietta)
• Brightmoor (Griffin)
• Carlyle Place (Macon)
• College Park Health Care Center
• Dade Health & Rehab (Trenton)
• Family Life Enrichment Center (High Shoals)
• Golden Living Center (Rome)
• Gwinnett Extended Care Center
• Heritage Healthcare (Toomsboro)
• James B. Craig Center (Milledgeville)
• Kentwood (Augusta)
• Presbyterian Village (Austell)
• Providence (Sparta)
• Regency Park (Dalton)
• Riverside (Thomaston)
• Rosehaven (Thomasville)
• Willowbrooke (Gainesville)

But out of 358 nursing homes in Georgia, 115 rate “much below average.”  Too many to list here.

If a loved one has been a victim of abuse or neglect ina nursing home, call us.

 Ken Shigley is a  trial attorney in Atlanta, Georgia . He has been rated as a “Super Lawyer” (Atlanta Magazine), one of the “Legal Elite” (Georgia Trend Magazine), and a Certified Civil Trial Advocate (National Board of Trial Advocacy,).  Mr. Shigley is currently Secretary of the 40,000 member State Bar of Georgia.  To increase capacity for handling more and larger cases, he recently became “of counsel” with the law firm of Chambers, Aholt & Rickard.

However, a catastrophic medical malpractice case with substantial economic loss may still result in a large recovery.  The death of a high income individual due to medical malpractice is still of substantial value in court, while the wrongful death of a homemaker or retiree may be treated in court as if the person’s life had no value. That is because the cost of prosecuting is malpractice case is no high ($50,000 to $100,000 or more) that it is not economically feasible to pursue a case where the damages are capped at $350,000.

A recent Maryland case, which like Georgia has a cap on noneconomic damages, illustrates how a medical malpractice case may still hold substantial value even after tort reform.

In that case, a 47 year old man visited a dermatologist for a checkup in 1998. The doctor found a mole on his lower back and wrote a letter to the man’s primary care physician recommending it be removed. But it was not removed.

It was noted again in September 2004 when the patient  returned to have boils on his upper back examined. He saw a new, part-time doctor in the same dermatology office, who suggested that two cysts and an atypical mole on the upper back be removed, but  that the mole on the lower back be monitored, although it had doubled in size since 1998. The second doctor in the dermatology office was unaware of the size increase because the first dermatologist had purged his old records, as is allowed under state law for records more than five years old.

The patient returned to the dermatology office in August  2006 when his wife noticed the mole on his lower back had changed color. It was removed, but shortly afterward it was found the cancer had traveled to dozens of lymph nodes in his ‘s groin and lower abdomen. The cancer traveled to Semsker’s brain and he died in October 2007.

At  trial, the lawyer for the patient’s family called as an expert witness a  melanoma researcher, who testified the patient would have had a 95 percent chance of a complete cure if the mole had been removed in 2004, but  the delay allowed the cancer to travel into the bloodstream and become incurable.

The first dermatologist’s insurance will pay the lawsuit, allowing his practice to continue.

The jury returned a wrongful death verdict for $5.8 million, but it was reduced to $3.6 million due to a Maryland cap on non-economic damages in medical malpractice cases similar to the current Georgia malpractice law.

Ken Shigley is a Georgia trial lawyer focused on cases of catastrophic personal injury and wrongful death. He has represented surviving family members in numerous wrongful death cases, as well as numerous survivors of brain and spinal cord injuries.  Mr. Shigley has been rated as a “Super Lawyer” (Atlanta Magazine), one of the “Legal Elite” (Georgia Trend Magazine), and a Certified Civil Trial Advocate (National Board of Trial Advocacy,). He served a decade on the faculty of the Emory University Law School Trial Techniques Program.  Mr. Shigley is currently Secretary of the 40,000 member State Bar of Georgia, and “of counsel” with the law firm of Chambers, Aholt & Rickard, which has an extensive practice in hospital and nursing home liability.

If you have ever spent night after night in a hospital room keeping vigil with a heavily sedated family member, as I have too often and too recently, you can imagine how mismanagement of the hospital bed could pose that danger.

The Hippocratic Oath from days of ancient Greece admonishes physicians, “first do no harm.” That should apply to the hospital or nursing home as well as the doctor.

The risk of entrapment and even death due to the positioning of hospital bed rails has been well known for a long time. Data on this has been publicly available since 1985.  The Food and Drug Administration first issued a warning to home health agencies, nursing homes and others in 1995.

Generally the defendant in such a case would not be the individual physician or medical practice group. Rather, it would be the equipment supplier, hospital, nursing home or home health agency that supplied and managed use of the hospital bed,  or the manufacturer of the bed.

We are always available to review potential cases resulting from such incidents.

For more information about the foreseeability of such incidents to professionals in the nursing and medical management fields, see:

• FDA Issues Guidance on Hospital Bed Design to Reduce Patient Entrapment (2006)
• FDA Proposes Hospital Bed Entrapment Rules (2004)
• FDA Safety Alert: Entrapment Hazards with Hospital Bed Side Rails (1995)
• Reducing risk of entrapment in hospital beds (2006)
• Bed-rail entrapments still a serious problem (McKnight’s, 2008)(includes illustrations of entrapment patterns)
• Another hospital bed entrapment concern: ‘power down’ versus ‘gravity down‘ (McKnight’s, 2008)
• DEVICE SAFETY: Waking up to hospital bed entrapment risks  (NursingCenter.com, 2008)
• Warnings Do Little To Prevent Bed Rail Entrapment (Chicago Nursing Home Abuse Blog, 2008)

Ken Shigley is a Georgia trial lawyer focused on cases of catastrophic personal injury and wrongful death. He has represented surviving family members in numerous wrongful death cases, as well as numerous survivors of brain and spinal cord injuries.  Mr. Shigley has been rated as a “Super Lawyer” (Atlanta Magazine), one of the “Legal Elite” (Georgia Trend Magazine), and a Certified Civil Trial Advocate (National Board of Trial Advocacy,). He served a decade on the faculty of the Emory University Law School Trial Techniques Program.  Mr. Shigley is currently Secretary of the 40,000 member State Bar of Georgia, and “of counsel” with the law firm of Chambers, Aholt & Rickard, which has an extensive practice in hospital and nursing home liability.

The X-Ray Technicians blog recently posted a list of medical procedures with very high profit margins, suggesting that at least some of them may be overutilized.  As consumers of medical services, we should be alert to wastes of money, whether our own or the insurance company’s.  Some of the items on the list have the smell of frivolity, e.g, medi-spa treatments, chemical skin peels and botox injections.  But if I ever need it, I don’t want any skimping on spine surgery (been there, done that), heart surgery, diagnostic imaging and chemo. And I can tell you that the cardiac scan sure gave me a lot of peace of mind.

1. Medi-spa treatments: Spa treatments are spa treatments, whether you’re in a medical setting or not. The convenience factor and implied credibility of a medi-spa, however, means you’ll pay a lot more.
2. Mammogram: This high cost screening procedure has been found to be ineffective and can even spread malignant cells. The Cancer Prevention Coalition recommends clinical and self-exams as an effective low cost alternative.
3. Physician dispensed prescriptions: Doctors can make thousands of dollars a year dispensing medication out of their offices, and maintenance medications are especially profitable.
4. Chemical skin peels: In 2003, chemical peels created an annual gross of more than $578 million in the United States. This highly elective surgery commands higher pricing than low demand, complex procedures. Chemical peels are almost never covered by insurance.
5. Laser surgery: Laser-assisted surgery is a cash cow for both doctors and laser manufacturers.
6. Cardiac catheterization: Many medical centers find that they have a high return on investment of an arterial closure device that facilitates cardiac catherization.
7. Holistic medicine: Procedures such as acupuncture massage, and other alternative therapies are very lucrative, with a high margin of revenue when compared with the physician’s time spent.
8. Gastric bypass: Gastric bypass centers are popping up all over the country because obesity surgery is a high-margin business. Even better, it’s often fully covered by insurance.
9. Glasses and contacts: The glasses and contacts that you wear every day are a high-margin, repetitive product that makes a lot of money.
10. Radiopharmaceuticals: These therapeutic and diagnostic molecular imaging radioactive pharmaceuticals present a profitable venture for medical practicioners.
11. Heart scans: Cardiologists make millions by offering scans to baby boomers concerned with early screening.
12. Spine surgery: Sine surgery isn’t generally regarded as a high-volume, high-profit procedure, but it is moving in that direction. The Medical District Surgery Center in Last Vegas reports that doctors who perform spinal surgery are reimbursed from $3,000 to $35,000 per case.
13. Heart surgery: Heart surgery is an incredibly profitable procedure. So profitable, in fact, that a hospital in California carried out hundreds of heart operations instead of simpler, cheaper alternatives.
14. Hysterectomy: Hysterectomy is a high paid surgery, and it is a relatively fast procedure. Many women undergo hysterectomies to take care of fibroids and other reproductive troubles, when there are alternative procedures that are not as drastic and profitable.
15. Osteoporosis screening: This diagnostic procedure is a profit center for doctors, with an aging population that needs to be screened and insurance companies that are willing to reimburse generously.
16. Fertility treatments: Many doctors who offer fertility treatments enjoy high profits from their work, some of them even earning a commission for finding egg donors.
17. Circumcision: Circumcision create a billion-dollar a year industry. This unnecessary surgery is often recommended because it will prevent a variety of ills, however they have been largely discredited.
18. Chemotherapy drugs: Oncologists almost always sell chemotherapy drugs, which is a highly profitable source of revenue. If you feel that you’re not getting the right treatment for your cancer or you’re being treated with unnecessary chemotherapy, get a second opinion.
19. 24-hour access: Doctors can charge $3,000 or more every year by offering unlimited 24-hour access to themselves. So if you need help in the middle of the night, you’re going to pay for it.
20. Lab work: Some doctors can earn as much as $2.3 million every year just by running a lab in the office. This is especially profitable for practices that have patients that require bloodwork on a constant basis, like diabetics.
21. Outpatient procedures: Just about any surgery or procedure that’s performed on an outpatient basis is incredibly profitable because you can be discharged quickly.
22. Lasik: Lasik is a popular and profitable surgery, although it’s almost never paid for by insurance. This expensive procedure is responsible for a significant jump in the compensation of most opthamologists.
23. Diagnostic imaging: Procedures like CT, ultrasounds, and MRI will boost your doctor’s bottom line. An especially profitable imaging procedure is X-ray, because it’s cheaper to execute.
24. Botox injections: These aesthetic injections are profitable because they’re in high demand, and also because you’ll need to make a number of repeat visits for follow-up injections every few months.
25. Heart monitoring: Doctors can order devices like the Holter monitor without a huge investment, and reap large financial rewards for offering the service.

The Shigley Law Firm  in Atlanta focuses primariliy on representation of plaintiffs in wrongful death and catastrophic injury cases arising from motor carrier accidents statewide in Georgia.  Ken Shigley is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, and former chair of both the Southeastern Motor Carrier Liability Institute and the Georgia Insurance Law Institute. He focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, bus wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks.  Recently elected Secretary of the State Bar of Georgia, has been designated as a “SuperLawyer” in Atlanta Magazine and one of the “Legal Elite” in Georgia Trend Magazine. H

However, as soon as the bill passed, a few of us began to gather for a series of weekly breakfast brainstroming sessions focused on how to survive and prosper in the new environment. Those sessions helped transform the law practices of several of the participants. Other lawyers around the state began to go through the same sort of process of evaluation and change.

Three years later, we have seen an increase in the frequency and geographical distribution of impressive jury verdicts in injury and death cases. Even counties that had been viewed as black holes for plaintiffs are producing seven and eight figure jury verdicts.

The most recent was a $5 million verdict this week in a hospital malpractice wrongful death case in Gwinnett County. That case involved the death of a new mother due to a fall, as the hospital personnel had not followed fall precautions which were indicated.

Until very recently many of us had simply declined to accept cases in Gwinnett because the juries there were so notoriously hostile to personal injury and wrongful death plaintiffs. I haven’t heard how the $350,000 cap on noneconomic damages in medical malpractice cases may affect that, if at all. It would not be surprising for an economist to reach a $5 million economic valuation on the life of a promising young adult.

A couple of weeks ago in Fulton County, which used to be a big-verdict venue but in recent years has become much more conservative, there was a $54 million verdict, which was reduced to a mere $10.25 million due to the statutory cap on punitive damages which was enacted in 1987.

Last year we had a $2.3 million verdict in a trucking case in conservative, rural Gordon County..  There have even been million dollar verdicts in some of the small, rural, deeply conservative counties.

The “loser pays” provision of S.B. 3 — an “offer of setlement” feature in OCGA 9-11-68 which can require a party to pay the other side’s attorney fees and litigation expenses if it fails to do 25% better at trial than in trial than in a rejected settlement offer — was designed to intimidate and oppress plaintiffs.  However, it has primarily hurt the defense side. In one medical malpratice case, the plaintiff got some $4 million in fees and expenses added to the compensatory damage award under this provision.

There are quite a few other examples that I have not taken the time to compileon a Saturday morning of a holiday weekend.

Why have we seen an increase in substantial verdicts in Georgia after the tort reformers got everything they asked for in the legislature?  Certainly a few minor details of S.B. 3 have been held unconstitutional, but none of those points are substantially involved in these cases.

Another hypothesis is that tort reform has forced plaintiffs’ lawyers to work harder and smarter in case preparation. With so many obstacles thrown in our path, we have to work hard in investigation, in selection and preparation of experts, and in all aspects of trial strategy and preparation.

When that enhanced preparation encounters the most democratic of all institutions in American society — a jury of ordinary people from all walks of life with no political fears or aspirations related to their service on one case — serious cases can get serious verdicts.

Three years ago, one might have predicted that by now we would be out of business and our clients would be out of luck.  Today, however, it’s a great time to be a lawyer representing good people with legitimate claims of serious injury or wrongful death of a loved one.

The Shigley Law Firm  represents plaintiffs in wrongful death and catastrophic injury cases arising from motor carrier accidents statewide in Georgia.  Recently elected Secretary of the State Bar of Georgia, Ken Shigley has been designated as a “SuperLawyer” in Atlanta Magazine and one of the “Legal Elite” in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, and former chair of both the Southeastern Motor Carrier Liability Institute and the Georgia Insurance Law Institute. He focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, bus wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks.

The Federal Motor Carrier Safety Administration issued a warning Thursday on the anti-smoking drug Chantix, advising medical examiners “to not qualify anyone currently using this medication for commercial motor vehicle licenses.” Chantix, made by Pfizer, Inc., was attacked in a study by a non-profit group on Wednesday for possible links to seizures, dizziness, heart irregularity, diabetes and more than 100 accidents. The U.S. Department of Transportation warned all of its agencies almost immediately after seeing the report which reported that Chantix was linked to 988 serious events in the last quarter of 2007.

For more information, see this article by Alicia Mundy and Avery Johnson of the Wall Street Journal.

The Shigley Law Firm  represents plaintiffs in wrongful death and catastrophic injury cases arising from motor carrier accidents statewide in Georgia.  Recently elected Secretary of the State Bar of Georgia, Ken Shigley has been designated as a “SuperLawyer” in Atlanta Magazine and one of the “Legal Elite” in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, and former chair of both the Southeastern Motor Carrier Liability Institute and the Georgia Insurance Law Institute. He focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, bus wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks.

The cause arose out of the failure of doctors at the hospital in my hometown, Douglasville, to diagnose a broken neck, resulting is the patient becoming a quadriplegic.

Judge Arrington ruled that limiting the caps meant that in many cases, large jury awards would be issued only to would be issued only to wealthy people who could point to the loss of large incomes. “The statute effectively puts substantial limitations on the rights of the poor and middle class to recovery while leaving the right to virtually unlimited recoveries unimpeded for the wealthy,” Arrington said. “The disabled manager of a hedge fund, a corporate CEO, an entertainer or such other person whose income is in the tens of millions of dollars has a claim under Georgia law that would dwarf the amount awarded in any case for pain and suffering.”

The Medical Association of Georgia placed primary importance on the damages cap as the centerpiece of its tort “reform” legislation in 2005. I expect this ruling will stir the political pot again, putting renewed pressure on the Georgia Supreme Court. My hunch, for  better or worse, is that even though several other state supreme courts have held such damages caps unconstitutional, Judge Arrington’s ruling may be reversed in the Georgia Supreme Court.

The Shigley Law Firm  represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia. Ken Shigley was designated as a “SuperLawyer” in Atlanta Magazine and one of the “Legal Elite” in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, bus wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks.

The practical effect is virtual immunity from civil liability for any ER physician who cannot be clearly proven to be drunk or on drugs at the time of the incident. Virtually no attorneys are taking ER liability cases in Georgia  because even if it is a legitimate case of malpractice, and even after you invest hundred of hours and $50,000 to $100,000 in out of pocket expense, you still almost have to prove that the doctor was drunk or intended to harm the patient.

Now Senate Bill 286 would replace “showed gross negligence” with “failed to meet the applicable standard of care.”  That is still a very tough standard to meet, and the defense would probably still win 80% of the time, but in an egregious case it would be at least possible to bring a case.  It is supported by at least 15 state senators, 10 Republicans and five Democrats, including the Senate majority and minority leaders. However, the Medical Association of Georgia and Georgia Hospital Association strongly oppose it.

Due to the power of the lobbying forces arrayed against it, however, I will be utterly astonished if it passes.

The Shigley Law Firm  represents plaintiffs in wrongful death and catastrophic injury (including spinal cord and brain injuries) in cases statewide in Georgia, and in other states subject to the multijurisdictional practice and pro hac vice rules in each state.  Ken Shigley was designated as a “SuperLawyer” in Atlanta Magazine and one of the “Legal Elite” in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, and has been chair of both the Southeastern Motor Carrier Liability Institute and the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck and bus accidents and defectively manufactured products.

•  Laurel Baye Healthcare of Lake Lanier, in Buford
•  The Place at Augusta, in Augusta
•  Shoreham at Marietta, in Marietta

The Shigley Law Firm  represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia, and in other states subject to the multijurisdictional practice and pro hac vice rules in each state. Ken Shigley was designated as a “SuperLawyer” in Atlanta Magazine and one of the “Legal Elite” in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents.

The researchers started with the hypothesis that some self-disclosure by physicians had  a potentially positive aspect to building a doctor-patient relationship.  To their surprise, patients were not comforted and conversations got off track. Four out of five times when a doctor interjected personal information, the doctor never returned to the topic under discussion before the interruption. However, the researchershope that  doctors do not conclude that the best course is to clam up completely about themselves.

I wonder if this is also applicable to lawyers’ interviews with clients, and if I should cut out some of the personal conversation about personal experiences that seem — to me at least — relevant to a client’s situation.  However, in the long duration of most of my cases, I still think there is value in developing genuine friendship with clients that goes beyond the nuts and bolts of litigation.

The Shigley Law Firm  represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia, and in other states subject to the multijurisdictional practice and pro hac vice rules in each state. Ken Shigley was designated as a “SuperLawyer” in Atlanta Magazine and one of the “Legal Elite” in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks.

First, one report indicates that pharmaceutical companies have paid hundreds of millions of dollars to doctors in return for prescribing anemia drugs, the safety and effectiveness of which the FDA questions. . The anemia drugs are injected or given intravenously in physicians’ offices or dialysis centers. Doctors receive the rebates after they buy the drugs from the companies, but they also receive reimbursement from Medicare or private insurers for the drugs, often at a markup over the doctors’ purchase price.  Just  one group of six cancer doctors received $2.7 million from Amgen for prescribing $9 million worth of its drugs last year.

Second, an analysis of records  in Minnesota provides documentation of how financial relationships between doctors and drug makers correspond to the growing use of atypical antipsychotics in children, despite profound risks and almost no approved uses for minors.  From 2000 to 2005, pharmaceutical industry payments Minnesota psychiatrists rose more than sixfold, while  prescriptions of antipsychotics for children in Minnesota’s Medicaid program rose more than ninefold.  The New York Times data suggests that those who took the most money from makers of atypical antipsychotics medications  tended to prescribe the drugs to children the most often.

Doctors insist that payments from drug companies do not influence what they prescribe for patients, but the intersection of money and medicine, and its effect on the well-being of patients, has become one of the most contentious issues in health care.  This presents a real dilemma for patients who want and need to trust their physicians, but who are uninformed about the scientific studies about medications and the financial relationships between pharmaceutical companies, researchers, medical educators and prescribing physicians.

The Shigley Law Firm  represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia, and in other states subject to the multijurisdictional practice and pro hac vice rules in each state. Ken Shigley was designated as a “SuperLawyer” in Atlanta Magazine and one of the “Legal Elite” in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks.