Ga. Supreme Court upholds ER statute

A narrowly split Georgia Supreme Court on Monday upheld a controversial provision of the state's tort reform law that makes it extremely difficult for patients to recover damages in cases involving emergency room care.

Plaintiffs' lawyers argued the law creates what is tantamount to an insurmountable legal threshold for patients injured by malpractice in hospital emergency rooms. But attorneys for hospitals and insurers contend the statute takes into account what happens in chaotic ERs, where doctors are often faced with life-or-death decisions without knowing their patients' medical histories.

Separately, the state Supreme Court upheld another key provision of the 2005 Tort Reform Act in a case involving a former defensive end for the Atlanta Falcons. This provision encourages settlements in all civil tort lawsuits and penalizes litigants who do not accept good-faith financial offers to close a case.

State lawmakers have been eagerly awaiting the outcomes of a number of high-profile legal challenges. By the end of the month, the state Supreme Court is expected to decide the constitutionality of the cornerstone of the tort reform law -- the $350,000 cap on jury awards in medical malpractice cases.

The challenge to the ER provision was brought by Carol Gliemmo who went to a Columbus hospital in 2007 complaining of serious pain behind her eyes. She said an ER doctor sent her away with a prescription and failed to diagnose a brain hemorrhage that left her paralyzed.

Justice George Carley, writing for the court's 4-3 majority, said the Legislature had a legitimate reason to promote affordable malpractice insurance for hospitals and health care providers. Furthermore, he wrote, it is "entirely logical" to assume that ER care is different than care provided in other hospital settings. He was joined by Justices Harris Hines, Harold Melton and David Nahmias.

The law requires plaintiffs, in order to prevail in a malpractice suit involving ER care, to establish by "clear and convincing evidence" that an ER physician committed "gross negligence," which has been defined under Georgia law as the failure to exercise even a slight degree of care.

In dissent, Justice Robert Benham called the ER provision "unreasonable and arbitrary" and said it leaves ER patients with "a lower standard of care and a higher burden of proof." Benham was joined by Chief Justice Carol Hunstein and Justice Hugh Thompson.

Michael Terry, who argued the case on behalf of Gliemmo and her husband, said the decision will make emergency room practice less safe. "An ER doctor is now the one professional who is free to be negligent without legal repercussion," he said.

But Darrell Grimes, president of MAG Mutual Insurance Co., which insures most Georgia doctors, called the ruling "a victory for all emergency medicine physicians as well as patients."

Grimes said his company intends to cut malpractice rates for ER physicians as a result of Monday's decision. "This ruling allows ER doctors to continue to obtain affordable insurance and ensures that a sufficient number of ER doctors will continue to staff Georgia's emergency rooms," he added.

Sen. Preston Smith (R-Rome), a sponsor of the tort reform law, said the bill was written to protect doctors in tense situations. "They don't have the full information that sometimes you have in non-traumatic settings," he said.

In its other tort reform decision, the court ruled 5-2 in favor of former Falcon Chuck Smith and WQXI-AM over disparaging statements Smith made on the radio about a hair and nail salon owned by Cheryl Baptiste. Baptiste and her husband filed a defamation suit after Smith complained about the treatment his 11-year-old daughter received at the salon and encouraged listeners not to go there.

Smith offered the couple $5,000 to settle the case, but the salon owners did not accept it. Because Smith ultimately prevailed in the case, the Baptistes must now pay more than $50,000 in attorneys' fees, Smith's lawyer, Mark Trigg, said.

Now that it has been upheld, Trigg said, "the law could have a profound impact. It could be an effective tool for both plaintiffs and defendants."

Staff writer Ernie Suggs contributed to this article.