Three cases could kill parts of ’05 legislation, whose supporters pledge to try to craft fixes.
Medical malpractice defense lawyer Paul E. Weathington’s handling of back-to-back trials in less than one month was unusual—and exhausting—enough, he said. Making things even more interesting was a ruling by Fulton County Superior Court Judge Jerry W. Baxter declaring unconstitutional the section of Georgia’s tort reform law requiring plaintiffs to show that an emergency room doctor demonstrated “gross negligence” before a legal action can proceed. But members of the plaintiffs’ bar who have been anticipating a challenge to the provision will have to wait a bit longer: The defense team elected not to lodge an appeal. They tried the case under the state’s prior law, and still won.
“The judge actually issued the order in December, and it was hotly contested at the time,” said Weathington. “We put our statements on the record, so we could have used that in an appeal if it had gone against us.”
But “there was a collective decision including the client and the insurer carrier” not to appeal, he said. “It was a reasoned decision that involved issues of timing and other appellate considerations.”
The case involved the death of 28-year-old Ana Hernandez, a married mother of three who died May 10, 2006, two days after going to Northside Hospital-Cherokee’s emergency room for stomach pain, which began after she underwent surgery for a tubal ligation earlier that day.
According to court filings, Dr. Brian Mason administered pain-killers, and Hernandez went to sleep. The next day, Mason examined her again, diagnosed her with post-operative pain and sent her home.
The following morning she awoke “screaming in pain,” according to plaintiff’s documents, and her husband rushed her back to the hospital, where another doctor performed emergency surgery to treat her for a perforated bowel and peritonitis. She died later that day.
On Feb. 6, 2008, Ramirez’s husband, Mario Ramirez, filed a medical malpractice suit charging Mason with gross negligence, seeking almost $1.25 million in medical and “loss of household services” damages, and unspecified additional damages for the loss of Hernandez’s life.
The defense challenged the suit both on the basis of Mason’s care, which it deemed appropriate, and on the allegations of gross negligence, which must be shown as required by O.C.G.A. § 51-1-29.5 in order to sue an ER doctor or other emergency service provider. The provision is among several of the sweeping changes passed by the General Assembly in 2005 as part of what still is popularly known as Senate Bill 3.
“Plaintiffs have challenged the constitutionality of this statute on numerous grounds,” wrote Baxter in his Dec. 23 order, which explained that he wanted to clear those arguments prior to trial.
In his three-page order, Baxter concluded that the law “violates the Georgia Constitution and therefore that statute should not be applied at the trial of this case.”
Baxter ruled that the law violates four provisions of the Georgia Constitution: those guaranteeing due process and equal protection, as well as its separation of powers doctrine and its prohibition of “special legislation.”
Baxter’s ruling on the gross negligence standard is the first such trial court decision of which Weathington is aware. Pope & Howard P.C. partner J. Marcus E. Howard, who chairs the Georgia Trial Lawyers Association’s amicus committee, said he has not heard of any such ruling.
“And I’m pretty certain I would have heard of any order like that,” said Howard, who was not involved in the Ramirez case.
But other provisions of the law have been challenged, sometimes successfully: The Georgia Supreme Court has struck down provisions dealing with venue and a requirement that a plaintiff waive privacy rights to medical records.
Also before the high court is a case challenging the caps on non-economic damages, which limits pain-and-suffering awards to $350,000 in the case of one defendant doctor or facility and $700,000 for two or more. Fulton County State Court Judge Diane E. Bessen declared those provisions unconstitutional in November, the second time a trial judge has made such a ruling. A similar order that had been before the court was rendered moot by a settlement last year.
“I think it’s telling that, for the second time, when a judge has found SB 3 unconstitutional, the defense has opted not to challenge it,” said Howard. “At some point, a losing plaintiff is going to get this before the Supreme Court.”
“I think everybody just had confidence we could win under the old standard,” said Weathington, who tried the case with associate Patricia B. Freije. “And we had a certificate of review from Judge Baxter, so we could have appealed, if we needed to.”
Following a week-long trial, the jury took about a day and a half to find in favor of the defense.
Hernandez’s attorneys, Andrew B. Cash and David N. Krugler of Cash, Krugler & Fredericks, were unavailable for comment, but Weathington said a confidential high-low agreement meant that Hernandez did recover something, and that there would be no appeal.
he case is Ramirez v. Mason, No. 2008CV146145 (Fult. Sup. Ct.).
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Weathington tried the Ramirez case on the heels of a two-week trial involving a woman who died a month after surgery to treat a duodenal ulcer.
Nancy Amis was 63 when she went to the ER at Gwinnett Medical Center on July 5, 2005, complaining of stomach pain and nausea, according to trial documents. She was admitted and underwent surgery, and returned several times over the next few weeks to have the surgical incisions tended by the operating surgeon, Kevin L. Jensen.
On Aug. 1, she went to her primary care physician, John D. Laurusonis, complaining of pain from one of the incisions, fever and diarrhea. The doctor said a “foul sweet sewer-type odor” and puss were emanating from the wound, and administered antibiotics.
Amis returned to Laurusonis for treatment for two more days, then went to North Fulton Medical Center where another doctor found a ventral hernia and abdominal abscess; he drained 60 cubic centimeters of fluid from her and admitted her to the intensive care unit, where she died Aug. 6.
On July 19, 2007, Amis’ husband filed suit against Jensen and Laurusonis, alleging that Jensen had refused to see Amis despite several pleas from her, and that Laurusonis had delayed treatment until it was too late.
Following a two-week trial that began Feb. 2 before Fulton County State Court Judge Susan E. Edlein, the jury took two days before awarding $515,000 to Amis’ husband and estate. The award was apportioned, with 70 percent of the liability being charged to Laurusonis and 10 percent to Jensen; Amis herself was deemed to be responsible for 20 percent of the liability.
“The sad part of this case is that these were both very nice people,” said Houck, Ilardi & Regas partner Frank A. Ilardi, who represented William Amis with partner Michael G. Regas II.
“The surviving spouse was a very nice man, and his wife was a very vivacious, giving woman, and I think the jury recognized that,” he said. Ilardi said the unbalanced three-way verdict split was “kind of puzzling.”
“I think they found that Dr. Laurusonis wasn’t credible on some key parts of his testimony, and Dr. Jensen—they just really liked him.”
And Amis’ liability?
“I think they wanted to say that, instead of just going back to Dr. Laurusonis, she should have been more proactive in seeking care,” he said. Weathington, who represented Jensen along with associates Amy M. Hoffman and Stanley P. Riepe, said he is “very happy” with the outcome.
“My client only had to pay about $50,000, so we’re not complaining much,” he said.
Carlock, Copeland & Stair partner Wayne D. “Dan” McGrew III, who represented Laurusonis with associate Spencer A. Bomar, did not respond to request for comment by press time.
Amis was a successful businesswoman and property owner, said Weathington, and the complaint had sought well beyond what the jury awarded.
“Given the amount they were asking for, somewhere north of $10 million, and lost earnings of $5 million, the verdict was well-received by the defense,” he said.
Again, there was a high-low agreement in place, said the lawyers, so there will be no appeal.
Weathington said that as happy as he was with the outcome of both cases, he’s not certain he’s ready for another trial marathon. “I’ve been in this business 25 years, and I’ve never tried back-to-back med-mal cases,” he said. “I’m tired.” The case is Amis v. Laurusonis, No. 2007EV002853D (Fult. St. Ct.).
By Greg Land, Fulton County Daily Report