Press
Tuesday, March 23, 2010
Legislators Are Left With Few Options
Overturning court's decision would require a constitutional amendment.
Don't expect the Legislature to try to respond this year to the Georgia Supreme Court's decision to throw out caps on pain and suffering damages in medical-malpractice cases.
Undoing the court's unanimous ruling probably would require the General Assembly to amend the state Constitution, according to three Republican state senators and two litigators in private practice. That's because the court used broad language in saying that caps violated the state Constitution's right to trial by jury.
A constitutional amendment requires the approval of two-thirds of the House and Senate. The legislation that made the damage caps law in 2005—Senate Bill 3—required only a simple majority of both chambers.
Monday, the day the Supreme Court's opinion was issued, was the last day that a new bill could be passed out of committee for approval in this year's session, according to Sen. Preston W. Smith, R-Rome, chairman of the Senate Judiciary Committee. And both the Senate and House are extremely busy this week with issues related to the budget, transportation and other matters, he said.
"That doesn't leave us with any reasonable options to work with right now," Smith said.
It wouldn't be impossible for the Legislature to approve a constitutional amendment this year, according to veteran state Capitol lobbyist Neill Herring. If lawmakers could find legislation that proposes to amend the state Constitution and that deals with the same section of the Georgia Code as the tort law, they could use that as a vehicle for a response to the court, said Herring, who lobbies for the Sierra Club and isn't lobbying on any tort-related issues. Such a vehicle would need to already have passed either the House or Senate, Herring said.
Another Republican senator, Don Thomas of Dalton, said the GOP doesn't have the votes to approve a constitutional amendment this year.
"We wouldn't have a two-thirds majority," said Thomas, a practicing physician who's chair of the Senate Health and Human Services Committee. "The minority party, a number of them would oppose it and we have some in the majority party that would oppose it, too."
Sen. John J. Wiles, R-Kennesaw, said he plans to try to tackle the court's opinion in next year's session.
"That would be an important thing for us to address," said Wiles, chairman of the Senate Special Judiciary Committee.
House Speaker David E. Ralston, R-Blue Ridge, is "disappointed" by the court's decision and is "evaluating the ruling and [will] make a decision in the next few days on how to proceed," said Ralston's spokesman, Marshall Guest.
Donald J. Palmisano Jr., general counsel of the Medical Association of Georgia, which represents physicians, said that the group is "looking at all of the different legislative options right now" and reading the court's opinion. Palmisano declined to say if he had spoken with individual legislators about filing new legislation or amending existing legislation.
Lawyers seemed to be in agreement that the court's ruling would require a constitutional amendment if the Legislature wanted to try to reverse the court.
"There's no statutory way around this," said Atlanta lawyer J. Marcus "Marc" Howard, who represents plaintiffs in med-mal cases. "It's based on the constitutional right to trial by jury."
Jonathan C. Peters of Atlanta's Peters & Monyak, who argued the defense side at the Supreme Court, agreed with Howard.
"Since the court has ruled that caps are unconstitutional, it would require a change to the Constitution," Peters said.
Even if legislation responding to the court were to pass the Senate, it's questionable whether it would be received positively in the House.
During the 2005 debates on SB 3, Rep. Wendell K. Willard, R-Sandy Springs, tried to amend the legislation to raise the cap to $750,000. Ralston was quoted at the time as saying he supported Willard's amendment.
The House narrowly defeated Willard's amendment after then-Speaker J. Glenn Richardson urged lawmakers to reject it, and after Richardson cast the final vote to break a tie on the amendment.
Now Ralston is house speaker and Willard is both chairman of the House Judiciary Committee and vice chairman of the House Rules Committee, the body that decides what bills are brought to a vote in the full House. Willard could not be reached for comment.
The Legislature probably is too preoccupied with other issues this year to raise the highly controversial issue of changing tort laws, said Danny Orrock, deputy director of Georgia Watch, which opposed the 2005 tort law. The debate surrounding the passage of the 2005 law received intense attention from doctors and lawyers, who filled the halls of the Capitol in 2005 to make their case for or against the bill.
"It seems like the Legislature would want to fix the budget and make some decisions about transportation before they re-open some five-year-old wounds," Orrock said.
The court's decision on caps may be overshadowed by the attention that Georgia leaders are giving to Congress' approval on Sunday of President Barack Obama's health care-reform legislation.
Gov. Sonny Perdue issued a response on Monday condemning Congress' vote on the health care bill. The two Republican candidates for attorney general, Samuel S. Olens and F. Maxwell Wood, also issued statements blasting the congressional vote and calling for Attorney General Thurbert E. Baker to sue to challenge the constitutionality of the vote.
By Andy Peters, Fulton County Daily Report
