Georgia Supreme Court Blog

March 17, 2010

Statutory Limits on ER Liability Upheld by 4-3 Majority

Filed under: George Carley, Robert Benham, torts — bce30064 @ 5:50 pm

In a split 4-to-3 vote, the Supreme Court of Georgia has upheld the state’s emergency room statute as constitutional. Passed as part of the General Assembly’s 2005 “tort reform” legislation, the ER Statute states that certain emergency health care providers cannot be held liable unless there is “clear and convincing evidence” they were grossly negligent.

In today’s opinion, written by Presiding Justice George Carley (data), the majority finds that the statute is a “general law,” as opposed to a “special law,” and therefore passes constitutional muster. The Georgia Constitution prohibits special laws that are not applied uniformly throughout the state and when general laws on the same issue already exist.

The constitutional challenge of the statute stems from a lawsuit filed in Muscogee County by Carol and Robert Gliemmo. According to briefs filed in the case, the night of April 22, 2007, Carol Gliemmo felt a sudden “snapping in her head.” Her husband called an ambulance, which took her to St. Francis Hospital in Columbus where Dr. Mark Cousineau treated her in the emergency room. Cousineau diagnosed Gliemmo with “hypertensive urgency,” or greatly increased blood pressure. The Gliemmos later claimed the physician blamed her headache on “stress” and high blood pressure, prescribed Valium and sent her home. The hospital and physician claimed they gave her a beta-blocker to treat the high blood pressure and performed an EKG and blood tests. After her blood pressure went down and she told nurses she felt “much better,” they released her. Two days later, her family practitioner ordered a CT scan, which revealed a brain hemorrhage that left her paralyzed.

Gliemmo and her husband sued Cousineau, St. Francis and the physician’s employer, alleging professional negligence for failing to order a CT scan that would have detected her brain aneurysm. The defendants filed a motion to dismiss the case on the ground that the Gliemmos failed to establish that the emergency medical providers had been “grossly negligent,” and therefore they were not liable under Official Code of Georgia § 51-1-29.5 (c) – the state’s ER Statute. In response, the Gliemmos challenged the ER Statute as unconstitutional, arguing the statute is a special law because it gives special liability exemption to emergency medical care providers, despite general laws governing negligence claims that apply to all other health care professionals. The trial court judge rejected their challenge but asked for the state Supreme Court’s guidance before proceeding to trial.

“This Court has found a statute to be a special law where it .. deals with a limited activity in a specific industry during a limited time frame,” the opinion states. Georgia’s ER Statute “is not a special law affecting only a limited activity in a specific industry during a limited time frame. Rather…it is a general law because it operates uniformly upon all health care liability claims arising from emergency medical care as provided in the statute.”

The majority points out the General Assembly passed the legislation in response to the growing difficulty in finding and affording medical malpractice insurance. “Promoting affordable liability insurance for health care providers and hospitals, and thereby promoting the availability of quality health care services, are certainly legitimate legislative purposes,” the majority opinion states. “Furthermore, it is entirely logical to assume that emergency medical care provided in hospital emergency rooms is different from medical care provided in other settings, and that establishing a standard of care and a burden of proof that reduces the potential liability of the providers of such care will help achieve those legitimate legislative goals.” Joining the majority are Justices P. Harris Hines, Harold Melton and David Nahmias.

Justice Robert Benham (data) writes in a dissent that “the 2005 law is a special law that is unconstitutional on two grounds: the General Assembly previously enacted a general law concerning the standard of care to which medical personnel must adhere to avoid liability; and the classification of those affected by the new legislation is unreasonable.” Since 1863, Georgia law has required physicians to practice their profession with “a reasonable degree of care and skill,” and any injury resulting from a failure to do so can bring a lawsuit. Here, “the 2005 legislation affects a limited class of health-care providers, with that limited class defined by what health care they provide and where they provide it,” the dissent says. “Those within the limited class are protected from liability by a lower standard of care and a higher burden of proof…”

Case Details:
Attorneys for Appellants (Gliemmos): Michael Terry, Nicole Iannarone, Kamal Ghali, Traci Courville, Samuel Oates, Jr.
Attorneys for Appellees (Cousineau, St. Francis): Wade Copeland, Ashley Sexton, Roger Sumrall, Sean Gill

More Information:

  • Georgia Supreme Court Opinions Database: Gliemmo, et al. v. Cousineau, et al. (S09A1807)
  • Georgia Personal Injury Law Information: From the Center for Legal Solutions

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  • March 2, 2010

    Landmark Insurance Coverage Ruling: “Cause Theory” Adopted by Deeply Divided Court

    Filed under: David Nahmias, insurance, Robert Benham, torts — bce30064 @ 7:45 pm

    The Georgia Supreme Court has split 4-to-3 in response to a question posed by a federal court. The decision appears to fill void significant void in case law that arises when parties attempt to determine the extent of insurance coverage available in catastrophic injury cases with multiple victims. In a rare display of internal division, the Georgia Supreme Court has adopted the “cause theory” under which a single event has occurred for insurance purposes when numerous injuries were caused by the same act or omission.

    At issue is whether one accident or two occurred when a Ford Explorer driven by Rachel Griffin struck bicyclists Matthew Scott Matty and Jeffrey Michael Davis in Harris County, killing Matty and severely injuring Davis.

    According to the evidence and briefs filed in the case, in February 2008, Griffin hit the two bicyclists while all three were headed west on Georgia Route 315. First she hit Matty, who was thrown onto the windshield and over the top of her car. The impact killed him. About a second later, her Explorer hit Davis. Griffin told investigators that she had “blacked out” and had no memory of the wreck. The survivor, Davis, also had no memory of what happened.

    At the time of the incident, the Explorer was covered by an insurance policy Griffin’s parents had with State Auto, which stated that $100,000 was “the “maximum limit of liability for all damages from any one auto accident,” and that was “regardless of the number of” claims made or vehicles involved in the wreck. Family members of Matty and Davis have both submitted claims to State Auto, each demanding the maximum $100,000 allowed under the policy for each accident.

    The insurance company filed an action in the U.S. District Court for the Middle District of Georgia in Macon, asking the court to declare that the policy limits the total it can pay for both victims to $100,000 for the single accident.

    The federal court asked the state Supreme Court how to determine whether there has been one accident or two when a vehicle strikes one person then quickly strikes another when the term “accident” is not clearly defined in the policy. Specifically, the district court asks which of three approaches used by other states this state’s high court wants to use in defining “accident ” – the “cause” theory, which determines the number of accidents by the number of causes of the injuries, the “effect” theory, which says that each individual injury constitutes a separate accident, or the “event” theory, which looks to the number of events that resulted in the injuries.

    “We adopt the ’cause’ theory for application in Georgia,” the majority stated in an opinion written by Justice David Nahmias (data). “Automobile accidents involving multiple vehicles and multiple injured parties…are an everyday occurrence on our roads.” State Auto’s policy was clearly designed to limit liability in accidents involving multiple vehicles and multiple victims. “Defining accident as urged by the claimants – that is, by the number of impacts regardless of how close in time and place they occurred – would mean that there can never be one accident
    and a $100,000 limit of liability in a multiple vehicle collision, because it is virtually impossible for multiple vehicles to collide truly simultaneously…” Joining in the majority were Justices Hugh Thompson, P. Harris Hines and Harold Melton.

    In dissent, Justice Robert Benham (data) wrote that the majority “disregards a long line of precedent in this state that an insurance policy is a contract and, if there is any ambiguity to be found therein, the ambiguity must be construed against the insurer.” There is no need for a hard and fast rule, as the district court requests, the dissent stated. “Here, it is unnecessary to adopt any of the theories requested by the district court because the matter may be resolved by the rules of contract construction.”

    “Neither the district court’s nor the majority’s opinion explain why the rules of contract construction are insufficient to resolve the case at hand. Accordingly, I believe more analysis is warranted on the part of the district court…” Chief Justice Carol Hunstein and Presiding Justice George Carley join in the dissent.

    More Information:
    Georgia Supreme Court Opinion Database: STATE AUTO PROPERTY AND CASUALTY CO. V. MATTY, ET AL. (S09Q1846)
    Georgia Personal Injury Law Reference Page
    Georgia Insurance Coverage Reference Page

    Summary by the Georgia Supreme Court Public Information Office
    Attorneys for Plaintiff (State Auto): William Turnipseed
    Attorneys for Appellees (Matty): Peter Daugherty, Dustin Brown, Andrew Cash

    February 17, 2010

    Driver Not Entitled to Set-Off Employer’s Settlement from Verdict

    Filed under: Robert Benham, torts — bce30064 @ 2:37 pm

    The Georgia Supreme Court has reversed a decision by the Court of Appeals in a DeKalb County case that involves a dispute over the amount of damages one woman must pay another for the car crash she caused.

    According to evidence at trial, in 2004, Joan Dziwura struck the rear of a vehicle driven by Mindy Broda, injuring her. Broda and her husband sued Dziwura and Winmark Homes, the homebuilders for whom Dziwura worked. Dziwura was on her way to a meeting for real estate agents who were selling Winmark Homes when the accident occurred. Dziwura was covered by a $100,000 insurance policy, but the Brodas did not consider that enough, according to briefs filed in the case, and in 2008, the case proceeded to trial.

    While the jury was deliberating, Broda and Winmark Homes agreed on a settlement. Under the “high-low” contract, the parties agreed that if Winmark received a favorable verdict or was assessed less than $350,000 in damages, it would pay the Brodas $250,000. If the verdict against Winmark was over $350,000, it would pay the Brodas the exact verdict amount up to a maximum of $3 million. The Brodas agreed to forego the difference of any verdict above $3.1 million.

    After a week-long trial, the jury returned a verdict in the amount of $1,002,763, solely against Dziwura. The jury found that Winmark Homes was not liable for the wreck. Dziwura then filed a motion asking the court to reduce the $1 million verdict against her by the $250,000 Winmark had already agreed to pay. The trial court denied the motion, writing in its order that Winmark had been released from its liability and was therefore not a joint “tortfeasor” or wrongdoer. Dziwura appealed, and in March 2009, the Georgia Court of Appeals reversed the DeKalb County court’s ruling, finding that the amount she owed Broda should be reduced by the $250,000 because Broda was not entitled to recover an amount greater than what the jury awarded.

    In a unanimous decision written by Justice Robert Benham (data), the high court ruled that the Court of Appeals was wrong, and Dziwura was not entitled to a set-off. Any benefit the injured party receives, the opinion says, “should not be shifted so as to create a windfall for the tortfeasor.” “If a windfall must be had, it will inure to the benefit of the injured party rather than relieve the wrongdoer of full responsibility for his wrongdoing.”

    Here the jury determined Winmark Homes did nothing to cause Broda’s injuries. “Since appellee was found to be solely responsible for appellant’s injury, appellee was not entitled to a set-off for any payment received by appellant from a defendant whom the jury determined had no responsibility for the injury,” the opinion says.

    More Information:
    Georgia Supreme Court Database: BRODA V. DZIWURA (S09G1218)
    Georgia Personal Injury Law Reference Page

    More Information:
    Attorney for Appellants (Brodas): Michael Goldberg
    Attorneys for Appellee (Dziwura): William Anderson, Mary Beth Priest
    Summary by Georgia Supreme Court Public Information Office

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