Georgia Supreme Court to Decide Important Law Concerning Plaintiffs in Lawsuit: The Constitutionality of Joint and Several Liability

In 2005 the Georgia Legislature enacted a law formally known as SB-3, often referred to as “tort reform.” SB-3 was intended to protect, among others, doctors who commit malpractice by making it more difficult to prove medical malpractice. One of the things SB-3 did was to put a limit, or a “cap” of $350,000 on what are called “non-economic damages.” What that means is that someone injured by medical malpractice could recover all of his or her medical expenses, lost income, additional costs associated with the injury, such as household help. But, the amount that could be recovered for pain and suffering from medical malpractice was limited to $350,000. Someone injured in a car wreck or other type of claim would not be subject to that limitation. In short, the legislature decided it was more important to protect doctors and their insurance companies than the victims of medical malpractice.

Fortunately, the Georgia Supreme Court ruled that the “cap” violated the Georgia Constitution. Although the “cap” is still part of the statute, it cannot be enforced. The Georgia Supreme Court now has before it a different challenge to SB-3 which eliminated joint and several liability and replaced it with apportionment.

An example is the best way to see the difference. Suppose a patient is injured because two doctors were negligent: a radiologist who made a mistake reading an MRI and a surgeon who made a surgical error. Let’s also say that each doctor has $1 million in insurance, for a total of $2 million. Let’s also say that a jury finds that both doctors were negligent and gives a verdict for the victim of $2 million. Under joint and several liability, each of the doctors is responsible for the entire amount of the verdict. Since each of the doctors had $1 million in insurance, the insurance companies would have to pay the entire $2 million.

That was the old law. Apportionment changes the rules. Under apportionment the jury has to decide one more thing. Once the jury decides that the two doctors were both negligent, the jury must then decide what portion of the injury each of the doctors is responsible for. So let’s say the jury awards the same $2 million, but finds that the surgeon is 75{e877e77b3b1e39d5e2bee5eaabd28914f2f7a924f4f9a0bcf54ce8ac27ca48a7} liable for the injuries and the radiologist is 25{e877e77b3b1e39d5e2bee5eaabd28914f2f7a924f4f9a0bcf54ce8ac27ca48a7} responsible. That would make the surgeon liable for $1.5 million, even though he only had $1 million in insurance. The radiologist would be responsible for $500,000, or 25{e877e77b3b1e39d5e2bee5eaabd28914f2f7a924f4f9a0bcf54ce8ac27ca48a7} of the entire $2 million. The end result is that the surgeon’s insurance would pay $1 million, the radiologist’s insurance would pay $500,000 and the victim would receive only $1.5 million.

By changing how a verdict is to be paid out, it is the patient/victim who loses. Under joint and several liability the victim collects $2 million. Same jury, same verdict, but under apportionment the victim recovers only $1.5 million. Once again, it is the patient/victim who suffers because of the change in the law.

The Georgia Supreme Court recently heard a case, and will soon decide, whether the apportionment statute violates the Georgia Constitution. This is an important case for Georgia injury attorneys, but for all Georgians who have been injured because of the negligence of others. As medical malpractice attorneys in Atlanta, Kaplan & Lukowski will follow this matter closely.