Georgia's Tort Reform: What Happened? What Now?
By Sun Choy


On February 16, 2005, Governor Sonny Perdue signed into law the Tort Reform Act of 2005. At the time, the sweeping legislation was touted by its supporters as necessary in order to fix all that ailed the tort compensation system, especially given the impression that the system was in a crisis with too many frivolous lawsuits and too many sensational "runaway" verdicts. Perhaps because of the political environment, much of the Act was never discussed publicly and most citizens, including most lawyers, did not understand what was passed.

Following passage of the Act, numerous commentators, academics and practitioners provided their best educated guess about the likely impact of the Act on tort litigation. For instance, one article announced the abolition of joint liability of defendants. With the abolition of joint liability, another author suggested that insurance companies would profit in many circumstances because juries would be required to apportion fault among defendants as well as non-party tortfeasors, thereby limiting exposure – at least in theory. At the same time, despite claims from the Act's supporters, others concluded that a careful examination of the amendments revealed that joint liability was alive and well under accepted principles of statutory construction. While opinions varied on the impact of the Act, everyone agreed that it would be challenged.

After half a decade of relentless attacks by plaintiffs on various sections of the Act, one of its cornerstones – caps on non-economic damages in medical malpractice cases – was recently struck down as unconstitutional by the Supreme Court of Georgia in Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt. In addition to the result, the fact that the decision was unanimous is striking, despite the purported political leanings of the justices. Although there have been previous victories for proponents of tort reform, Nestlehutt is a major set-back. Contrary to the (political) claims of legislative leaders behind the Act, it is widely viewed by many practitioners in the trenches that tort reform has had no real substantive impact on reducing the number of frivolous claims or creating a more favorable environment for businesses, including insurance carriers.

So, what now for tort reform? Certainly, some challenges to the Act will continue as cases filter through the courts – the largely unresolved issues pertaining to joint liability, apportionment and set-offs come to mind. In the meantime, some sections of the Act have proven to be useful, but not on the scale envisioned by the enactors. Anecdotal evidence suggests that the strategic use of offers of settlement (allowing for the recovery of attorney fees) has been effective in resolving cases. Of course, this section had to be tweaked (to make sense) and recently passed constitutional muster in Smith v. Salon Baptiste. With the Supreme Court's stamp of approval, more use of this section by plaintiffs and defendants alike can be expected.

Looking further down the road, the political will may no longer be strong enough to revamp the Act as the General Assembly grapples with more pressing issues such as unprecedented budgetary shortfalls. Given the recent enactment of health care reform at the federal level and the supercharged rhetoric of an election year, many of our politicians may be focused on health care reform at the state level more so than tort reform. If, however, any legislators (hopefully the few remaining lawyer-legislators) have the will and are actually listening, they should start with repealing the nonsensical statute that prohibits the introduction of any evidence that the plaintiff violated Georgia law by failing to wear a seatbelt. Even further, if legislators really want to limit the number of frivolous lawsuits, they should amend the Civil Practice Act and adopt more rigorous standards for motions to dismiss and motions for summary judgment. To be sure, there are many other measures for accomplishing the goals of tort reform, some of which are more controversial than others such as "loser pays" and completely scrapping judicial elections. At the end of the day, the irony in all this is that the push for tort reform will spawn more litigation in one form or another.

For more information regarding this article, please contact Mr. Choy at 770.818.1412 or by email at [email protected].



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