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Lisa Shinaberry, CP from Harris Penn Lowry Savannah Office Elected Secretary of the Southeastern Association of Legal Assistants (SEALA)

View Article Posted January, 2010  

Screening Panels Are Not The Answer For Medical Malpractice Reform In Georgia

Posted by M. Brandon Smith January 10, 2010 11:24 PM

In a guest column in the Atlanta Journal Constitution on January 8, 2010, a medical services company’s CEO provides what many may assume is a novel and “middle ground” solution to the costs associated with medical malpractice in Georgia. Citing the example of Betty Nestlehutt, who was injured and permanently scarred as a result of a face-lift procedure, the CEO suggests that before an injured Georgia patient can bring her case before a jury, she should first have to convince a panel of medical professionals that her case has merit. Certainly the argument for screening malpractice cases is reasonable and even sound, but the problem with his proposal is that this pre-lawsuit screening system is already in place in Georgia.

Betty Nestlehutt's claim was pre-screened by numerous doctors, all of whom agreed that her doctor did not meet the minimum standard of care that she should have received. An affidavit giving specific details on the nature of her doctor’s malpractice was filed by a Georgia doctor who practiced the same type of medicine as the doctor who injured her. Despite these medical opinions validating her case, her doctor’s insurance company refused to resolve her case.

Contrary to tort reform folklore, the surgeon who testified on her behalf at trial was not some ‘hired gun’ who had never met Mrs. Nestlehutt. Rather, he was the Chief of Facial Plastic and Reconstructive Surgery at Emory University. His credibility stemmed not only from his extensive experience and training, but also because he had provided treatment to her following her injuries and knew her medical history down to the detail. He stood before the jury coming from a place of knowledge, principle, and fidelity to the high standards of the medical profession.

The same was not the case with the defendant’s insurance company. Testifying on their behalf were numerous hired witnesses who had never examined Mrs. Nestlehutt, yet were somehow able to testify that her doctor did nothing wrong. This is hardly the scenario that most Georgians would see fit to judge the merits of their personal injury.

As illustrated through Mrs. Nestlehutt’s case, the systematic screening of medical malpractice cases is already the law in Georgia. Malpractice cases filed in Georgia must be extensively reviewed by qualified medical professionals who must complete affidavits under oath detailing the specific acts of malpractice before the cases can even be filed. Moreover, these practitioners must work in the same field as the defendant doctor. In examining in Mrs. Nestlehutt’s case, the reviewing doctor on her behalf performed the same kind of plastic surgery that resulted in her injuries.

The state of Maine, which employs the legal processes endorsed by this tort reform columnist in the Atlanta Journal Constitution, is experiencing its own share of challenges. The Chief Justice of the Maine Supreme Court has gone on record saying that her state’s use of medical screening panels is “a cumbersome process with unpredictable results that cost both the plaintiffs and defendants money and time.” In her observation, not only does the system significantly delay justice, but perhaps more alarmingly it removes incentive for defendants’ insurance companies to reach fair settlements out of court.

So, what would “reform” of this nature mean for Georgia? It would mean that individuals who were legitimately harmed through medical malpractice would likely be significantly delayed at best, and at worst, totally prevented from seeking compensation for their injuries. For those trying to profit from frivolous lawsuits there would be no change – the majority would still be eliminated through the review process and expert affidavit requirement. The bottom line is that medical malpractice law is a difficult and complex issue which attempts to strike a balance between patients’ rights and the burdens on the medical profession. The solutions are not easy or clear cut, yet Georgia’s system of providing clear and informed safeguards against frivolous lawsuits while retaining access to a fair trial to injured persons is sound and just. One of the pillars of the justice system is to ensure that individuals retain their legal rights to a jury of their peers, not a panel of biased bureaucrats.

Others have voiced their opinions on this issue as well. Take a few moments to review the more informed response from the Georgia Trial Lawyers Association and fellow blogger Mark Zamora, who, like us, knows their opinions are the TRUTH.

HARRIS PENN & LOWRY FEATURED IN THE MARCH 2009 ISSUE OF GEORGIA SUPER LAWYERS MAGAZINE

ARTICLE FEATURING HARRIS PENN & LOWRY APPEARS IN THE ATLANTAN MAGAZINE

Harris Penn & Lowry featured in “The South’s Finest Lawyers”, South Magazine June/July 2008 Issue.

Jeff Harris Featured in "Daily Report" Article

Harris Penn & Lowry New Law Firm

Partners specialize in civil litigation

Savannah lawyers Jeff Harris and Steve Lowry and Atlanta lawyer Darren Penn recently formed Harris Penn & Lowry LLP.

The new law firm specializes in trial practice and has offices in Atlanta and Savannah. The partners have handled cases involving product defects, business disputes and catastrophic personal injury and wrongful death claims.

The firm has taken on some high profile cases, including representing the family of the slain court reporter at the Folsom County Courthouse last year. The firm also represents the family of Lisa Lopez from the pop group TLC who was killed in an SUV rollover in Honduras.

Before forming the new firm, Harris and Penn practiced at an Atlanta trial firm and Lowry practiced with a Savannah firm.

“We decided to start our own firm because we felt we could serve a niche that wasn’t necessarily being served by other firms,” Harris said. “Our focus is on using cutting edge technology to prepare every case for trial to a jury.”

Many firms have expertise in drafting legal documents or preparing a case with a focus on settlement but very few firms “focus intently on putting a case together with an eye toward how the case will be presented to lay people on a jury.” interjected Lowry.

“What really enhances the value of a case is if the other side knows that you are prepared and willing to go to trial,” Harris said.

Harris most recently managed the Savannah office of Scherffius, Ballard, Still & Ayres. He spearheaded the firm’s product liability section and handled cases about defectively designed vehicles. Harris was co-trial counsel in the firm’s $48 million verdict against the Ford Motor Co. in Sasser v. Ford in 2004, the largest product liability in Georgia history upheld on appeal. He also recently served as co-lead counsel in a medical malpractice case resulting in a $3.5 million verdict in DeKalb County.

Harris graduated at the top of his class from Mercer Law School in Atlanta. He received his undergraduate degree from the University of Georgia and an MBA in finance from the Mercer Business School.

Harris recently was recognized by Atlanta Magazine as a Rising Star Super Lawyer. Penn began his career in 1994 as a trial lawyer for State Farm Mutual Automobile Insurance Co. While at State Farm, Penn handled more than 100 trials as lead counsel in cases involving automobile accidents, premises liability, intentional torts, fire claims, theft claims, homeowner’s claims, insurance bad faith, and coverage disputes.

After leaving State Farm in 1997, Penn co-founded Penn & Pate LLP where he represented plaintiffs in a wide variety of personal injury and business tort trials. In 2000, Penn merged his firm with Scherffius, Ballard, Still & Ayres LLP.

Penn received both his undergraduate and law degrees from the University of Georgia.

Lowry began his legal career in Atlanta working with the late Joe Freeman, mostly for insurance companies and large corporations. After moving to Savannah, Lowry joined Middleton, Mathis, Adams & Tate and focused on litigation involving defective products, serious injury claims, class actions and insurance litigation. He was part of a team of lawyers that represented World War II prisoners of was that were used as slave labor by various Japanese corporations.

Lowry left the Middleton firm with two partners who started Carter & Tate, P.C. where he was involved in numerous automotive defect suits.

Lowry graduated cum laude from Northwestern School of Law of Lewis & Clark College in Portland, Oregon. Lowry received dual undergraduate degrees in History and Economics, magna cum laude, from the University of Maryland Baltimore County.