Supreme Court of Georgia Upholds Tort Reform - ER Standards & Fee Shifting Rule

In Gliemmo et al. v. Cousineau et al., the Supreme Court of Georgia upheld medical malpractice tort reform.  Articles can be found at Law.com; Atlanta Journal Constitution; Business Week and Bizjournals.com.  The court's official summary of the opinion is copied below:

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, 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'," today's 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 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…”

The entire opinion is below:

Gliemmo Et Al. v. Cousineau Et Al.

Eleventh Circuit Affirms Sanction Against Lead Obama Birther Attorney Orly Taitz

On Monday, the Eleventh Circuit affirmed the $20,000 sanction against lead anti-Obama birther attorney Orly Taitz.  The district court's sanction order was discussed HERE.  Another Eleventh Circuit case involving Taitz was discussed HERE.  The Eleventh Circuit's order can be viewed HERE.  Thanks to How Appealing who linked to THIS Ledger Enquirer story.  For those not familiar with the story, below is a portion of the District Court's sanction order [see HERE]:

The Court finds that counsel’s conduct was willful and not merely negligent. It demonstrates bad faith on her part. As an attorney, she is deemed to have known better. She owed a duty to follow the rules and to respect the Court. Counsel’s pattern of conduct conclusively establishes that she did not mistakenly violate a provision of law. She knowingly violated Rule 11. Her response to the Court’s show cause order is breathtaking in its arrogance and borders on delusional.

Court Must Look To Surrounding Language To Determine If Venue Provision Covered All Disputes

In Camino v. Carl's Furniture, Inc. (3D09-2956), the Third District reversed an order transferring venue to Palm Beach County.  "The appellant purchased a leather sofa which was custom made. The price was over $4,000 and the price was paid in full. The appellant sued the appellee alleging that the sofa turned out not to be leather and it turned out to be poorly manufactured."  The defendant/appellee then moved to transfer the action to Palm Beach County based upon a contractual provision stating:

7. DEFAULT – In the event buyer cancels or otherwise does not adhere to the overall terms of the sales contract, Revolving Charge Agreement, Credit Card Agreement, buyer forfeits to seller any deposit, or payment amount as liquidated damages to be used for ordering, restocking, storage, financing and administrative expenses associated with the original sales contract. In addition buyer agrees that seller’s retention of these amounts shall be in addition to any other remedy to which seller is otherwise entitled, pursuant to the default provision of the Revolving Charge Agreement o[r] Credit card agreement. Legal venue for all disputes shall be Palm Beach County. Unless a separate written Revolving Charge Agreement or Credit Card agreement exists full payment for the sales contract is due and payable upon receipt of the merchandise, SELLER reserves the right to levy 1.5% interest per month, 19.56 Annual Percentage Rate, on any outstanding balances past due and unpaid by buyer. SELLER shall also be entitled to recover from buyer attorney’s fees and costs incurred in the enforcement of the terms of this agreement.

The Third District concluded that, based upon the language of the entire provision, the venue language only related to disputes arising from a default.  "See Sauder v. Rayman, 800 So. 2d 355, 358 (Fla. 4th DCA 2001) (in interpreting forum selection clause, Court looked to the intent of the parties and the language used in the particular forum provision)."

Filing Of Lis Pendens Not Basis For Tortious Interference Claim, Even When Done For Improper Purpose

In Fernandez v. Haber & Ganguzza, LLP (3D08-3195), the Third District held that "Although we do not agree with the actions taken by the Ganguzza law firm, we affirm because as a matter of law, the law firm is entitled to litigation immunity as to Fernandez’s tortious interference claim arising from the filing of the lis pendens in conjunction with pending litigation relating to the subject unit."

A lis pendens was filed for the purpose of stopping the sale of a condominium unit.  The Third District stated:

On appeal, Fernandez contends that the trial court improperly determined that absolute immunity applied and that there was sufficient record evidence of malice to overcome summary dismissal, though malice is not an element of proof to assert tortious interference. Although we believe that Ganguzza and his firm abused the legal process, we do not agree with Fernandez’s position.

***

In Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So. 2d 380 (Fla. 2007), the Florida Supreme Court held that absolute immunity applies to any act occurring during the course of a judicial proceeding, whether the underlying claim constitutes a common law tort or a statutory violation, including tortious interference with a business relationship, so long as the act has some relation to the proceeding. See also Boca Investors Group, Inc. v. Potash, 835 So. 2d 273 (Fla. 3d DCA 2002). In the case before us, it is undisputed that the lis pendens filed by Ganguzza’s firm was filed during the course of the judicial proceeding brought by the Association against Fernandez. There was undisputed evidence in the record that the law firm was directed by the Association to prevent the sale, thus the firm was privileged in placing the lis pendens in connection with the action for injunctive relief. Any proceeding based on statements made in connection with a judicial proceeding are not actionable.

Chief Justice Roberts Remarks At The University Of Alabama Law School

C-SPAN posted Chief Justice Roberts remarks at the University of Alabama Law School [see HERE].  C-SPAN's description of the remarks, given March 9, 2010, are below and the video is directly below the remarks.

Supreme Court Chief Justice John Roberts addressed students at the University of Alabama Law School about the history of the U.S. Supreme Court. Following his remarks he responded to questions from audience members. In response to a student, Justice Roberts said the Senate's confirmation process for federal judges is "broken down" and stated that President Obama's State of the Union speech degenerated "into a political pep rally."

Additionally, Los Angeles Times Supreme Court reporter David Savage talked about the Chief Justice' speech in the video below [which can also be found HERE]:

"Judiciary Approves PACER Innovations To Enhance Public Access"

Earlier this week, it was announced that PACER has a new feature, the Pacer Case Locator.  [Discussed HERE]. Today, the Judicial Conference of the United States announced other new PACER improvements through a press release titled "Judiciary Approves PACER Innovations To Enhance Public Access." The press release is below:

Judiciary Approves PACER Innovations to Enhance Public Access

Former USF Football Coach Sues For Breach Of Contract

Former University of South Florida head football coach Jim Leavitt filed a 53 page complaint, 120 pages with exhibits, against USF for breach of contract, access to public records, declaratory relief and injunctive relief.  The complaint, HERE, was filed in Hillsborough County, Florida Circuit Court.  Interestingly, the 21 page head coaching contract at issue is attached to the complaint.  Leavitt is seeking more than $7 million and claims he was improperly terminated after the univesity claimed to terminate him for hitting a student athlete.  Articles can be found at the Tampa Tribune (who posted the complaint); ESPN; the Orlando Sentinel; and My Fox Tampa Bay.  

Eleventh Circuit To Hear Title VII Case En Banc

The Eleventh Circuit voted to hear Corbitt v. Home Depot U.S.A., Inc. en banc.  The order vacates the prior panel opinion, Corbitt v. Home Depot, U.S.A., Inc., 589 F.3d 1136 (11th Cir. 2009), which itself vacated Corbitt v. Home Depot U.S.A., Inc., 573 F.3d 1223 (11th Cir. 2009).  The facts, from the introduction section of the Eleventh Circuit's 84 page December opinion (589 F.3d 1136) are:

The plaintiffs, David Corbitt and Alexander Raya (collectively, “Appellants”), appeal the entry of summary judgment in favor of the defendant, Home Depot U.S.A., Inc. (“Home Depot”), on their sexual harassment and retaliation claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–2000e-17, and their state law claims of assault and battery, outrage, and invasion of privacy. This action arose from the Appellants’ employment with and termination from Home Depot. The Appellants asserted claims of sexual harassment and retaliation in violation of Title VII, claiming that Home Depot’s regional human resources manager, Leonard Cavaluzzi, sexually harassed them and subjected them to a hostile work environment from approximately March of 2005 until mid-November of 2005, and that they were terminated on December 13, 2005 in retaliation for reporting the alleged sexual harassment. Home Depot denied their sexual harassment claim and stated that even if the alleged conduct occurred, the allegations did not rise to the level of sexual harassment under Title VII and did not constitute the intentional torts of assault and battery, outrage, or invasion of privacy. According to Home Depot, the Appellants were lawfully terminated for repeated violations of Home Depot’s policies.

Both now vacated decisions were 2-1, with Middle District of Florida Judge Patricia C. Fawsett dissenting.

Order Referring Action To "Proper Authorities"

In Hofmann v. EMI Resorts, Inc et al, (109cv20526 DE #956), Judge Gold entered an interesting order which is shown in its entirety below.  A portion of the introduction to the 35 page order stated:

The Special Master’s Report and Recommendation is very serious. For reasons stated in this Order, I have a solemn duty to “preserve the integrity of this Court” and to “notify the proper authorities” in accordance with the Federal Judicial Code of Conduct because I conclude that a crime has been, or may have been, committed in connection with a matter over which I preside. See Code of Conduct for the United States Judges, Compendium Section § 1.1(c) (2009); cf. Brookings v. Clunk, 389 F.3d 614, 623 (6th Cir. 2004) (“Additionally . . . Judge Clunk had an obligation to report potentially obstructive conduct to the proper authorities if he felt such conduct had occurred in a case before him.”).

***

While I understand Defendants’ concerns regarding a referral to the appropriate authorities, I cannot stand idly by as revelations of seemingly criminal activity continue to amass. In referring this matter to the authorities, I acknowledge and affirm that I am not a prosecutor. As such, the reference will be made in a neutral fashion, carefully calculated to avoid passing judgment on the culpability of the persons involved. However, to the extent that my silence can be construed as indifference to the allegations of criminal activity that have effectively engulfed this case, I remain silent no longer.

Hofmann v. EMI Resorts, Inc Et Al