The COVID-19 pandemic has affected every aspect of our lives, and the legal system is no exception. Court hearings went from being in-person to virtual, and court dockets swelled as cases were postponed. In 2023, the legal system is gradually catching up with the slew of lawsuits filed since 2020.

The question of how the pandemic will affect jury verdicts, particularly in the areas of medical malpractice, is one that is starting to be answered by the courts. Let’s take a closer look at how this is unfolding in Georgia, and why medical malpractice mediation is often a smart option.

Filing a Medical Malpractice Lawsuit in Georgia

Any medical malpractice lawsuit must be filed within the statute of limitations. In Georgia, the case must be filled within two years of the date when an injury or death that arose from a negligent act or omission occurred. Georgia also has a statute of repose which provides a five-year filing deadline for cases when the negligent act of the health care provider couldn’t have been discovered and wasn’t discovered. That statute may also prevent a medical malpractice lawsuit, depending on the facts of the case.

There are several exceptions to these laws, however. For example, if a foreign object like a surgical instrument is left inside a patient, the patient has one year from the discovery of the foreign object to file a medical malpractice lawsuit, even if the other statutory deadlines have passed. A medical malpractice lawsuit involving a child who is less than five years old must be filed by the time the child turns seven. If the case involves an injury that could not be discovered, and wasn’t discovered, immediately, then the statute of repose would not run until the child turns ten years old.

In Georgia, as in many states, the plaintiff must also file an affidavit from a medical expert with his or her complaint that describes the factual basis of the claim and how the defendant’s negligent act (or failure to act) harmed the plaintiff. Without such an affidavit from a qualified medical professional, the lawsuit is subject to dismissal.

When it comes to damages, Georgia did at one time have a statutory damage cap on the books for medical malpractice cases that limited noneconomic damages to $350,000, and overall noneconomic damages to $1 million. However, the Georgia Supreme Court ruled these laws unconstitutional in 2010. As a result, medical malpractice cases can result in substantial verdicts in the millions of dollars.

The Elements of a Medical Malpractice Trial

To prove a medical malpractice case, the plaintiff will have to prove:

• There was a breach of the medical standard of care;
• That the breach caused injury or damage to the plaintiff; and
• Monetary damages for that injury (which may include medical bills, pain, and suffering, and/or loss of life).

At trial, both sides will have experts testify to the first two elements. In many cases, the “battle of the experts” may determine which side prevails. It’s not necessarily whether the expert is “qualified” but which one will carry the day with the jury. Which expert will convince the jury that what they’re saying is the right medicine? Often, this is the most determinative factor in a medical malpractice case.

There are other factors at play as well. Is the plaintiff likeable? Relatable? Is the plaintiff exaggerating his or her injury? But most importantly, is the plaintiff credible and believable?

As for the defendant, does the jury believe that the doctor did something or failed to do something that breached the standard of care? Can the case be defended on based on the medicine? Not all bad outcomes are malpractice. Sometimes the defendant did everything he or she could within the standard of care and the plaintiff was still injured. In such cases, malpractice is difficult to establish.

Other questions that arise at trial include whether the defendant can show that some other cause(s) resulted in the harm? The defendant may also argue that what happened is a known and associated risk of the treatment or procedure. Given the foregoing, it is easy to see why medical malpractice cases are so complex and so difficult to predict.

Recent Medical Malpractice Verdicts in Georgia

In the pre-COVID-19 world, medical malpractice defendants fared very well at trial with a substantial number of such cases resulting in defense verdicts or small verdicts. Large substantial verdicts were few and far between. In the post COVID-19 world, there appears to have been a shift as juries appear to be more empathetic.  The collective trauma we as a society experienced as we watched many become sick and even die during the pandemic has dramatically altered how juries value health and life itself. Now, it appears that juries have a greater appreciation for how precious and fleeting life and health may be, and this shift is being reflected in the amounts juries are awarding when making determinations of how much a life or injury is worth.

There is no better example of how juries are rethinking the value of life in Georgia than The Estate of Nicholas Carusillo v. Metro Atlanta Recovery Residences, Inc., et. al., a wrongful death case. In this case, the plaintiff had a decade long history of suffering from with bipolar disorder and substance use disorder. He was being treated at a dual diagnosis facility while seeking treatment for both his psychiatric issues as well as his addiction issues. While at the facility, the psychiatrist discontinued the plaintiff’s psychiatric medication “cold turkey” and reduced the other medications that were keeping him stable. and the plaintiff was then discharged after allegedly violating a facility policy. Several days later, he had a psychotic breakdown and wound up being killed while lying naked on an interstate. The jury awarded a $77 million verdict, including $10 million for pain and suffering and $55 million for the value of his life.

In Buckelew v. Womack, a man who had suffered a stroke that was misdiagnosed in the emergency room and wound up not being properly treated until the next day. The plaintiff wound up with locked-in syndrome and significant brain damage, and the jury found that two doctors committed malpractice by failing to diagnose the stroke when reviewing radiology of his brain, and by failing to communicate relevant information and test results that would have helped diagnose the stroke. The jury awarded Buckelew $29 million for medical expenses, and $46 million for pain and suffering.

In Threat v. Gamble-Webb, a pregnant woman had an amniotic fluid embolism that was mismanaged by her obstetrician during delivery. The court found that the doctor and nurse in charge of her care failed to properly monitor the baby and delayed performing an emergency cesarean section and hysterectomy. The delay caused oxygen deprivation and permanent brain damage to the baby. The jury made an award of $30 million total, $29 million for the baby and $1 million for the mother.

These are just a few examples of significant verdicts in med mal cases. There have been several other substantial verdict cases in the very recent past coming from all over the state.

Insurance Issues

In Georgia, we see cases that may be primed for substantial verdicts, or verdicts far in excess of insurance coverage. Yet despite the changes in verdicts, the amount of insurance carried by health care providers and practices has generally remained the same.

A typical medical malpractice policy may have $1 million in coverage, with another $2 to $3 million in coverage for the practice itself. These amounts are often insufficient to cover the sizeable verdicts being returned in recent years. In this environment, there is an increased risk for potential bad faith litigation against insurers.

The Mediation Option

The threat of an excess verdict is one reason medical malpractice cases may be well-suited for mediation. However, some insurance policies require the doctor to consent to settle a case. Because physicians must report settlements (and court verdicts), a doctor may be unwilling to settle a case and may insist on taking the case to trial.

I see this sometimes when mediating medical malpractice cases. The physician has a different analysis of the case and believes that the medicine he or she practiced was good and didn’t rise to the level of malpractice. He or she doesn’t have same perspective that a jury may have.

At a medical malpractice mediation, the first question is often whether the doctor has consented to settlement. Then you must determine realistically what you can expect to be on the table and how it aligns with plaintiff’s fair expectation of a number. Other questions to consider include:

• Does the plaintiff appreciate the risk of losing at trial?
• Where is the case pending? Different counties have different ranges of jury verdicts.
• Does the plaintiff need money? Has he or she received money from other defendants?

One challenge is that there isn’t always enough money to settle the case even with all the coverage on the table. That’s the tension point. The mediator talks to both sides about the potential risk of trial, whether that’s the risk of the defendant being found not liable, or a substantial verdict against the defendant. The defendant may also have the risk of the exposure of personal assets in a verdict that exceeds policy limits. These are compelling reasons for both sides to consider mediation as an option for medical malpractice cases in Georgia, and other states.

An experienced mediator, particularly one who has tried these types of cases, can help the parties navigate the complexities and pitfalls of a medical malpractice matter and explore creative ways to reach a resolution that considers the potential risks each party faces at trial.  Given the high stakes of going to trial, mediation should be a must in these types of complex matters.