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Oral Argument Recap – Gliemmo v. Cousineau – Georgia Tort Reform Challenge

October 6, 2009

This morning, the Supreme Court heard argument in Gliemmo et al. v. Cousineau et al. (S09A1807), a case challenging the constitutionality of the state’s reduced liability for emergency room doctors (the “ER provision” of the 2005 Tort Reform Act).  Gliemmo had felt a throbbing behind her eye and was transported to an emergency room.  Cousineau treated her and diagnosed her with “hypertensive urgency,” increased blood pressure, and treated her with a prescription.  Gliemmo’s husband claims the doctor prescribed Valium and sent her home, the hospital claims Gliemmo was treated for high blood pressure and given an EKG and blood tests.  Two days later, the family’s doctor ordered a CT scan, which showed hemorrhaging in her brain, leaving her paralyzed with neurological impairments.  Gliemmo and her husband sued, alleging negligence for failure to order a CT scan, and Cousineau and the hospital defended on the grounds that the affidavits failed to establish “gross negligence.”  The Supreme Court took the case to answer one question from the trial court: whether the statute is a “special law” that violates the uniformity clause of the Georgia Constitution.

Michael Terry argued the case for the Gliemmos as appellants and faced a very active Court.  He argued that the Georgia Tort Reform Act granted immunity for a small subset of doctors and hospitals working in emergency rooms.  In addition to elimination of the negligence cause of action, Terry said the statute also raised the burden of proof.  The only individuals impacted are those treated in emergency rooms – they are the only ones with the heightened standard and heightened burden of proof.

The question the Court requested the parties focus on was the “special laws” provision of the Georgia Constitution, that no special or local law can be passed as a general law by the General Assembly, except in one limited circumstance.  A major point of discussion was whether a “special law” means something different than a territorially-specific law.   In response to a question regarding case law saying that, generally a specific law prevails over a general law, Terry argued that that is a different situation from a “special law” that is limited in application.  Justice Nahmias asked if “special” does not mean “specific,” what it means, asking especially about carve-outs in tax laws, and Terry agreed that carve-outs may be unconstitutional.  Terry pointed out the Hicks case, which dealt with carving out a special group of school bus drivers for disparate treatment as a “special law.”  Terry argued that the ER provision was “special” because only applied to cases involving negligence in emergency rooms.  In response to the policy question of the frequency of emergency care, Terry argued that because not every doctor, hospital, and ambulatory surgery center can be covered, it is a special law.

In response to a question regarding the Terrell County case cited in the Georgia Hospital Association’s amicus brief, Terry argued the Pregnant Women’s Act (which also adjusted the standard of care) has nothing to do with this issue because it did not deal with the standard of care, but rather the payment of services.  Justice Carley questioned whether the Pregnant Women’s Act would become unconstitutional with that heightened standard of care if appellant prevailed.  Terry argued this was a situation of two different statutory schemes conflicting, and part of a comprehensive scheme with a much more complicated question.

Wade Copeland argued on behalf of Dr. Cousineau, the emergency room doctor, and faced far fewer questions from the Court.  Copeland argued Cousineau had never seen the patient, and had no history, and made the right decisions at the time.  Copeland immediately discussed the Pregnant Women’s Act case, Terrell County, saying that it dealt directly with the question of special laws, finding that the Act in that case was a general law.  He said it was not cited in the brief because of an error in research.  Copeland argued the ER provisions of the Tort Reform Act are applied uniformly across the state, because they are applied to every patient coming into every emergency room.  Copeland cited a series of policy arguments, noting the General Assembly’s belief in 2005 of a crisis in healthcare, and the shortage of doctors that is growing in the state, with the legislature wanting to recruit additional doctors to the state.  Copeland cited the different situations of emergency rooms, treating every patient who comes in, open 24/7, having a doctor on staff, with no medical history for the patient.

Copeland argued the legislature merely made an exception to a general law when carving out the ER standard, applying it to every person who enters a hospital for emergency care, instead of making a special law.  In response to a question regarding Celotex, regarding products liability claims for asbestos cases, Copeland said that the reason for the law being declared unconstitutional was because it was not applied uniformly throughout the industry.

Roger Sumrall argued on behalf of the hospital, using the second half of the appellee’s time, and also faced very few questions.  Sumrall opened with a continued discussion of the “rational basis” policy arguments in support of the ER provisions, citing differences in emergency departments and other healthcare providers.  Birth centers and ambulatory surgical treatment centers are not included in the heightened standards, because they accept a different type of patient for specific purposes.  In response to questions about whether all individuals who enter an emergency room or only emergency care, Sumrall agreed that the heightened standard is limited to those with emergency care needs.

Sumrall addressed Celotex, saying that previously there was a general statute of limitations for claims, and the law in question in that case created a special statute of limitations for asbestos claims.  The Court found that law was special because it carved out certain types of hazardous materials claims.  Sumrall said the Court moved to a reasonableness analysis of whether the exception created by the new law goes beyond just providing an exception to a general law.  In Celotex, Sumrall said if the law had applied to the whole industry, it would have been allowable.  In this case, he said the exception applies to the entire state and all hospitals.

Statistics

  • First question for appellants came at 1:16 into the argument.
  • Appellants used all the time allotted for argument without reserving any for rebuttal.
  • First question for appellee came at 1:57 into the argument.
  • Appellees used all but 23 seconds of the time allotted for argument.
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