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Atlanta Judge Declares Georgia Medical Malpractice Cap Unconstitutional; Could California Be Next?

By Ross Jurewitz

Yesterday, Atlanta (Fulton County) State Court Judge Diane Bessen ruled that the Georgia cap on medical malpractice non-economic damages (usually referred to as "pain and suffering") violated the Georgia Constitution. The cap was enacted by the Georgia legislature as part of a sweeping tort reform bill in 2005, known as SB3.

In a 22-page order in the case of Nestlehutt v. Atlanta Oculoplastic Surgery, Judge Bessen ruled:

The Cap Violated the Right to Trial By Jury

"A limit or cap on noneconomic damages, however, invades the right to a jury trial by usurping one of the fact-finding responsibilities of the jury. . . . The imitations imposed by O.C.G.A. § 51-13-1 render the right of the jury to assess damages meaningless when, as here, their determination and award is altered by a legislative determination of what constitutes a ?proper? award. The cap so interferes with the determination of the jury that it renders the right of a jury trial wholly unavailable."

The Cap Violates the Separation of Powers Doctrine

The Georgia Constitution states: ?[t]he legislative, judicial and executive powers shall forever remain separate and distinct, and no person discharging the duties of one, shall, at the same time, exercise the functions of either of the others, except as herein provided.?

Judge Besson found:

"In effect, the statute completely disregards the jury?s deliberations and findings in determining the amount of damages which, in their sole discretion, fairly compensates the plaintiff. Instead, in all cases to which it applies, the cap substitutes a predetermined amount of noneconomic damages which the legislature has deemed appropriate. Moreover, it does so arbitrarily, without any consideration of the specific facts and circumstances of the case. Equally importantly, it does so without the option of a new trial for the injured plaintiff. As such, it unduly encroaches upon the judiciary?s constitutional right and prerogative to determine whether a jury?s assessment of damages is either too excessive or too inadequate within the meaning of the law."

The Cap Violates Equal Protection

Remembering that the US and Georgia Constitutions provide that everyone shall be subject to the equal protections of the law, Judge Besson wrote:

There is "no rational relationship between statute and the expressed government interest to ?promote predictability and improvement in the provision of quality health care services and the resolution of health care liability claims ? . it is a complete contradiction to state that the overall quality of healthcare would be improved by shielding negligent health care providers from liability. In fact, as recognized by other courts, a cap on noneconomic damages actually diminishes tort liability for health care providers and diminishes the deterrent effect of tort law. . . . While reduction of costs for its constituents is a legitimate legislative objective, there is absolutely no evidence that these objectives are achieved by imposing a financial burden on the most victimized of plaintiffs."

We are just digesting the Order and may add some additional thoughts later.

The question is, what does this increasing trend of state courts finding medical malpractice caps unconstitutional mean for California and its' longstanding cap of $250,000 under MICRA? Will California courts recognize this trend and review MICRA's constitutionality? Will California legislators and the Governor realize that (1) the never indexed for inflation cap and/or (2) the cap itself is unfair to Californians?

We will see.

Hat tip to Atlanta Medical Malpractice Attorney Ken Shigley for bringing this story to our attention.

Full post as published by San Diego Injury Lawyer Blog on February 10, 2009 (boomark / email).