The $350,000 cap on noneconomic damages in medical malpractice cases, which was enacted by the Georgia legislature in 2005 as part of an omnibus tort reform bill  known as SB3, faces another constitutional challenge this week. Yesterday, Fulton County State Court Judge Diane Bessen held the cap unconstitutional in the case of Nestlehutt v. Atlanta Oculoplastic Surgery

The grounds for the holding in Judge Bessen’s 22-page order include:

  • Violates right to trial by jury guaranteed by the Georgia Constitution. The applicable Georgia constitutional provision states: “The right to a trial by jury shall remain inviolate, except that the court shall render judgment without the verdict of a jury in all civil cases where no issuable defense is filed and where a jury is not demanded in writing by either party.” Ga. Const. Art. I, Sec. I, Para. XI.  Where a right to jury trial existed at common law at the time of adoption of the Constitution, the Supreme Court has long held that where the legislature so clogs the right to jury trial with restrictions that it is directly or indirectly abolished, then that act is unconstitutional. The U. S. Supreme Court has recognized, relying upon common law cases back to the 1700’s, that it is the sole province of the jury to determine damages. "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."
  •  Violates the Separation of Powers Doctrine. The Georgia Constitution provides: “[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.” Ga. Const., Art. I, Sec. II, Par. III.  Judge Bessen reviewed Supreme Court precedents going back to 1871 upholding the separation of powers doctrine. She found that a statute requiring reduction of jury’s verdict to a predetermined damages cap equates to a legislative remittitur, and that "the power to grant a remittitur is vested solely in the judiciary, and must be exercised in conjunction with the power to grant a new trial" and "the noneconomic damages cap operates as a legislative remittitur."  Judge Bessen went on to find: "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."
  • Violates Equal Protection. The Georgia Constitution provides: “No person shall be denied the equal protection of the laws.” Ga. Const. Art. I, Sec. I, Para. II.  Judge Bessen found that there was "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."

There’s a lot more to Judge Bessen’s lengthy dissection of O.C.G.A. § 51-13-1 but this covers the high points. 

Certainly there are two sides to every argument, and this is far from over. People of good will can and do disagree. In medical malpractice litigation there is inevitably conflict between deeply held and passionately advocated positions of victims of malpractice on one hand and conscientious and economically pressed health care providers on the other.  A ruling like this from a trial court judge is just a starting point.

Now the case will go to the Georgia Supreme Court. When an earlier order from Judge Marvin Arrington holding this statute unconstitutional was on the Supreme Court docket, the insurance company made an offer the plaintiff could not refuse.

The context of Supreme Court consideration of the issue is that Chief Justice Leah Sears recently announced her plan to leave the Supreme Court in June after a distinguished judicial career.  There has been a report she is being considered for the position of dean of the University of Maryland Law School, and her name comes up in speculation about who President Obama might appoint to the U. S. Supreme Court.

With Chief Justice Sears leaving the Supreme Court, Governor Perdue will get his second appointment to the Georgia Supreme Court.  His first appointment to the Court was Justice Harold Melton, who at the time of his elevation to the court was the 39-year-old African American executive counsel to the Governor. Justice Melton has been a delightful addition to the Court who appears to fit seamlessly into that collegial context.

By the time this case reaches the Supreme Court, Governor Perdue’s next selection will be on the Supreme Court.  There has been much uninformed speculation about who the Governor might select for this appointment.

It would take a degree of political courage for the members of the Georgia Supreme Court to affirm Judge Bessen’s order on the med mal cap.  All state Supreme Court justices in the country these days are acutely aware of the well-funded political campaigns that have been mounted against re-election of state appellate judges by groups with agendas generally perceived to be more favorable to business and insurance interests.  In a number of states, those campaigns have reshaped the state appellate courts.  In Georgia, we saw such a campaign in 2006 against Justice Carol Hunstein fall far short, as the challenger had underestimated the fight in the lady who is set to become our Chief Justice this summer.

All of this drama takes place on a rather intimate stage, as most of the players know each other very well.  I’m by no means a core insider, but I’ve enjoyed serving on committees or breaking bread with virtually all the players among the lawyers and judges involved over the past few years. They are all good, conscientious people whose jobs involve making a lot of hard choices.

There is much speculation — much of it uninformed — about how this will turn out. I expect it will be a close decision by Justices conscientiously trying to do the right thing as they honestly see it.

In the end, we always return to the maxim that the hard choices are never between good and bad, but between good and good, and between bad and bad.


Ken Shigley is a trial attorney in Atlanta, Georgia who has been listed as a "Super Lawyer" (Atlanta Magazine), among the "Legal Elite" (Georgia Trend Magazine), and in the Bar Register of Preeminent Lawyers (Martindale), and is a Certified Civil Trial Advocate of the National Board of Trial Advocacy,. Mr. Shigley has extensive experience representing parties in trucking and bus accidents, products liability, catastrophic personal injury, wrongful death, brain injury, spinal cord injury and burn injury cases.  Currently he is Secretary  of the 40,000 member State Bar of Georgia, of which he will become Treasurer in June.