The tort reform legislation that passed the Georgia legislature in 2005 involved an unfortunate clash between the medical and legal professions. Then just a rank and file attorney handling catastrophic personal injury and wrongful death cases in metro Atlanta, and a back row member of the State Bar Board of Governors, I had no real leverage to do anything but join in futile protest. Some of my conservative friends in the legislature said they didn’t like the bill either, but were unable to do anything but go along with party discipline.

But I felt at the time that there could have been consensus legislation, on which both sides could have signed off, if the right things could have been done a year or two earlier.  Friends on the other side of the divide expressed the same sentiment. Unfortunately, we had a political train wreck in which the bill that passed was loaded with some provisions that were contradictory or unconstitutional.

One of the provisions is to cap "noneconomic damages" (pain, suffering, loss of quality of life, etc.) at $350,000 in medical malpractice cases. The economic reality is that people who suffer catastrophic noneconomic damages, but without large economic loss, generally cannot hire a lawyer capable of competently handling their case. This is because it takes $50,000 to $100,000 of out of pocket expense, mostly for expert testimony and dealing with the other side’s experts, to properly prepare a medical malpractice case for trial. Because few victims of malpractice can fund that kind of expense, lawyers typically have to front the expense. It is not a sane business decision to risk $100,000 of one’s own money on a case where the maximum recovery is $350,000, as for the death of a homemaker or retiree due to malpractice.  A 40% contingent fee in a $350,000 recovery would be $140,000. The statistical probability of success at trial in even the most meritorious medical malpractice case is maybe 20%.  Even if a lawyer were willing to take that risk, and were successful, the net benefit to the hypothetical client would be only $110,000 out of $350,000, hardly an attractive proposition for lawyer or client.

Thus, the $350,000 cap on noneconomic damages effectively denies access to justice in cases where a person’s life is destroyed or devastated, but the provable economic loss is relatively small.  If the legislature intended to deny justice to victims of catastrophic injury due to medical malpractice who are of modest means, there could have been more straightforward ways to do it. 

Yesterday the Georgia Supreme Court heard oral arguments in the case of Nestlehutt v. Alanta Oculoplastic Surgery, PC,  in which a trial court judge had held the cap unconstitutional.  Mrs. Nestlehutt was a real estate agent who found she was losing business to younger competitors, so she consulted a plastic surgeon about removing bags under her eyes and age lines around her mouth. The surgeon recommended simultaneous CO2 resurfacing and a full facelift. This was particularly risky in a patient of her age and complexion. To make a long story short, her face essentially fell off, leaving her with horrible permanent disfigurement such that she could hardly leave the house. The jury awarded $900,000 for the devastation of her quality of life.

Fulton State Court Judge Diane Bessen held that the $350,000 cap is unconstitutional because it violates right to trial by jury, equal protection of laws, and separation of powers.

At the Supreme Court, attorney Michael Terry argued for Mrs. Nestlehutt that the most egregious aspect of the cap is that it hurts the people who are injured the most. “No frivolous cases are affected by the cap,” said Terry. “This makes no sense. It is not rational.”

Defense attorney argued that, “The Legislature found there was a crisis” that justified the caps, Peters added, referring to lawmakers’ findings that limits on medical malpractice awards were needed to help health care providers secure affordable malpractice insurance coverage."

Questions from the members of the Supreme Court gave little clue how they may be leaning, according to Alyson Palmer of the Fulton County Daily Report.

Perhaps the best outcome would be if the court unanimously held the damages cap  unconstitutional, and sent everyone back to the drawing board to come up with a different form of medical liability compensation system involving a genuine tradeoff between the legitimate concerns of doctors and patients.

Ken Shigley is a Certified Civil Trial Advocate of the National Board of Trial Advocacy in Atlanta, Georgia, whose law practice focuses on representing people who are catastrophically injured, and families of those killed, when companies violate rules designed for protection of public safety. 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. He 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).  He is a  Currently he is a national board member of the American Association for Justice Interstate Trucking Litigation Group and Treasurer of the 41,000 member State Bar of Georgia.

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