Five years after passage of legislation to limit rights of people who have been injured, the Georgia Supreme Court on March 22 unanimously held unconstitutional the $350,000 arbitrary cap on noneconomic damages in medical negligence cases. The "one size fits all" limitation on damages was found to violate the right to jury trial under the Georgia constitution.

Georgia’s constitution guarantees the right to a jury trial only with respect to cases as to which there existed a right to jury trial at common law or by statute at the time of the adoption of the Georgia Constitution in 1798. The Court traced the right to jury trial in medical malpractice cases all the way back to 14th century England and developed as part of English common law. That common law of England as it existed in 1776 was adopted as part of Georgia law prior to adoption of the first Georgia constitution in 1798. The existence of a cap on the damages that a jury can award violates the constitutional right to trial by jury. Click here for the full text of the decision in Atlanta Oculoplastic Surgery, PC v, Nestlehutt.

Because the unanimous ruling is based upon a broad constitutional principle, it would take a constitutional amendment to reinstate the cap. Only a few days remain to introduce such an amendment in the General Assembly, where it would be difficult to muster the required two-thirds majority in both the House and Senate.

No one expects the proponents of rationed justice to give up. But they will have a difficult path.




Ken Shigley,is treasurer of the State Bar of Georgia, of which he has been elected to become president-elect on 6/19/10 and president on 6/4/11.  He has extensive experience representing parties in  products liability, catastrophic personal injury, wrongful death, brain injury, spinal cord injury and burn injury cases. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacyhas been listed as a "Super Lawyer" (Atlanta Magazine), in the Bar Register of Preeminent Lawyers (Martindale), and among the "Legal Elite" (Georgia Trend Magazine).

For criteria to be considered in selecting an attorney, see The Smart Consumer’s Guide to Hiring a Great Lawyer.