March 23, 2010

The Georgia Supreme Court yesterday in Atlanta Oculoplastic Surgery v. Nestlehutt struck down as unconstitutional Georgia's statutory limitation on non-economic damages in medical malpractice actions.

Georgia had adopted a cap of $350,000 on non-economic damages in medical malpractice cases as part of its 2005 tort reform statute. (Prior post). The cap (codified at O.C.G.A. 51-13-1) caps non-economic damages at $350,000 in any action for medical malpractice, including an action for wrongful death.

The Georgia Supreme Court upheld the ruling of the trial court, that the statute was unconstitutional in light of Georgia's constitutional provision that "[t]he right to a trial by jury shall remain inviolate." (Ga. Const. of 1983, Art. I., Sec. 1, Par XI(a)).

The Court's opinion, which was unanimous, looked to prior Georgia cases intepreting Georgia's unique "right to trial" provision, finding that they prohibited statutory limitations on the right to trial in cases where the common law had permitted a plaintiff to have a trial. Citing Blackstone and other ancient authorities, the Court found that a cause of action for medical malpractice was well-established prior to the adoption of Georgia's Constitution and was, therefore, a right that could not be limited by statute.

In a later post I plan to contrast the reasoning behind this opinion with the Court's decision on loser-pays just last week.