Tort reform law debated before Ga. SC

John O'Brien Sep. 16, 2009, 6:00pm

Georgia Supreme Court Chief Justice Carol Hunstein

ATLANTA (Legal Newsline) - The Georgia Supreme Court on Tuesday heard a challenge to a state tort reform measure that installed caps on certain damages in medical malpractice lawsuits.

The 2005 measure limits recovery for non-economic damages on med-mal cases to $350,000. A Fulton County judge deemed unconstitutional in the case of Betty Nestlehutt, who said she was disfigured during a facelift.

Nestlehutt was awarded almost $1.3 million by a jury, which was more than allowed by the measure. She asked that the law be declared unconstitutional so she could receive the full amount.

Nestlehutt went through 35 treatments in a hyperbaric chamber to her wounds, but scarring and discoloration remained.

Attorneys for Atlanta Oculoplastic Surgery argued that capping damages does deny anyone the right to a jury trial, and that the state Supreme Court has upheld statutes that limit the recovery of damages in personal injury cases since 1848.

Nestlehutt's attorneys said the caps are unconstitutional for four reasons:

-Violation of the right to a trial by jury, which forbids the Legislature from curtailing any elements of a trial;

-Violation of the separation of powers through the Legislature's intervention;

-Violation of equal protection by imposing a financial burden on those most seriously injured; and

-Creation of a special law in an area governed by general laws.

The measure put a cap of $1,050,000 on claims against multiple health care providers. It was passed by a Republican majority in response to rising malpractice insurance premiums.

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