ATRA not on board with Ga. SC decision

John O'Brien Mar. 23, 2010, 1:00pm


ATLANTA (Legal Newsline) - A national tort reform group is troubled by a Monday decision from the Georgia Supreme Court that struck down caps on noneconomic damages in medical malpractice lawsuits.

The 7-0 decision said placing limits on the amount that can be recovered violated a plaintiff's right to trial by a jury. The American Tort Reform Association, meanwhile, worries about the impact the decision will have on the state.

ATRA noted that federal health care legislation that is becoming law is "void of meaningful medical liability reform." Illinois' supreme court struck down similar caps earlier this year.

"Though Illinois' high court also chose recently to ignore the will of the people, as expressed by their representatives in the legislature and the office of governor," ATRA president Tiger Joyce said, "this similarly disappointing decision in Georgia actually bucks the trend.

"The majority of state supreme courts that have ruled in comparable cases have upheld the constitutionality of reasonable limits on so-called 'pain and suffering' awards, the unlimited potential of which drives many John Edwards-like personal injury lawyers, working on a contingency-fee basis, to bring speculative lawsuits that invariably raise the cost of health care."

The Georgia Supreme Court had upheld two other provisions of a 2005 tort reform package a week before its Monday decision.

"(W)hile we have held that the Legislature generally has the authority to define, limit, and modify available legal remedies, the exercise of such authority simply cannot stand when the resulting legislation violates the constitutional right to jury trial," Hunstein wrote.

The portions of the 2005 package upheld last week allow a party that attempted to settle to shift its attorneys fees to the party that refused to accept the settlement offer and say emergency room doctors can only be sued for gross negligence, not standard negligence.

Monday's decision stemmed from the case of Betsy Nestlehutt, who said she was disfigured by a botched facelift at Atlanta Oculoplastic Surgery.

A Fulton County jury awarded her $1.15 million in noneconomic damages, and the defendant moved to have that amount reduced. The trial judge, though, said the cap was unconstitutional.

"The very existence of the caps, in any amount, is violative of the right to trial by jury," Hunstein wrote.

The decision was applauded by Georgia Watch, which calls itself the state's leading consumer advocacy organization.

"We applaud the justices on our Supreme Court and their decision which appropriately concluded that a one-size-fits-all predetermined cap on damages violates protections guaranteed by the Georgia Constitution," said Danny Orrock, deputy director of Georgia Watch.

From Legal Newsline: Reach John O'Brien by e-mail at

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