Cap on noneconomic damages in Medical Malpractice Case was unconstitutional

In Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 286 Ga. 731 (2010), the Georgia Supreme Court considered whether arbitrary limits to noneconomic damages in malpractice cases violated Georgia’s Constitution. Those limits were imposed as part of the Tort Reform Act of 2005, and were codified at O.C.G.A. § 53-13-1.

In Nestlehutt, Dr. Harvey P. Cole had performed CO[2] laser resurfacing and a full facelift on appellee Betty Nestlehutt. Complications arose resulting in Nestlehutt’s permanent disfigurement. She sued and a jury returned a verdict of $1,265,000. After the verdict, Dr. Cole’s counsel moved to reduce the amount awarded for noneconomic damages (e.g., pain and suffering) to $350,000 consistent with O.C.G.A. § 53-13-1. The trial court denied the motion, finding that O.C.G.A. § 53-13-1 encroached on the right to trial by jury, the governmental separation of powers, and the right to equal protection.

Before affirming the trial court the Supreme Court found that Georgia Constitution states plainly that “[t]he right to trial by jury shall remain inviolate.” The Court then found “it is well established that Art. I, Sec. I, Par. XI (a) “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 then reviewed which cases gave rise to trial by jury as of 1798. Since Georgia law is based on English common law, that required reference to Blackstone, whose commentaries are authoritative regarding the right to a jury trial as of 1798. See Rouse v. State, 4 Ga. 136, 145-47 (1848).

Blackstone’s Commentaries indicate that the first recorded medical malpractice case arose in the 14th century. By the mid 18th century, the concept of mala praxis was sufficiently established in legal theory as to constitute one of five classes of “private wrongs.” The first recorded medical malpractice case took place in 1794, four years prior to adoption of Georgia’s constitution. As with all torts, the determination of damages rests “‘peculiarly within the province of the jury.'” (Citation omitted.) Dimick v. Schiedt, 293 U.S. 474, 480 (3) (55 S. Ct. 296, 79 L. Ed. 603) (1935). See also OCGA § 51-12-12 (a) (“[t]he question of damages is ordinarily one for the jury”).

The Court concluded that at the time of the adoption of our Constitution of 1798, there did exist the common law right to a jury trial for claims involving the negligence of a health care provider, with an attendant right to the award of the full measure of damages, including noneconomic damages, as determined by the jury. The Court also declined to find substantial inequitable results under the present circumstances, and we held that its decision should be applied retroactively.