Georgia Tort Reform Act Struck Down by Georgia Supreme Court   7 comments

Today, the Georgia Supreme Court issued the long-awaited opinion in the Nestelhutt case. The Supreme Court has held that legislation capping non-economic damages in a medical malpractice action at $350,000 and $1,050,000 in multi-defendant cases is unconstitutional because it deprives the injured plaintiff of their right to a jury trial.

Non-economic damages is defined in Georgia as “damages for physical and emotional pain, discomfort, anxiety, hardship, distress, suffering, inconvenience, physical impairment, mental anguish, disfigurement, loss of enjoyment of life, loss of society and companionship, loss of consortium, injury to reputation, and all other nonpecuniary losses of any kind or nature.”

The damages caps were intended by the legislature to help address what the General Assembly determined to be a “crisis affecting the provision and quality of health care services in this state.” Specifically, the Legislature found that health care providers and facilities were being negatively affected by diminishing access to and increasing costs of procuring liability insurance, and that these problems in the liability insurance market bore the potential to reduce Georgia citizens’ access to health care services, thus degrading their health and well-being. Id. The provisions of the Tort Reform Act were therefore intended by the Legislature to “promote predictability and improvement in the provision of quality health care services and the resolution of health care liability claims and . . . thereby assist in promoting the provision of health care liability insurance by insurance providers.”

Patient advocate groups expressed concern that the caps would essentially close the courthouse doors to injured patients such as stay-at-home parents and children because they had no economic damages. In those cases, non-economic damages are the only recoverable amounts, and, given the complexity and out-of-pocket expense of a medical malpractice lawsuit, contingent fee lawyers simply could not afford to take a case that could only result in an award of $350,000.

Importantly, the opinion is to be applied retroactively. That means that pending cases are no longer subject to the cap. Additionally, because caps were deemed to be an unconstitutional deprivation of the right to a jury trial, it does not appear that the legislature can re-institute the cap with a new bill. They’ll need a constitutional amendment.

The facts of the Nestlehutt case were as follows: In January 2006, Harvey P. Cole, M.D., of Atlanta Oculoplastic Surgery, d/b/a Oculus, performed CO2 laser resurfacing and a full facelift on appellee Betty Nestlehutt. In the weeks after the surgery, complications arose, resulting in Nestlehutt’s permanent disfigurement. Nestlehutt, along with her husband, sued Oculus for medical malpractice. The case proceeded to trial, ending in a mistrial. On retrial, the jury returned a verdict of $1,265,000, comprised of $115,000 for past and future medical expenses; $900,000 in noneconomic damages for Ms. Nestlehutt’s pain and suffering; and $250,000 for Mr. Nestlehutt’s loss of consortium. The statutory cap (OCGA § 51-13-1) would have reduced the jury’s noneconomic damages award by $800,000 to the statutory limit of $350,000.

The full opinion is available at

By: Render Freeman, a partner in our litigation group


7 responses to “Georgia Tort Reform Act Struck Down by Georgia Supreme Court

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  1. The Georgia legislature better get on the ball and pass a
    constitutional amendment right away or else the original
    problem of doctors leaving Georgia because of the high
    malpractice insurance will only get worse than it is with
    this new ruling by the Georgia Supreme court. Doctors have
    rights as well as patients. Patients have rights that include
    access to medical care which will certainly be rstricted
    by this repeal of tort reform because this ruling drives doctors out of business.

    Passage of the health care bill is a hollow victory if good
    doctors are put out of business. That leaves the vast majority
    of patients to be treated by nursing assistants and the like.
    When a doctor has to work for months to just get to O profit
    because of malpractice insurance, several more months for
    overhead expenses, and added in there all the government
    control regulations, the actual profit for the doctor keeps
    going down and down. The basic rule of business is that
    the business has to make a profit. This ruling is bound to
    frustrate doctors, especially those who have to pay their own
    malpractice as opposed to those doctors working for the government.

    What you will see happening is what already has happened in
    education when women were restricted in career pursuits.
    Once women were free they overwhelmingly chose fields other than
    teaching that paid more money. The remaining teachers through their unions are paid considerably more than those earlier teachers but practically every newspaper is reporting what
    ia known as the dumbing down of education with test scores
    to prove it.

    What will happen in medicine is that the very intelligent
    doctors will leave medicine and the younger ones who want
    more family time will take over medicine and relegate many
    truly medical practices to assistants. This will result in
    even more costs for medical care with far less beneficial
    medical results.


  2. The Georgia legislature had better make a constitutional amendment right away if they wish to keep the intelligent
    dedicated doctors they have and not drive them out of business
    because of outrageous malpractice insuraance. Doctors already
    have to work months for 0 profit just to pay the malpractice
    insurance, plus months for overhead expenses, plus months
    for all the government regulations put on them for paper work.
    The basic princial of business is to make a profit. Already
    doctors are finding that they are working with comparatively
    little profit.

    Doctors have rights as well as injured patients. They have
    the right to earn a profit in proportion to their work
    and expertise. Patients have a right to the services of
    dedicated doctors. This ruling puts both in jeopardy.

    The recent health care reform that passed the federal
    legislature is indeed a hollow victory if intelligent,
    dedicated, caring doctors are chased out of business because
    of malpractice insurance and the vast majority of patients
    will have to settle for the dumbing down of medicine just
    as it has happened in education.

    Newspapers across the country are reporting poor test results
    while teachers are receiving higher salaries, even considering
    inflation, than those salaries received by older women
    teachers who entered education at the time career options
    were limited for women. Some of the brightes women entered
    education. Once careers opened up for women the brightest
    abandoned education and went into fields that paid more
    money. Teaching is a difficult field just as medicine is
    a difficult field. The newspapers are rferring to the situation
    in education as the dumbing down of education. this is the
    future of medicine in George if the legislators do not pass
    a constitutional amendment.

  3. Hey, I found your blog in a new directory of blogs. I dont know how your blog came up, must have been a typo, anyway cool blog, I bookmarked you. 🙂

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  4. Tort Reform seems to be a major issue in every state. I really hope that the state of Georgia and doctors can resolved this issue in a way that will fairly bring justice to both the patients who sue and the doctors who practice.

  5. Tremendous post we have to spread the word about this website.You should have more interest .

  6. Thanks for the data… appreciated… been reading for awhile, and simply wished to let you know I proceed to get pleasure from your writing.

  7. It really is an important issue. wishng Georgia the best of luck.

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