Georgia Challenge to Damage Caps

Recently I wrote about a constitutional challenge to Missouri’s cap on damages awarded in personal injury (tort) suits. There are similar challenges in other states, and one of these is being reviewed now by the Georgia Supreme Court. As with the Missouri case, the Georgia court’s decision could impact the lives of people asbestos-related diseases, such as mesothelioma, who seek damages in court to care for themselves and their families.

Betty Nestlehutt, a 71-year-old real estate agent, wanted a more youthful appearance. Her doctor recommended that she have a full facelift and CO₂ laser resurfacing at the same time. But these procedures are known to be risky for a woman of Nestlehutt’s age, and the surgery resulted in severe facial disfigurement.

Nestlehutt sued, and in 2007 a jury in Fulton County, Georgia, awarded her $1,265,000. Of this, $900,000 was in noneconomic damages. However, in 2005 the Georgia legislature had placed a $350,000 cap on such damages as part of a “tort reform” law. This would have reduced Nestlehutt’s award to $715,000.

However, Nestlehutt filed a motion to lift the cap. Judge Diane E. Bessen of the State Court of Fulton County agreed, ruling that the damage cap was an unconstitutional infringement on Nestlehutt’s right to trial by jury under the Georgia constitution. Further, the judge said, the cap violates the separation of judicial and executive powers and the principle of equal protection under the law.

Judge Bessen also said,

“Of those injured by health care providers, there are two classification of victims – those who are most severely injured and, consequently, suffer the most pain and suffering, and those who are less severely injured.

“The cap’s greatest impact falls on those who are most severely injured, and creates classes of fully compensated victims and those only partially compensated. … In effect, the legislature has shifted the economic burden of medical malpractice insurance costs from the insurance companies and health care providers, including those negligent providers, to a small group of injured patients.”

In her ruling that the cap is unconstitutional Judge Bessen questioned whether a cap on damages is an effective way to lower health care costs, and said the Georgia’s legislature’s reasoning behind their 2005 tort reform law was flawed. This is similar to the argument behind the Missouri challenge, which is that the Missouri legislature based its tort reform law on faulty assumptions.

Judge Bessen also emphasized that noneconomic damages are not just “jackpots” awarded to a plaintiff but are meant to compensate the plaintiff for genuine losses that cannot be documented at the time of trial.

The defendant, Atlanta Oculoplastic Surgery, appealed, and the case was argued in front of the Georgia Supreme Court in September 2009. At that time Michael Terry, Betty Nestlehutt’s attorney, said that the Georgia legislature may have wanted to fix health care, "But they put the entire burden upon the backs and shoulders of those people who are most injured." The Georgia Supreme Court has not yet ruled on the case.

This entry was posted on Tuesday, January 26th, 2010 at 10:28 am and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.