Where Do We Go from Here? the Future of Caps on Noneconomic Medical Malpractice Damages in Georgia

• Publication year: 2010

Georgia State University Law Review

Volume 28 . , „

Article 12

Issue 4 Summer 2012

4-3-2013

Where Do We Go from Here? The Future of Caps on Noneconomic Medical Malpractice Damages in Georgia

Laurin Elizabeth Nutt

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Recommended Citation

Nutt, Laurin Elizabeth (2011) "Where Do We Go from Here? The Future of Caps on Noneconomic Medical Malpractice Damages in Georgia," Georgia State University Law Review: Vol. 28: Iss. 4, Article 12. Available at: http://digitalarchive.gsu.edu/gsulr/vol28/iss4/12

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WHERE DO WE GO FROM HERE? THE FUTURE OF CAPS ON NONECONOMIC MEDICAL MALPRACTICE DAMAGES IN GEORGIA

Laurin Elizabeth Nutt*

Introduction

"We have taken a step back. Our rates will be more expensive and less accessible."¹ These were the words of Chairman of the Georgia Senate Judiciary committee, Preston Smith, on the day a unanimous Georgia Supreme Court struck down Georgia Code section 51-13-1, finding it unconstitutional.² The statute limited noneconomic damages, including physical and emotional pain, in medical malpractice lawsuits to $350,000.³ The decision leaves Georgia susceptible to the risks associated with allowing unlimited noneconomic damage awards such as a decrease in the availability of physicians, especially for the poor and people living in rural areas, and delayed or denied health care.⁴ In Atlanta Oculoplastic Surgery,

J.D. Candidate, 2012, Georgia State University College of Law. Thanks to Dean Kelly Timmons and the Law Review editors for their valuable insight and suggestions.

1. Bill Rankin, State High Court Overturns State's Tort Reform, Atlanta J.-Const., Mar. 23,

2010, at A1.

2. See id. (stating medical malpractice liability insurance rates will go up because the court struck down the noneconomic damages cap statute for violating Georgia's constitutional right to a jury trial for medical malpractice claims).

3. Ga. Code Ann. § 51-13-1 (2005), declared unconstitutional by Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 691 S.E.2d 218 (Ga. 2010). The Georgia Supreme Court found Georgia Code section 51-13-1 unconstitutional in violation of the right to trial by jury set out in Georgia's constitution because it takes away the jury's ability to assign damages. Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 691 S.E.2d 218, 223 (Ga. 2010). The figure of $350,000 was set after a study of the Maryland General Assembly found many non-frivolous, non-economic damage recoveries do not surpass this amount. Murphy v. Edmonds, 601 A.2d 102, 115-16 (Md. 1992).

4. See, e.g., Alyson M. Palmer, Court Kills Caps on Med-Mal Awards, Fulton Cnty. Daily Rep., Mar. 23, 2010 (quoting Medical Association of Georgia president, Gary C. Richter, who said, "this decision is a loss for patients concerned about physician availability"); Gov. Rick Perry, Tort Reform Must Be Part of Health Care Reform, Wash. Examiner (Aug. 12, 2009, 11:00 PM), http://washingtonexaminer.com/op-eds/2009/08/gov-rick-perry-tort-reform-must-be-part-health-care-reform ("Sixty percent of [Texas] counties had no pediatricians, which often meant delayed, or denied health care for sick children," due to frivolous lawsuits and cost of medical malpractice insurance); Roger A. Rosenblatt et al., Tort Reform and the Obstetric Access Crisis—The Case of the WAMI States, 154 W. J. Med. 693, 693 (1991) (stating changes in practice patterns due to medical malpractice

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P.C. v. Nestlehutt,⁵ the Georgia Supreme Court ruled the damage cap imposed by section 51-13-1 violated the right to a jury trial found in the Georgia constitution, which states, "The right to trial by jury shall remain inviolate."⁶

Described as the "cornerstone" of Georgia's 2005 tort reform law⁷ and "the most controversial part of Senate Bill 3,"⁸ the provision for caps on noneconomic damages became the focus of legal debate in Georgia.⁹ The states are split on whether these caps are unconstitutional. At least eleven states have ruled the statutes unconstitutional for various reasons, such as violation of the right to a jury trial or separation of powers, while over a dozen states have upheld the caps.¹⁰ Interestingly, no federal caps have been enacted and Congress declined to include a damage cap provision in the recently passed Health Care Bill.¹¹

severely affect poor women and women living in rural areas where providers have limited scope of obstetric practice).

5. Nestlehutt, 691 S.E.2d 218.

6. Ga. Const. art. I, § I, para. XI(a); Nestlehutt, 691 S.E.2d at 221. The court determined article I, section I, paragraph XI(a) of the Georgia constitution encompassed medical malpractice lawsuits because prior to adoption of the constitution in 1798, the state recognized medical negligence claims since there was a common law right to jury trial for claims involving medical malpractice that included damages determined by the jury. Nestlehutt, 691 S.E.2d at 223. The court further stated that the right to determine the amount of damages awarded is included in the right to a jury trial and requiring a court to reduce those damages undermines the jury's basic function. Id. (citing Lakin v. Senco Prods., Inc., 987 P.2d 463 (Or. 1999)).

7. Rankin, supra note 1.

8. Palmer, supra note 4.

9. Georgia High Court Says Damages Caps Violate Right to Jury Trial: Atlanta Oculoplastic Surgery v. Nestlehutt, 17 No. 12 Westlaw J. Health L. 7 (2010) [hereinafter Westlaw J. Health L.] (stating at least thirty other states have caps on non-economic damages with similar judicial reviews). See generally Advocacy Res. Ctr., Am. Med. Ass'N, Caps on Damages (2011), available at http://www.ama-assn.org/ama1/pub/upload/mm/378/capsdamages.pdf (giving an extensive table of all of the states that have passed damage caps and judicially reviewed them through 2011).

10. See, e.g., Nestlehutt, 691 S.E.2d at 223 (finding cap on noneconomic damages violates the Georgia constitutional right to trial by jury); Lebron v. Gottlieb Mem'l Hosp., 930 N.E.2d 895, 914 (Ill. 2010) (holding that a limit on noneconomic damages in medical malpractice lawsuits violates the separation of powers clause in the Illinois constitution); Etheridge v. Med. Ctr. Hosp., 376 S.E.2d 525, 529 (Va. 1989) (finding once the jury has assessed damages, Virginia's constitutional right to a jury trial is satisfied and a court can then apply law to the facts); Westlaw J. Health L., supra note 9. See generally Div. of Health Law, Am. Med. Ass'n, Constitutional Challenges to State Caps on Non-economic Damages (2012), available at http://www.ama-assn.org/resources/doc/arc/arc-constitutional-challenges-jan-2012.pdf.

11. Westlaw J. Health L., supra note 9 (stating a tort reform provision was left out of the Health Care Bill); Kevin Sack, Illinois Court Overturns Malpractice Statute, N.Y. Times, Feb. 5, 2010, at A13 (stating neither the House Bill nor the Senate Health Care bill included significant changes in the

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Reaction to the Georgia Supreme Court's ruling has been mixed.¹² For example, R. Adam Malone, attorney for the plaintiff in Nestlehutt, applauded the ruling for upholding the democratic values of this country that allow the people to self-govern through acting as jurors.¹³ Proponents of damage caps, including physicians and insurance groups, such as the Medical Association of Georgia, report that one thousand physicians have moved into Georgia since Senate Bill 3 passed and that insurance costs are down by eighteen percent.¹⁴ Opponents to the bill say that caps will not lower insurance premiums, that they fail to hold people accountable for actions, and that they deny proper access to courts. Opponents further contend that there are very few excessive jury verdicts.¹⁵

This Note has two primary purposes. The first is to examine the need for tort reform legislation in the United States in order to reduce health care costs for patients, doctors, and insurers, and to foster competition and availability of health care providers in all areas of the country. The second purpose is to examine actions available to the Georgia legislature by (1) examining how noneconomic damage

medical malpractice field of legislation as it has generally been a question for the states).

12. See Palmer, supra note 4.

13. Palmer, supra note 4. Plaintiff's lawyers in general have applauded rulings striking down caps on noneconomic damages. For example, after Illinois struck down a similar statute, the Illinois Trial Lawyers Associations said, "the health-care crisis can not [sic] be solved by further hurting the patients who are victims of medical errors." Nathan Koppel, Illinois Supreme Court Tosses Malpractice Award Curbs, Wall St. J. (Feb. 4, 2010, 7:13 PM), http://online.wsj.com/article/SB10001424052748703357104575045624066646704.html. Additionally, opponents to caps on noneconomic damages believe the damages do not adequately deter wrongful conduct, that jury awards are not excessive, and that damage caps will not actually reduce medical malpractice insurance costs. F. Patrick Hubbard, The Nature and Impact of the "Tort Reform" Movement, 35 Hofstra L. Rev. 437, 494-95 (2006) (discussing pros and cons of caps on noneconomic damage).

14. Palmer, supra note 4 (citing to statistics provided by MAG Mutual Insurance Co. that state, "medical liability insurance costs are down 18 percent" since 2005 and a study performed by the Carl Vinson Institute of Government at the University of Georgia that states there are "about 1,000 more physicians in Georgia since the tort reform law passed in 2005").

15. Hannah Yi...