As a medical malpractice attorney practicing in Atlanta and north Georgia, I was very pleased to hear that the Georgia Supreme Court has struck down a Georgia Statute setting a $350,000.00 cap on pain and suffering damages in medical malpractice cases. In Atlanta Oculoplastic Surgery v. Nestlehutt, No. S09A1432, the court found the cap unconstitutional because it denies the citizens of Georgia the right to a trial by jury as allowed under the Georgia Constitution.
I had written in an earlier blog that I thought that medical malpractice victims would likely remain hampered by the pain and suffering cap even if it had been struck down by the Supreme Court. The reason I thought this was because it looked like the Georgia Legislature would likely to try to quickly amend this law to insure the cap remained in place if it was truck down. Because of the rational of the Supreme Court in making its decision, I know longer feel the cap will be a problem in the future.
Because the Court held the statute was unconstitutional because it denies citizens the right to a jury trial, I don't think there is anything the legislature or the Governor can do to make future legislation capping damages constitutional. The only way a cap could be reinstated is if the citizens of Georgia passed a constitutional amendment allowing such a cap. This won't happen in my opinion because it would require an amendment taking away each individuals right to a jury trial.
The Georgia legislature initially enacted the caps to curtail the filing of "frivolous" medical malpractice lawsuits. But in reality, because of the expense involved in prosecuting these types of claims, in my opinion, there has never been a need to curtail "frivolous" suits. It has always simply been too costly to file any medical malpractice lawsuit unless the claims were serious and pursuing damages for significant injuries. What the caps really did was curtail legitimate suits. It is a good day for the citizens of Georgia that they are no longer in place.
