The Georgia Supreme Court will soon Rule on Issues Crucial to Medical Malpractice Victims
As an Atlanta medical malpractice attorney practicing throughout north Georgia, I am always interested in keeping up on the latest changes in Georgia law that affects my practice. Today I read an article in the Fulton County Daily Report, a legal newspaper published throughout Georgia, which was very interesting to me. The article was about how the Supreme Court of Georgia is expected to rule soon on a key issue crucial to medical malpractice victims and the lawyers who represent them. The case, docketed to the September term, must be decided by the end of March.
Atlanta Oculoplastic Surgery v. Nestlehutt, No. S09A1432, involves the constitutionality of a $350,000 cap on pain and suffering damages in medical malpractice cases (which was part of comprehensive tort reform passed in 2005). Fulton County State Court Judge Diane E. Bessen struck down the caps on noneconomic damages, ruling that they violated the Georgia Constitution's guarantees of a right to trial by jury and to equal protection under the law. Judge Bessen further held that the caps infringed upon the separation of powers by interfering with the trial judge's usual role of forcing plaintiffs to choose between a reduced award and a new trial when a jury verdict is found by the court to be too high. The Georgia Supreme Court must now decide whether to keep the $350,000 pain and suffering cap in place, or to strike it down as unconstitutional.
Regardless of how the Georgia Supreme Court rules on this issue, medical malpractice victims are likely to remain hampered by the pain and suffering cap. This is because the Georgia Legislature is likely to try to quickly amend this law to insure that the cap remains in place if it is truck down by the Georgia Supreme Court.
As reported in the Fulton County Daily Report, Sen. John J. Wiles, R-Kennesaw, indicated that he would file legislation to respond to the Supreme Court if it overturns parts of the tort law. "As a strong supporter of tort reform in 2005, I would most certainly offer legislation to address any judicial decision adverse to the important provision contained in the current Georgia law that protects the citizens of Georgia," Wiles said in a statement. Senator Wiles and the Legislature could respond to the high court's rulings by simply passing new legislation, or a response may require amending the state constitution. It will depend on the legal grounds the justices use to find the legislation unconstitutional.
If the Georgia Supreme Court does strike down the pain and suffering cap for medical malpractice claims in Georgia, there may be a window of opportunity for injured malpractice victims to bring their cases while no restrictions on pain and suffering awards are in place. Competent legal representation for medial malpractice claims is essential. This is yet another example of just why that is.
