Earlier today, an attorney representing a woman who suffered a botched facelift told the Georgia Supreme Court that the state’s cap on pain and suffering awards in medical malpractice lawsuits violates the right to a jury trial, according to the Atlanta Business Chronicle.
“For 200 years, it’s been the exclusive province of the jury to set damages,” attorney Michael Terry told the Supreme Court as he challenged a law that the Georgia General Assembly passed in 2005 which caps non-economic damages in medical malpractices cases to $350,000.
Georgia lawmakers (and lawmakers in other states) have placed restrictions on jury awards in an effort to reduce rising medical malpractice insurance premiums for doctors. According to the Georgia law, Senate Bill 3, if your child were killed by medical malpractice, the maximum you could recover would be $350,000.
Even though the law caps pain and suffering damages at $350,000, in 2007 a Fulton County jury awarded $1,265,000, including $900,000 in non-economic damages, to Betty Nestlehutt, age 71, after a botched facelift left her with permanent scars.
“Betty Nestlehutt was the face of her real estate business,” said attorney Adam Malone in a press release from the Georgia Trial Lawyers Association. “Her face was so horrifically disfigured that she was no longer able to even leave her house. Photographs of her disfigurement are even too gruesome for public distribution. The damage is permanent. Years later she has to wear layers of special makeup to try to give the appearance of normalcy.”
Last February, Nestlehutt filed a motion to lift the medical malpractice cap, and Fulton County Judge Dianne Bessen ruled that the state law is unconstitutional.
“Judge Bessen’s order appropriately concluded that a one-size fits all predetermined cap on damages violates several protections guaranteed by the Georgia Constitution,” said Malone. “Her order balances the rights of all Georgians, young and old, rich and poor, and restores the guarantees set forth by our Constitution that were stripped away in 2005.”
The defendant, Atlanta Oculoplastic Surgery, appealed this decision to the Georgia Supreme Court.
Earlier today, Nestlehutt’s attorney Terry argued that the tort reform law is an attempt to ration justice at the expense of injured patients.
“They said they wanted to fix health care,” Terry said, “but they put the entire burden upon the backs and shoulders of those people who are most injured.”
Jonathan Peters, the attorney representing Atlanta Oculoplastic Surgery, argued that other court decisions have given the General Assembly the authority to pass laws that replace jury trials with other legal remedies in some circumstances. Peters also argued that the tort reform law was necessary because Georgia doctors were leaving and going to other states where medical malpractice insurance premiums were lower: “It kept physicians in the state. It is a restriction, certainly, but it’s a choice the legislature made.”
Chris Clark, president of the Georgia Trial Lawyers Association, has also commented on the case: “As a trial lawyer, I represent the person, who, through no fault of their own, has been injured—sometimes severely. They miss work, accrue medical bills and—often most important to them—they suffer a loss of the quality of life that they once had. Betty Nestlehutt’s severe disfigurement – which she had no part in creating – has diminished her quality of life and, in turn, her husband’s and her family’s. Judge Bessen’s order was fair, upheld our Constitution, and reflected the rule of law that has stood firm since the inception of this nation.”
By limiting a jury’s decision, Senate Bill 3 strips injured Georgians of their Seventh Amendment right to a jury trial. Let’s hope that the Georgia Supreme Court will rule against this unconstitutional law.
If you need a Georgia medical malpractice lawyer, contact MLN Law at 404-531-9700 to schedule a free consultation with an experienced attorney.