“The very existence of the caps, in any amount, is violative of the right to trial by jury,” wrote Chief Justice Carol Hunstein. “[The cap] clearly nullifies the jury’s findings of fact regarding damages and thereby undermines the jury’s basic function.”

The ruling effectively struck down the centerpiece of Georgia’s sweeping 2005 tort reform law, Senate Bill 3, which capped noneconomic awards – including those for pain and suffering – at $350,000.

At the time SB 3 passed, supporters said it would reduce medical malpractice insurance premiums and attract doctors from across the country. However, between 2005 and 2008, premiums fell only 7 percent and the number of physicians per capita remained essentially the same.

“In simplest terms, SB 3 limited accountability for medical negligence and padded the profit margins of large insurers,” said Georgia Watch executive director Angela Speir Phelps. “This ruling stops the government from trampling on the rights of malpractice victims and our citizen juries.”

The court’s decision upholds a $1.265 million jury award to Betty Nestlehutt, a Marietta real estate agent. Nestlehutt, now 75, was left permanently disfigured after a plastic surgeon with Atlanta Oculoplastic Surgery botched what should have been a routine face-lift procedure. Nestlehutt was so severely injured that her lawyer, Adam Malone, said she had trouble leaving her house.

Nestlehutt was awarded $900,000 for pain and suffering by a Fulton County jury. Atlanta Oculoplastic Surgery appealed that amount on grounds that it violated SB 3. The trial judge sided with the jury award and declared the $350,000 cap unconstitutional, setting the stage for the high court ruling.

Georgia Watch deputy director Danny Orrock says the Supreme Court decision protects patients and their constitutional rights.

“It restores the promise of justice for all and the rights of all Georgians – young and old, rich and poor – to access the courts,” says Orrock.

The Nestlehutt decision likely means legislators will renew efforts to impose restrictions on malpractice victims. Lawmakers are already discussing the possibility of a constitutional amendment addressing caps on damages, similar to one Texas passed in 2003.

In any case, much of SB 3 remains intact. The Supreme Court has recently upheld two key provisions of the law. The first makes it nearly impossible for patients to recover damages in cases involving emergency room care by requiring that no physician or health care provider shall be held liable unless it is proven by clear and convincing evidence that the physician or health care provider’s actions showed gross negligence. The second forces the losing side in a lawsuit to pay the other side’s legal fees, a practice that can discourage victims from bringing legitimate claims to court.

Georgia Watch remains strongly opposed to any legislation that impedes access to the courts, including measures that limit the amount an attorney can collect from a settlement.

We remain firmly committed to protecting malpractice victims and fighting for greater access to the courts.

Nestlehutt v. Atlanta Oculoplastic Surgery, P.C, from Fulton County State Court, highlighted how caps on damages fundamentally restrict the constitutional rights of those who have been harmed by a healthcare provider. The malpractice case was brought by plaintiff Betty Nestlehutt, who is represented by attorneys Adam Malone and Frank Ilardi.

Betty Nestlehutt and her husband of more than 50 years worked together in their real estate business. Betty handled most of the client interaction for the firm, and she eventually noticed that many potential customers were going to younger agents. Concerned with the bags under her eyes and lines around her mouth, Betty Nestlehutt eventually decided to schedule a consultation with Dr. Harvey P. Cole of Atlanta Oculoplastic Surgery, P.C. Even though Betty was 71 at the time, Dr. Cole recommended a full facelift as well as a battery of other surgical procedures.

The combination of procedures was risky for someone of Betty’s age. The surgery severely impacted the blood flow to her face. After several weeks, the skin on Betty Nestlehutt’s face began to die and fall off.

“Betty Nestlehutt was the face of her real estate business,” Malone said. “Her face was so horrifically disfigured that she was no longer able to even leave her house. The pain she experienced over a long period of time is difficult to comprehend. Photographs of her disfigurement are too gruesome for public distribution. The damage is permanent.”

The case was heard in Fulton State Court before a jury of 12 citizens. After hearing the testimony and seeing the evidence, they returned a verdict in favor of the Nestlehutts. The jury granted recovery for past and future medical expenses and concluded that the severe impact to Betty Nestlehutt’s quality of life warranted $900,000 in “non-economic” damages. However, this was more than the $350,000 cap on noneconomic damages in the 2005 law, which overrides the judgment of a jury that has been presented with the facts.

Judge Diane Bessen ruled that the statute capping a jury’s verdict was unconstitutional. The decision was appealed by the defendants to the Georgia Supreme Court. After hearing arguments in the fall of 2009, the Supreme Court agreed with Judge Bessen and ruled the statute unconstitutional.

“We applaud the Justices on our Supreme Court and their decision which appropriately concluded that a one-size-fits-all predetermined cap on damages violates protections guaranteed by the Georgia Constitution,” said Danny Orrock, Deputy Director of Georgia Watch. “The decision favors the protection of patients and their constitutional rights. It restores the promise of justice for all and the rights of all Georgians — young and old, rich and poor — to access the courts. These are guarantees set forth by our Constitution that were stripped away in 2005.”

Georgia Watch is keeping a keen eye on Atlanta Oculoplastic Surgery, P.C. v. Betty & Bruce Nestlehutt at the State Supreme Court that is challenging the cap on non-economic damages in the 2005 tort reform law. Non-economic damages are appropriate in cases where the jury wishes to compensate the injured party for harm that goes beyond lost wages or work opportunities. Pain and suffering, loss of normal marital relations (consortium), and physical injury or disfigurement are all non-monetary losses that fit in this category. Not surprisingly, amounts of non-economic damages can vary widely among cases and jurisdictions.

The Nestlehutt case involves a 71 year-old woman who sought the services of a plastic surgeon. Having discussed a range of procedures with Mrs. Nestlehutt, the doctor recommended that she undergo both a full facelift and laser resurfacing simultaneously despite the significant risks that this posed to a patient of her age. Serious problems soon arose. The two procedures drastically reduced the blood flow to Mrs. Nestlehutt’s face, and her skin was severely damaged. Tragically, the ordeal left her permanently disfigured.

The jury returned a verdict in favor of the Nestlehutts in the total amount of $1,265,000, most of which constituted non-economic damages: $900,000 for Mrs. Nestlehutt’s pain and suffering and $250,000 for Mr. Nestlehutt’s loss of consortium. The defendant Oculus contended that this was a misapplication of Georgia law and that the total amount of the Nestlehutts’ non-economic damages should be capped at $350,000, thus resulting in a total judgment of $465,000. The trial court refused this interpretation and struck the law down as unconstitutional. The defendant Oculus then appealed to the Supreme Court of Georgia.

Georgia Watch submitted an amicus brief in this case arguing that the law violates the prohibition in the Georgia constitution against “special laws” that grants status or privilege specifically to a favored group (such as healthcare providers). We have consistently been opposed to caps because this law favors certain groups over others. People who have a higher wage-earning potential – such as lawyers, doctors, and business executives – stand to receive a considerably higher amount of total damages than someone with a smaller income. Caps mean that the life or well-being of a person who is retired or whose work does not earn a salary, such as a homemaker, will be valued considerably less by a court.

Beyond placing a value on human life, Georgia’s caps provision bars access to the courthouse for some individuals. If a person cannot find a lawyer willing to take a case which will be arbitrarily capped by law, then they have effectively been shut out of the civil justice system. This amounts to a violation of the Seventh Amendment in the Bill of Rights, which guarantees every citizen a right to trial by jury for civil disputes over $20.

Georgia Watch will continue to fight for the patient who has been injured or killed through no fault of their own. Please stay tuned to Georgia Watch and our Court Watch program for info on how the Nestlehutt decision impacts your family.

Senate Bill 3 limits what a jury can compensate any victim injured as the result of medical malpractice for physical loss and disability to $350,000 – even if the negligence kills a loved one. This one-size-fits-all approach brutally affects retirees, veterans, stay-at-home parents and anyone else who does not work or works for modest pay.

The controversial bill also takes away the rights of patients injured or killed in any of Georgia’s emergency rooms because of clear negligence. The ER immunity provision of the law requires patients to prove “gross negligence,” which means proving that their medical provider willfully and knowingly mistreated them. This is virtually impossible to prove in an emergency setting, after the fact.

What’s more, the law contains several smaller provisions that have combined to make it almost impossible for victims of medical malpractice to find justice in a courtroom. But since the law was signed in 2005, several of those smaller provisions have been struck down as a violation of Georgia citizens’ constitutional rights, or are awaiting a ruling from a higher court. Georgian’s whose cases actually make it to the courtroom may only seek compensation for “non-economic damages”.

Non-economic damages are those which cannot be easily calculated, but are recognized by the courts as having value. Among the considerations for non-economic damage awards are the plaintiff’s pain and suffering, disfigurement, loss of enjoyment of life and other intangible harms. Hospitals and medical associations argue that restrictions, or “caps”, on damages are necessary to help control their insurance premiums, which makes healthcare more affordable for all. They also assert that the caps encourage more doctors to practice in some states, which improves the overall healthcare offered in that region.

However, it is important to note that not only does the statute place a cap on how much a medical facility or physician may be required to pay in non-economic damages, it also places a cap on the amount which a plaintiff may receive. There are different caps on damages for suits involving just one facility and those involving multiple facilities. Thus, even if a patient has been the unfortunate victim of a malpractice incident that resulted in untold pain and suffering, she may receive up to only $700,000 in non-economic damages as a plaintiff, regardless of how many different medical facilities may be responsible for her injuries, or even how severe those injuries may be.

However, in April 2008, Fulton County court judge Marvin S. Arrington Sr. overturned the damages cap on constitutional grounds. The case in which the statute was successfully challenged involved Cheon Park, a 59 year old restaurant owner who fell from a ladder at his home in 2006. An ambulance took Park to WellStar Douglas Hospital where he complained of pain in his neck, arm, shoulder and pelvis. Park was x-rayed, treated for a dislocated shoulder and discharged that same day. He was still in severe pain when he left the hospital; so much so that he required the help of hospital staff and his family to help him into his automobile.

Park’s pain grew worse, and he began exhibiting symptoms consistent with neurological damage. He was taken to Grady Hospital three days later where x-rays showed that the damage incurred by Park was much more than a dislocated shoulder. In fact, Park’s spine was so badly damaged that he is now a quadriplegic, with no use of his legs and only limited use of his arms.

Judge Arrington’s order of the court noted that the statute did not satisfy the guarantee of equal protection under either the Georgia or Federal Constitution. Equal protection guarantees that government will treat all similarly situated people the same. Judge Arrington wrote, “Persons suffering the exact same personal injuries at the hands of other tortfeasors—including other professionals—are not subject to such caps.” Thus, the government is treating certain civil litigants differently based solely upon the type of claim they file. Such an act runs afoul of the Georgia constitution.

Judge Arrington attacked the law on another ground, as well: a plaintiff’s right to a jury trial. Juries are considered an essential component of the judiciary. As such, the ruling of a jury is given great deference. This is especially so in tort law, where juries are asked to determine both liability and damages. The Act’s evasion of this constitutional principle was also noted by Arrington: “[A] fundamental right is involved in this case if for no other reason than the fact that the jury’s authority to award the amount of damages that it concludes to be appropriate for non-economic injury is limited by the caps.”

The principle of separation of powers, though seemingly unaddressed by Judge Arrington, has also been used to strike down caps on non-economic damages in other states. Where any one branch of government invades the province of another, that invasion is considered to be a breach of the separation of powers doctrine. Such a breach runs afoul of both the Georgia and Federal Constitution. For example, the Illinois Supreme Court held unconstitutional a cap of $500,000 for non-economic damages in medical malpractice cases on the basis that the legislature substituted its judgment for that of the jury and the courts. A similar comparison may be made to Georgia’s cap on non-economic damages.

The case, Park v. WellStar, No. 2007CV135208, may be appealed to the Georgia Supreme Court.

While the courts are cutting out the unconstitutional parts of SB 3, some groups are working hard to protect the law. In a recent article on election tampering, the Atlanta Journal-Constitution reported that, “The Safety and Prosperity Coalition, according to its Web site, was formed largely to guard Georgia’s 2005 tort reform, limiting liability for businesses when they are sued, from erosion in the courts. The group, which could channel unlimited funds into television ads and other efforts to influence voters … had raised a reported $318,500 by the end of September. Last week, it began airing its first ad … on network TV.”

If you thought the fight over tort reform in Georgia ended with the passage of Senate Bill 3, think again. In many ways, it has just begun.

Cowsert is a floor leader for Gov. Perdue, who has claimed that SB 101 would help attract pharmaceutical companies to Georgia and create new job opportunities.

“This bill lets drug companies off the hook, plain and simple, even if the product hurts or kills someone” said Georgia Watch executive director Allison Wall. “Georgians would have no recourse, no hope of accountability, period.”

The only state to implement this type of legislation is Michigan, whose unemployment rates were the highest in the nation at the beginning of 2009. According to some Michigan lawmakers, pharmaceutical companies have actually moved out of the state since the passage of their drug immunity law in 1995.

“This bill was touted in Michigan as a job creator,” said John LaMacchia, aide to Sen. John Gleason (D-Lansing). “However, since its enactment, the presence of pharmaceutical companies has shrunk. The large Pfizer facility in Ann Arbor down-sized and no new companies are moving in,” he said. Gov

Not only have 2,100 jobs been lost after the Pfizer plant in Ann Arbor closed, but 250 more were lost when the company’s plant in Kalamazoo down-sized. It’s unclear to me why Pfizer is leaving MI – but what is apparent is that pharmaceutical companies don’t let lawsuit immunity dictate their operations and therefore SB 101 will probably not encourage Big Pharma to move to Georgia.

In recent years, Vioxx, fen-phen and Bextra, among other FDA-approved drugs, were recalled after harming or killing patients. Before being removed from shelves in 2004, Vioxx injured at least 139,000 people.

“Essentially, this is a desperate bid for new biotech business at the expense of our legal rights,” said Wall. “That’s a dangerous gamble for the Governor, risking the health and safety of Georgians against the interests of corporations.”