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Posted by Susan J. Levy

In yet another blow to the healthcare industry, Judge Diane Bessen issued an Order on February 9, 2009, striking down Georgia’s caps on noneconomic damages (pain and suffering) in medical malpractice cases. Nestlehutt v. Atlanta Oculoplastic Surgery, P.C., d/b/a Oculus, Fulton County State Court, Civil Action File No. 2007EV002223-J.

In 2005, the Georgia General Assembly enacted O.C.G.A. § 51-13-1 in an effort to curtail the soaring costs of healthcare and to improve the quality of healthcare services in Georgia. See generally Senate Bill 3, Ga. L. 2005, p. 1, §1. O.C.G.A. § 51-13-1 provides, in pertinent part, that:

In any verdict returned or judgment entered in a medical malpractice action, including an action for wrongful death, against one or more health care providers, the total amount recoverable by a claimant for noneconomic damages in such action shall be limited to an amount not to exceed $350,000.00, regardless of the number of defendant health care providers against whom the claim is asserted or the number of separate causes of action on which the claim is based.

In a lengthy order, Judge Bessen found the statute unconstitutional on three grounds:

(1) “[I]t invades the right to a jury trial” guaranteed by the Georgia Constitution “by usurping one of the fact-finding responsibilities of the jury;”
(2) The statute violates the Separation of Powers Doctrine by “encroach[ing] upon the judiciary’s constitutional right and prerogative to determine whether a jury’s assessment of damages is either too excessive or too inadequate within the meaning of the law;” and (3) [I]t violates the Equal Protection Clause of the Georgia Constitution by differentially and dramatically impacting those most seriously injured, low-income individuals.

Predictably, Judge Bessen’s Order is being hailed by the plaintiff’s bar and denounced by the governor, Georgia Legislature, and those of us that defend physicians and hospitals. While a disappointing result for healthcare providers across the State, Judge Bessen’s Order will not be the definitive word on the constitutionality of damage caps. Most likely, the issue will soon land in the Georgia Supreme Court, where some predict a very different result.