April 21, 2010

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Medical Malpractice

Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt et al (Ga. 2010)

HOLDING

O.C.G.A. § 51-13-1, which limits awards of noneconomic damages in medical malpractice cases to a predetermined amount, violates the Georgia Constitution’s guarantee of a trial by jury. Chief Justice Hunstein delivered the opinion of the Court, Justice Melton concurred with the majority except to the retroactive application of the ruling, and Justice Nahmias issued a special concurrence, in which Presiding Justice Carley and Justice Hines joined, agreeing that the ruling should be applied retroactively but disapproving of the majority’s reasoning.

O.C.G.A. § 51-13-1
O.C.G.A. § 51-13-1 establishes a cap on noneconomic damages in medical malpractice claims at $350,000(1). O.C.G.A. § 51-13-1 (a) (4).defines noneconomic damages as damages for physical and emotional pain, discomfort, anxiety, hardship, distress, suffering, inconvenience, physical impairment, mental anguish, disfigurement, loss of enjoyment of life, loss of society and companionship, loss of consortium, injury to reputation, and all other nonpecuniary losses of any kind or nature.

The statute was originally enacted as part of the Tort Reform Act of 2005 to address what the General Assembly determined to be a “crisis affecting the provision and quality of health care services in this state.” Ga. L. 2005, p. 1, § 1. The caps were meant to address the rising cost of medical liability insurance and the effect that cost had on Georgia citizens’ ability to obtain quality health care.

FACTS
Harvey P. Cole, M.D., of Atlanta Oculoplastic Surgery (“Oculus”), performed CO2 laser resurfacing and a full facelift on Appellee Betty Nestlehutt which resulted in Nestlehutt’s permanent disfigurement. Nestlehutt and her husband sued Oculus for medical malpractice. After an initial mistrial, the jury returned a verdict of $1,265,000, comprised of $115,000 for past and future medical expenses; $900,000 in noneconomic damages for Ms. Nestlehutt’s pain and suffering; and $250,000 for Mr. Nestlehutt’s loss of consortium. The Nestlehutts then moved to have O.C.G.A. § 51-13-1, which would have reduced the jury’s noneconomic damages award by $800,000(2) to the statutory cap of $350,000, declared unconstitutional. The trial court granted the motion holding that O.C.G.A. § 51-13-1 violates the Georgia Constitution by encroaching on the right to a jury trial, the governmental separation of powers, and the right to equal protection. The trial court then entered judgment for Nestlehutt in the full amount awarded by the jury. This appeal followed.

DISCUSSION
A. Analysis of Georgia’s Constitutional Right to Trial by Jury
The Court first examined the trial court’s holding that the cap on noneconomic damages violates the Georgia Constitution’s guarantee of the right to trial by jury. Article I, Section I, Paragraph XI of The Georgia Constitution states, “[T]he right to trial by jury shall remain inviolate.” Medical malpractice claims are “encompassed within the right to jury trial under Art. I, Sec. I, Par. XI.” Furthermore, as with all torts, the determination of damages rests peculiarly within the province of the jury because the amount of damages sustained by a plaintiff is ordinarily a question of fact. Therefore, the right to a jury trial guaranteed by the Georgia Constitution includes the right to have a jury determine the amount of damages.

Noneconomic damages have long been recognized as an element of total damages in tort cases, including those involving medical malpractice. Therefore, there is a right to a jury trial for claims involving the negligence of a health care provider, with an attendant right to the award of the full measure of damages, including noneconomic damages, as determined by the jury.

O.C.G.A. § 51-13-1 clearly nullifies the jury’s findings of fact regarding damages and thereby undermines the jury’s basic function by reducing the award to the statutory limit of $350,000. Therefore, O.C.G.A. § 51-31-1 infringes upon a party’s constitutional right to a trial by jury (3). “The very existence of the caps, in any amount, is violative of the right to trial by jury.”

B. Retroactive Application of the Ruling
The general rule is that an unconstitutional statute is wholly void and of no force and effect from the date it was enacted. However exceptions may be made to this general rule where, because of the nature of the statute and its previous application, unjust results would accrue to those who justifiably relied on it. This determination takes three factors into account: (1) Whether the decision in question established a new principle of law, either by overruling past precedent or deciding an issue of first impression, the resolution of which was not clearly foreshadowed; (2) Whether retroactive application would further or retard the operation of the rule in question; and (3) Whether retroactive application would result in substantial inequitable results.

Here, the Court brushes off the first two factors and turns to the third and concludes that the retroactive application of the ruling would not have substantial inequitable results. The record did not support Appellant Oculus’ claim that its litigation strategy would have been different had it known that the caps were invalid. Also, the caps had no impact on the determination of liability, evidentiary rulings, arguments of counsel, or jury instructions since they were only applied after the jury reached its verdict. The Court also strikes down an argument from Appellant Oculus that it would have been more likely to settle had it known the caps were invalid. The Court concluded that such reliance was too speculative to cause “substantial inequitable results.”

(1) Relevant to this case, O.C.G.A. § 51-13-1 reads,
In any verdict returned of 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.
(2)Under O.C.G.A. § 51-13-1(a) (4), loss of consortium is considered noneconomic. Therefore, noneconomic damages awarded by the jury totaled $1,150,000 for purposes of applying the statutory cap.
(3) The Court cites several other states who have come to similar conclusions: Moore v. Mobile Infirmary Ass’n., 592 So2d 156 (Ala. 1991); Sofie v. Fibreboard Corp., 771 P2d 711 (III) (Wash. 1989); Smith v. Department of Insurance, 507 So2d 1080 (II) (Fla. 1987).

If you have any questions regarding the opinion or have a case that you would like for us to help you evaluate, please contact J. Benjamin Finley, Christopher Reeves or Kindu Walker at 404-320-9979. We are always happy to help.

Seminars

As a value-added service to our clients, we provide free in-house CE courses.  We have the following courses approved:

Ethics

Ethics 1 hour
Ethics-BINGO 1 hour
Top 3 Ethical Challenges & How to Avoid Them 1 hour
 

Liability
Coverage Issues for Emerging Environmental & Toxic Tort Claims 1 hour
Medicare, Medicaid & SCHIP Extension Act of 2007 1 hour
Streamlining Discovery in Civil Litigation 1 hour
Updates in Liability Claims 1 hour
 

Workers’ Compensation
Advanced Workers’ Comp Strategies 1hour
Avoiding Penalties 1 hour
Georgia WC Updates 1 hour
The Importance & Criteria of State Board Forms & Panel of Physicians 4 hours

Other

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Getting the Most Out of Your Evidence 1 hour
BINGO 1 hour
Mediation, Arbitration or Trial…Which is best for you? 1 hour
Claims Handling/Exposure: Jeopardy 1 hour

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