Georgia high court considers tort reform law

By Bill Rankin

The Atlanta Journal-Constitution

Betty Nestlehutt didn’t like the bags under her eyes or the lines around her mouth. So she went to an Atlanta plastic surgeon for a facelift.

Weeks after surgery, her skin began to die because the medical procedures cut off the flow of blood to her face. Gaping wounds opened from her temples to her chin. After extended treatment, the real estate agent was left permanently disfigured.

The 75-year-old Marietta woman’s case is now before the Georgia Supreme Court, which on Tuesday considered for the first time the constitutionality of the centerpiece of the state’s sweeping 2005 tort reform law — caps on jury awards in medical malpractice cases.

A lawyer for the surgeon’s practice told the court that the Legislature properly imposed the caps to keep doctors from leaving the state in droves because their malpractice insurance premiums were too high. Nestlehutt’s lawyer countered that the law punishes those who suffer the greatest malpractice injuries to the benefit of those who caused the most harm.

After a trial, a Fulton County jury awarded Nestlehutt $115,000 for past and future medical expenses and $1.15 million in noneconomic damages, including $900,000 for her pain and suffering. The judgment was against Atlanta Oculoplastic Surgery, which is owned by Harvey “Chip” Cole, who performed Nestlehutt’s procedures.

Georgia’s tort reform law, championed by the heath care and insurance industries, caps noneconomic damage awards at $350,000. For this reason, the award should be reduced to $465,000 — $115,000 for medical expenses and the $350,000 cap, Atlanta Oculoplastic’s lawyers argued after the verdict.

But Fulton State Court Judge Diane Bessen declared the cap unconstitutional. It violates the state Constitution’s guarantee to a trial by jury, separation of powers and equal protection, she said in a Feb. 9 order. She acknowledged her decision was “charged with significant ramifications.”

On Tuesday, the state Supreme Court considered whether to uphold or reverse Beseen’s ruling.

Atlanta Oculoplastic’s lawyer, Jonathan Peters, noted that in prior rulings the court upheld limitations on jury awards. In 1993, for example, the court ruled the Legislature could limit the amount of punitive damage awards collected by plaintiffs in product liability cases, he said.

“The Legislature has the right to modify jury trial issues and procedures,” Peters said.

But Chief Justice Carol Hunstein wondered if legislators had turned the right to trial by jury into a “hollow right” by capping awards. “No matter what [the jurors] state in their verdict, the plaintiff can’t collect” the entire noneconomic damage award if it is more than $350,000, she said.

“If I were a plaintiff, I’d feel that way,” Peters responded. “But it’s far from a hollow right.”

The Legislature was trying to keep doctors from leaving the state by making malpractice cases more predictable.

But Justice George Carley wondered about the ramifications if the court upholds the caps on damages. He asked, could the Legislature next eliminate all noneconomic damage awards?

The court’s newest justice, David Nahmias, asked the most questions. He noted that Georgia courts have previously upheld limitations on jury awards in no-fault insurance and workers’ compensation cases. He also wondered if the Legislature could cap damage awards, couldn’t it also enact a floor for damages awards — such as mandating awards be at least $350,000 — if lawmakers found a need for it?

Michael Terry, Nestlehutt’s lawyer, said claims that the state’s health care industry was in a crisis were unfounded and he called the caps irrational. The law is saying, “We can’t afford full justice,” he said. “We can’t afford full compensation for our most injured victims. We know that’s not right.”