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State Supreme Court Strikes Down Medical Malpractice Cap

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   March 23, 2010

Georgia's $350,000 cap for pain and suffering damage in medical malpractice claims, similar to a template proposed for the nation, was struck down Monday by the Georgia Supreme Court, which unanimously ruled the cap is unconstitutional.

With a 7-0 vote, the court said the "non-economic damages" cap violates a citizen's constitutional right to a trial by jury.

The Georgia Legislature approved the cap in 2005 in an effort to reduce medical malpractice insurance premium costs, saying it threatened the ability of Georgia citizens to get care from their doctors.

The Georgia court's decision stemmed from a lawsuit brought by Betty Nestlehutt, 71, and her husband against a plastic surgeon in Atlanta. The plaintiff in January 2006 sought help from surgeon Harvey "Chip" Cole, MD, to remove bags under her eyes and lines around her mouth, according to documents filed in the case.

Cole performed a facelift and carbon dioxide labor resurfacing, but Nestlehutt developed a rash and open wounds on her cheeks and temples and permanent scarring, according to her complaint.

Nestlehutt and her husband sued Cole and his practice, called Oculus, for negligence.

A jury awarded them $1.265 million, far in excess of the $350,000 that state law allows for claims against one or more medical practitioners, and in excess of the $1.05 million for claims against multiple practitioners and medical facilities. The Nestlehutts filed a motion to declare the state cap unconstitutional, and in 2009, a trial court did so and awarded the plaintiffs the full amount.

"The Georgia Constitution states plainly that ‘[t]he right to trial by jury shall remain inviolate,'" said the Supreme Court's 22-page opinion. The right to a trial by jury "includes the right to have a jury determine the amount of … damages, if any, awarded to the [plaintiff]."

The Georgia cap on pain and suffering is similar to one in California, which limits non-economic damage awards to $250,000. That 1975 law, called the Medical Injury Compensation Reform Act or MICRA, is said by physician groups to have increased patient access to healthcare providers who otherwise would be unable to afford malpractice insurance and would limit their practices.

It also has kept medical malpractice premium rates in California low, and assures that patients receive the bulk of settlements and awards, according to physician groups that support it.

Pain and suffering caps have been proposed by numerous medical and other groups as possible ways to reduce the number of expensive, unnecessary tests performed on patients by physicians and hospitals practicing "defensive medicine."

The perceived success of MICRA and similar cap programs in other states like Georgia were proposed as demonstration projects in the health reform debate.

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