April 7, 2010
The State Constitutionality of Med Mal Damage Caps
The Georgia Supreme Court last month in Atlanta Oculoplastic Surgery v. Nestlehutt overturned the state medical malpractice noneconomic damage cap provision under the state constitutional right to trial by jury. The provision limited noneconomic damages to $350,000.00, but the jury in the case awarded plaintiffs $900,000.00 for pain and suffering and another $250,000.00 for loss of consortium (in addition to $115,000.00 in economic damages for medical expenses). Defendants challenged the award under the damage cap, but the court overturned the cap and ruled for the plaintiffs.
The court ruled that "at the time of the adoption of our Constitution in 1798, there did exist in the common law 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." (Slip Op. at 9-10.) The damage cap violates this right, the court wrote, because it "clearly nullifies the jury's findings of fact regarding damages and thereby undermines the jury's basic function." (Slip Op. at 10.)
The ruling puts Georgia at odds with a half-dozen other states in which noneconomic damage caps have been upheld against state constitutional jury trial claims. The Georgia court distinguished those rulings, however, writing that those states had less comprehensive constitutional jury trial provisions or that the courts in those states employed "unpersuasive reasoning reaching the opposite result." (Slip Op. at 15, n. 8.)
The ruling may be a warning to those who advocate "tort reform" in medical malpractice: State constitutional rights and values may create a barrier to damage caps. Here, the state constitutional right was to a jury trial, but the plaintiff also raised plausible state constitutional claims under separation-of-powers principles and equal protection. (The court declined to address those claims, because it overturned the statute under the right to a jury trial.) In other states, plaintiffs have challenged damage caps under state constitutional "open courts" provisions, which derive from the Magna Carta and guarantee that courts will be open, free, and available. (See my article here for more on open courts and equal access to justice.) Success has been spotty under these theories in the several states, but together these cases and state constitutional provisions offer a healthy reminder that access to the courts, with all that that entails, stands as an important countervailing state constitutional value against tort reform.
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Nice blog; hadn't seen it before.
With 12 states having upheld "caps", that's a bit more than half a dozen. Other than primarily jury trial and also equal protection or separation of powers, I'm not aware of a holding of unconstitutionality of a "cap" has ever involved an open court or access to courts provision, which is not "spotty success" but "lack of success".
Posted by: Gerald Neely | Apr 9, 2010 11:05:26 AM
Good point; "spotty success" is, indeed, optimistic. But check out Lucas v. U.S., 757 S.W.2d 687 (Tx. 1988), a case in which the Fifth Circuit certified the question to the Texas Supreme Court, and the court ruled that the state's damage cap provision violated its state constitutional open courts provision.
Posted by: Steven D. Schwinn | Apr 9, 2010 9:14:49 PM
Good point yourself. With the Lucas case being a "cap" on all damages, economic and non-economic, I would squirm out of the matter by indicating that your comments on "caps" pertained to non-economic damage caps and that no "cap" on non-economic damages has ever been stricken by the highest court of a state on grounds of an open courts or access to the courts provision
Posted by: Gerald Neely | Apr 12, 2010 2:38:31 PM
Good point right back at you. Let me try again: Check out Smith v. Department of Insurance, 506 So.2d 1080 (Fla. 1987) (overturning the state cap on noneconomic damages under the state constitutional open courts provision). Still not "spotty success," but perhaps at least a case?
Posted by: Steven D. Schwinn | Apr 12, 2010 4:35:58 PM