following Illinois, tort reformers lose big in Georgia

The state Supreme Court of Georgia has unanimously ruled that a 2005 tort reform law imposing a $350,000 cap upon noneconomic damage awards—damages including a plaintiff’s pain and suffering—in medical malpractice cases is unconstitutional. The cap was framed as the “cornerstone of the state’s sweeping 2005 tort reform law.”

A court that is hardly deemed liberal upheld only last week in a 4-3 decision, another key provision of the Georgia 2005 law that makes it virtually impossible for patients to recover damages in malpractice cases connected to emergency room care. But the court determined that the cap violated a plaintiff’s right to a jury trial and its main function in the finding of facts, a right pre-dating the Georgia 1798 state constitution.

“The very existence of the caps, in any amount, is violative of the right to trial by jury.”Chief Justice Carol Hunstein


It opposes the very function of the litigation to—via a cap—pre-determine the maximum damage outcome independent of the facts of the case, alongside a supposedly deliberating jury whose very function is to fact find and assess the damages.

As always the case upon which the court’s decision is based is a horrendous one, and one that already met the high and onerous plaintiff burden of proof and threshold of negligence under our existing body of tort-deterring medical malpractice law. The $350,000 figure is arbitrary, has no economic relevance to the facts of the case, to the damage recovery by the plaintiff or to the broader legal concern in the procured health product in the incentivised practice of medicine.

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