AGG Files Amicus Brief Urging Georgia Supreme Court to Uphold Wrongful Death Award Statutory Cap

On behalf of two of the state’s largest healthcare associations — the Georgia Hospital Association (“GHA”) and the Medical Association of Georgia (“MAG”) — AGG Healthcare attorneys Jason Bring, Jerad Rissler, and Lisa Churvis submitted an amicus (friend of  the court) brief to the Supreme Court of Georgia, urging the court to uphold Georgia’s statutory cap on medical malpractice wrongful death awards.

In 2005, the Georgia General Assembly became concerned with the deleterious effects of rampant litigation and runaway verdicts. It therefore placed a $350,000 cap on the noneconomic damages that can be recovered through medical malpractice injury and wrongful death claims. The damages caps were intended to address the General Assembly’s determination that a crisis existed in the medical liability insurance market, making it difficult for healthcare providers to buy affordable liability insurance. The damages caps, along with other provisions of O.C.G.A. § 51-13-1 (the “2005 Tort Reform Act”), were intended to promote predictability and improvement in the provision of quality healthcare services and the resolution of healthcare liability claims.

In 2010, however, the Supreme Court of Georgia struck down a portion of that statute as unconstitutionally infringing on the right to a jury trial for common law negligence claims for pain and suffering and loss of consortium. Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt (“Nestlehutt”), 286 Ga. 731 (2010). That case involved complications from a cosmetic facial surgery. A Fulton County jury determined that the surgery had led to permanent disfigurement and awarded a verdict of $1,265,000, including $1,150,000 in noneconomic damages for pain and suffering and loss of consortium. The trial court declared the $350,000 cap on noneconomic damages unconstitutional and, therefore, did not apply it.

On appeal, the Supreme Court of Georgia affirmed the trial court’s decision. It first determined that the Georgia Constitution’s guarantee of a jury trial applied only if, at the time of the adoption of the Georgia Constitution in 1798, there existed a right to jury trial as to both the claim and the measure of damages. Citing multiple historical sources and early colonial case law, the court determined that medical negligence claims were encompassed within the right to jury trial as established in 1798.  The court further determined that, because the determination of damages for common law medical negligence claims had historically rested within the province of the jury, the common law right to a jury trial for claims of medical negligence by a healthcare provider possessed an “attendant right to the award of the full measure of damages, including noneconomic damages as determined by the jury.” As such, because the noneconomic damages cap infringed upon the right to have a jury determine the full measure of a claimant’s damages,  the court found that the 2005 Tort Reform Act violated the Georgia Constitution’s right to a jury trial.

More recently, however, in Taylor v. Devereux Found., Inc., 316 Ga. 44 (2023), the Supreme Court of Georgia upheld Georgia’s separate cap on punitive damages, explaining that no claim for punitive damages existed when Georgia adopted its Constitution. Thus,  the court held, because the General Assembly created a claim for punitive damages in the first place, its placement of limitations on that claim did not violate the constitutional right to trial by jury.

Based on the rationale of Taylor and the limited scope of Nestlehutt, defendants in a recent medical malpractice case argued that the trial court must apply the statutory medical malpractice cap to reduce the wrongful death portion of the jury’s award. Like punitive damages claims (and unlike the common law claims at issue in Nestlehutt), wrongful death claims did not exist before Georgia’s Constitution of 1798, nor did juries determine wrongful death damages at that time. Instead, the General Assembly, by statute, created the wrongful death cause of action more than 50 years after the Constitution’s adoption. Despite this distinction, the trial court concluded that Nestlehutt had settled the matter. The defendants appealed to the Supreme Court of Georgia, and GHA and MAG urged the court to follow Taylor and apply the General Assembly’s medical malpractice caps to the wrongful death claims and damages that did not exist until decades after the adoption of the Georgia Constitution of 1798.

In their brief, GHA and MAG highlighted that the litigation crisis has only worsened since the General Assembly passed the 2005 Tort Reform Act. “Nuclear verdicts” — defined as jury verdicts of $10 million or more — are increasing in both amount and frequency. Per the Chamber of Commerce, six of 10 years of study data (from 2010 to 2019) showed that the total amount of noneconomic damages awarded in nuclear verdicts exceeded the total amount of economic damages and punitive damages combined. More recently, in August 2022, a DeKalb County State Court jury awarded a “nuclear verdict,” including a $55 million wrongful death award. This marked the biggest medical liability verdict in Georgia history. Runaway jury awards benefit very few but have broader healthcare ramifications that disadvantage many. This is especially true for noneconomic damages verdicts, like wrongful death awards, which involve no direct economic loss and have no precise value.

GHA and MAG argued that the Georgia General Assembly created a wrongful death claim and measure of damages that were previously unavailable to Georgia litigants. Just as the General Assembly was free to create a new action and measure of damages, it maintained the power to take them away. Or, as it did with the 2005 Tort Reform Act, to refine its creation to mitigate the negative effects to its constituents’ access to healthcare.

For more information on the appeal, please contact Jason, Jerad, or Lisa.