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Georgia Strikes Down Medical Malpractice Caps

Posted by Jane Akre
Tuesday, March 23, 2010 9:15 PM EST
Category: Major Medical
Tags: Tort Reform, Medical Malpractice, Nestlehutt, Plastic Surgery

the Georgia Supreme Court struck down caps for those injured by medical malpractice.


IMAGE SOURCE: We the People Video on YouTube by Georgia Watch

A Blow To Tort Reform

In Georgia, injured consumers have won a victory from the state Supreme Court.

On Monday, the court struck down a cap on what a jury can award for a catastrophic case of medical malpractice.

The previous cap of $350,000 on noneconomic damages, that is, pain and suffering, were the focus of Georgia’s tort reform law in 2005.

The case upheld the jury award given to 75-year-old Betty Nestlehutt after a botched face-lift.

She was awarded $1.265 million as compensation for her disastrous operation. Nestlehutt’s face was left with gaping wounds leaving her permanently disfigured. As a real estate agent in Marietta, Georgia, Nestlehutt could no longer leave home and conduct business.

At trial, she was awarded $115,000 for medical expenses and $1.15 million in noneconomic damages including $900,000 for pain and suffering. The doctors who perform the original surgery moved to have the award declared unconstitutional. Eventually, the Atlanta Oculoplastic Surgery appealed the case to the state Supreme Court.

Friends of the Court

In a departure from the support doctors generally lend one another, an Emory University surgeon stood up for Nestlehutt and testified that her doctor had violated the standard of care.

Friends of the court backing the doctor included insurance companies and for-profit health care, lining up against patient and consumer groups.

Instead of confirming the caps on jury awards, the Georgia Supreme Court cites the right to a jury trial in Georgia that predates the Georgia Constitution in 1798.

Because the high court finds this violates the Georgia Constitution, there can be no further appeal.

“The very existence of the caps, in any amount, is violative of the right to trial by jury” wrote Chief Justice Carol Hunstein. The decision caps any moves by the Georgia state legislature to impose new tort reform measures. Pro tort reform forces such as Senate Judiciary Committee chair Preston Smith (R-Rome) predicted “We have taken a step back. Our rates will be more expensive and less accessible.”

Insurance premiums have dropped in the five years since tort reform was enacted, according to MAG Mutual Insurance Co. that insures most doctors from medical malpractice lawsuits.

But a video on You Tube by the consumer group, Georgia Watch, reports that since 2005 when tort reform was imposed, Georgia physicians have not seen a reduction in their insurance premiums. The video shows the after pictures of Nestlehutt.

Still pending is the case of 62-year-old Caroline Palmer who lost her arms in a 2007 car accident. A botch IV at the hospital forced the amputation of her arms from the shoulder down. Today she is completely dependent on others. Her day in court is pending.

But the decision flies in the face of another by the Georgia Supreme court last week. In a 4-3 decision, the high court upheld a key provision of tort reform making it impossible for an injured patient to recover any damages in an instance of emergency room medical malpractice.

About two dozen states have caps on medical malpractice damage awards. Recently in Illinois, that states Supreme Court declared unconstitutional a $1 million cap against hospitals and a $500,000 cap against doctors. #

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