Kelly on Malpractice

I am sad to report that tort reform is going to pass and become law. Despite the fact that Tennessee ranks near the bottom in average jury verdicts, despite the fact that doctors and hospitals win most jury trials, despite the fact that the doctors’ major malpractice insurance carrier a/k/a SVMIC reduced its premiums last year, despite the fact that the Malpractice Act was amended in 2008 and 2009 to require notice and certificates of good faith that substantially reduced the number of malpractice lawsuits filed state-wide, despite the fact that doctors are coming to Tennessee instead of leaving it, and despite the fact that Tennessee is not a “judicial hellhole” by any reasonable measure, our governor and the legislature does not trust jurors. They want government-imposed caps for political reasons—and they are going to impose them no matter the facts. The extent of the cap whether it be $250,000 or $1,250,000 for all non-economic damages is still unknown. Nevertheless, there will be a cap. We are all going to have to practice in a new legal environment where many meritorious claims will never see a courtroom. This is an injustice that will plague many of us and our aggrieved clients. In the meantime, we have to adjust our practice in this new reality. I’ll talk about this in later issues. The immediate question is what we should do to fight tort reform most effectively in constitutional grounds.

First and foremost, we must fight tooth and nail to get our courts to overturn caps as unconstitutional. The Georgia experience is the best recipe for getting this relief. In Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 286 Ga. 731, 691 S.E.2d 218 (Ga. 2010), the Georgia Supreme Court assessed the constitutionality of OCGA § 51-13-1, which limited awards of noneconomic damages in medical malpractice cases to $350,000. The trial court held that the statute violated the Georgia Constitution by encroaching on the right to a jury trial, the governmental separation of powers, and the right to equal protection. The Georgia Supreme Court agreed, finding that the noneconomic damages caps violated the constitutional right to trial by jury. A review the facts shows why the Court came to this just conclusion. Harvey P. Cole, M.D., of Atlanta Oculoplastic Surgery, d/b/a Oculus, performed CO2 laser resurfacing and a full facelift on Betty Nestlehutt. In the weeks after the surgery, complications arose, resulting in Nestlehutt’s permanent facial disfigurement. The injury was awful by anyone’s standards. Nestlehutt, along with her husband, sued Oculus for medical malpractice. The case proceeded to trial, and the jury returned a verdict of $1,265,000, comprised of $115,000 for past and future medical expenses; $900,000 in noneconomic damages for Ms. Nestlehutt’s pain and suffering; and $250,000 for Mr. Nestlehutt’s loss of consortium. The Nestlehutts then moved to have OCGA § 51-13-1, which would have reduced the jury’s noneconomic damages award by $800,000 to the statutory limit of $350,000, declared unconstitutional. The trial court granted the motion and entered judgment for the Nestlehutts in the full amount awarded by the jury. Oculus moved for a new trial, which was denied. The Court found that the determination of damages rests peculiarly within the province of the jury. The right to a jury trial includes the right to have a jury determine the amount of … damages awarded to the plaintiff. Noneconomic damages have long been recognized as an element of total damages in tort cases, including those involving medical negligence. The constitutional provision guaranteeing the right to trial by jury preserved not merely the form or mode of trial, but the right of trial by jury in all its essential elements as it existed at common law at the adoption of its earliest constitution. The Court concluded that at the time of the adoption of Georgia’s Constitution of 1798, there existed 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.
The Court next examined whether the noneconomic damages caps unconstitutionally infringed on this right to trial by jury. By requiring the court to reduce a noneconomic damages award determined by a jury that exceeds the statutory limit, the cap clearly nullified the jury’s findings of fact regarding damages and thereby undermined the jury’s basic function. Consequently, The Court concluded that the caps infringed on a party’s constitutional right. If the legislature may constitutionally cap recovery at $350,000, then there is no discernible reason why it could not cap the recovery at some other figure, perhaps $50,000, or $1,000, or even $1. The very existence of the caps, in any amount, is violative of the right to trial by jury. While the Legislature generally has the authority to define, limit, and modify available legal remedies, the exercise of such authority cannot stand when the resulting legislation violates the constitutional right to jury trial. In sum, the Court concluded that the noneconomic damages caps of $350,000 violated the right to a jury trial guaranteed under the Georgia Constitution.

The Georgia experience teaches many lessons for us to follow. First, we must look at noneconomic caps as infringing on the right to trial by jury. It invades a constitutional right that has existed in Tennessee since ratification. Next, we must look for the “right” case to send up the appellate track. A cap on noneconomic damages will hurt those patients who have little or no lost earning capacity, i.e., housewives, the elderly, children, and disabled people. Moreover, the cap will hurt patients who retain earning capacity but are left with severe and painful injuries that impair their lifestyle. Severe disfigurement is an injury that may not impair earnings but devastate a person’s enjoyment of life. We work to live, not live to work. Earning capacity means nothing if the client cannot enjoy the fruits of his labor because he cannot enjoy life. The noneconomic damages cap impairs wrongful death claims for parents with multiple children. Limiting consortium losses to $250,000 or $750,000 where there is a surviving spouse and children is an insult to the nuclear family unit. Why are the family values voters and constitutionalists silent on this?

Here’s the point. We all need to locate a case where there is severe disfigurement, major consortium losses, burn injuries, lost limbs or organs, or death and little to no lost earning capacity. These are cases that will clearly demonstrate to the courts why the noneconomic damages cap is patently unfair and infringes on the constitutional right to a jury trial. Our firm sometimes retains a consortium loss expert to explain the nature and value of lost consortium. It will be financially risky to invest in such a case where the prospective damages will be capped. It will take intense preparation, work, and a cogent plan with constitutional memoranda included in the litigation. However, our firm is willing to take that risk to overturn this unjust law. We believe in enforcing our constitution. The experience in Georgia teaches us that good facts, good legal arguments, good preparation, and persistence will defeat tort reform and preserve our clients’ constitutional rights.