Debating Health Care Reform and Damage Caps

The Atlanta Journal Constitution features a good opinion piece on the health care reform debate and analyzes the Pros and Cons of damage caps on liability. Personally, I think the Cons are stronger arguments. Here is a link to the article in the AJC - it is well worth reading. Let me know what you think.

Georgia Medical Malpractice Caps

This week, the Georgia Supreme Court heard oral arguments on the constitutionality of a Georgia law that puts a limit (cap) on the amount of damages a victim of medical malpractice can obtain. Currently, O.C.G.A. § 51-13-1 (commonly referred to as SB3) limits the non-economic damages (also known as pain and suffering damages) in a medical malpractice case to $350,000. The relevant portion of SB3 reads as follows:

"In any verdict returned or judgment entered in a medical malpractice action, including an action for wrongful death, against one or more health care providers, the total amount recoverable by a claimant for noneconomic damages in such action shall be limited to an amount not to exceed $350,000.00, regardless of the number of defendant health care providers against whom the claim is asserted or the number of separate causes of action on which the claim is based."

This means that no matter how severe an individual's pain and suffering is or how much a jury awards to a plaintiff for their pain and suffering, the plaintiff will only be allowed to collect $350,000.

But what is pain and suffering worth? What is the pain and suffering worth that Mrs. Nestlehutt endured when her plastic surgeon so severly damaged the skin on her face that her face literally fell off? The jury in her case said it was worth $900,000.

The case is Nestlehutt v. Atlanta Oculoplastic Surgery, P.C., d/b/a Oculus and was filed in 2007. The trial court judge, Judge Diane Bessen, ruled that the cap on non-economic damages violates the Constitution on 3 grounds: the right to trial by jury, the separation of powers doctrine, and the equal protection of the laws. Judge Bessen wrote:

"A limit or cap on noneconomic damages, however, invades the right to a jury trial by usurping one of the fact-finding responsibilities of the jury. If the amount of noneconomic damages awarded by the jury exceeds the statutory cap, this Code section automatically and arbitrarily reduces the verdict, without consideration of the evidence, the record, or any other fact produced at trial and found by the jury. The limitations imposed by O.C.G.A. 51-13-1 render the right of the jury to assess damages meaningless… The cap so interferes with the determination of the jury that it renders the right of a jury trial wholly unavailable."

The question the Georgia Supreme Court faces is this: is it proper for the Georgia Legislature to make a law that takes away our firmly entrenched right to a jury in order to keep more money in the pockets of doctors and insurance companies? The news media goes to great lengths to spin tort reform as a way to reduce healthcare costs. But the numbers don't support their claims. Is a 2% reduction in medical spending really worth taking away the rights of patients? Our hope is that the Georgia Supreme Court will curb this legislation that protects only doctors at the expense of those they hurt the most. We will all have to wait and see.

You can watch the video here and listen to the arguments from both sides and then decide for yourself. Feel free to post your comments or opinions on the arguments.