Georgia Court Strikes Down Cap on Non-Economic Damages as Unconstitutional

As first reported in the Atlanta Journal-Constitution last month, a Superior Court judge struck down the cap on damage awards in medical malpractice cases as unconsitutional. If upheld on appeal, this holding could undercut a major component of Georgia's tort reform laws. Superior Court Judge Marvin Arrington wrote in an order that the legislative cap of $350,000 for noneconomic damages such as pain and suffering was unconstitutional because it gave special protections to the medical profession. This meant people injured by doctors had less protection than those injured by, say, a manufacturer's product. The legislature approved the $350,000 cap in 2005 as part of a civil-justice tort reform law over the opposition of the Georgia Trial Lawyers Association and consumer groups. Doctors and hospitals said the law was needed to hold down malpractice-insurance premiums. In reaction to Arrington's ruling, the Medical Association of Georgia said tort reform had made doctors' services, such as obstetrical and general surgery, more accessible because of reduced insurance premiums. In 2006, the Georgia Supreme Court stuck down another provision of tort reform when it ruled that defendants couldn't decide in which county their medical-malpractice case was tried. When the malpractice cap was enacted, trial lawyers complained its real effect was to reduce the incentive for doctors, hospitals and insurers to negotiate substantial settlements because they wouldn't face the threat of large verdicts for pain and suffering and other noneconomic damages, which are the most subjective part of jury awards. As set forth in the opinion, Arrington opined that "the statute effectively puts substantial limitations on the rights of the poor and middle class to recovery while leaving the right to virtually unlimited recoveries unimpeded for the wealthy."

In Maryland, a similar cap on non-economic damages exists. To date, efforts to have the cap overturned have been unsuccessful despite similar arguments to those made in Georgia being raised.

For medical malpractice claims arising after January 1, 2010 in Maryland, if there is only one wrongful death beneficiary, the maximum non–economic recovery for that medical negligence is $680,000. If there are 2 or more wrongful death beneficiaries, the maximum non–economic recovery is $850,000. For claims arising after January 1, 2011, if there is only one wrongful death beneficiary, the maximum non-economic recovery for that medical negligence is $695,000.  If there are 2 or more wrongful death beneficiaries, the maximum non-economic recovery is $868,750.  For claims arising after January 1, 2012, if there is only one wrongful death beneficiary, the maximum non-economic recovery for that medical negligence is $710,000.  If there are 2 or more wrongful death beneficiaries, the maximum non-economic recovery is $887,500.  For claims arising after January 1, 2013, if there is only one wrongful death beneficiary, the maximum non-economic recovery for that medical negligence is $725,000.  If there are 2 or more wrongful death beneficiaries, the maximum non-economic recovery is $906,250. 

These caps, of course, do not take into account a patient's economic losses -- future medical expenses, past medical expenses, past or future loss of earnings, out of pocket expenses -- sums that are added to the caps on non-economic damages in order to reach a total maximum possible award.