ATLANTA OCULOPLASTIC SURGERY v. Nestlehutt

• Decision Date: 22 March 2010
• Docket Number: No. S09A1432.,S09A1432.
• Parties: ATLANTA OCULOPLASTIC SURGERY, P.C. v. NESTLEHUTT et al.
• Court: Georgia Supreme Court

691 S.E.2d 218

ATLANTA OCULOPLASTIC SURGERY, P.C. v. NESTLEHUTT et al.

No. S09A1432.

Supreme Court of Georgia.

March 22, 2010.

COPYRIGHT MATERIAL OMITTED

Peters & Monyak, Jonathan C. Peters, Melissa B. Johnson, Carlock, Copeland & Stair, Thomas S. Carlock, Atlanta, Eric J. Frisch, Columbus, for appellant.

Bondurant, Mixson & Elmore, Michael B. Terry, Sarah M. Shalf, Houck, Ilardi & Regas, Frank A. Ilardi, Rosser A. Malone, James D. Summerville, Atlanta, for appellees.

HUNSTEIN, Chief Justice.

This case requires us to assess the constitutionality of OCGA § 51-13-1, which limits awards of noneconomic damages in medical malpractice cases to a predetermined amount. The trial court held that the statute violates the Georgia Constitution by encroaching on the right to a jury trial, the governmental separation of powers, and the right to equal protection. Based on our review of the record and the applicable law, we find that the noneconomic damages caps in OCGA § 51-13-1 violate the constitutional right to trial by jury, and we therefore affirm.¹

In January 2006, Harvey P. Cole, M.D., of Atlanta Oculoplastic Surgery, d/b/a Oculus, performed CO2 laser resurfacing and a full facelift on appellee Betty Nestlehutt. In the weeks after the surgery, complications arose, resulting in Nestlehutt's permanent disfigurement. Nestlehutt, along with her husband, sued Oculus for medical malpractice. The case proceeded to trial, ending in a mistrial. On retrial, 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. Appellees 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 thereupon entered judgment for appellees in the full amount awarded by the jury. Oculus moved for a new trial, which was denied, and this appeal ensued.

1. In relevant part, OCGA § 51-13-1 provides:

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.

Id. at (b). "Noneconomic damages" is defined as

damages for physical and emotional pain, discomfort, anxiety, hardship, distress, suffering, inconvenience, physical impairment, mental anguish, disfigurement, loss of enjoyment of life, loss of society and companionship, loss of consortium, injury to reputation, and all other nonpecuniary losses of any kind or nature.

Id. at (a)(4). In addition to capping noneconomic damages against health care providers,² the statute also limits noneconomic damages awards against a single medical facility to $350,000; limits such awards to $700,000 for actions against more than one medical facility; and limits such awards to $1,050,000 for actions against multiple health care providers and medical facilities. Id. at (c), (d), (e).

Enacted as part of a broad legislative package known as the Tort Reform Act of 2005, the damages caps were intended to help address what the General Assembly determined to be a "crisis affecting the provision and quality of health care services in this state." Ga. L.2005, p. 1, § 1. Specifically, the Legislature found that health care providers and facilities were being negatively affected by diminishing access to and increasing costs of procuring liability insurance, and that these problems in the liability insurance market bore the potential to reduce Georgia citizens' access to health care services, thus degrading their health and well-being. Id. The provisions of the Tort Reform Act were therefore intended by the Legislature to "promote predictability and improvement in the provision of quality health care services and the resolution of health care liability claims and ... thereby assist in promoting the provision of health care liability insurance by insurance providers." Id. at p. 2.

2. We examine first the trial court's holding that the noneconomic damages cap violates our state Constitution's guarantee of the right to trial by jury.

Duly enacted statutes enjoy a presumption of constitutionality. A trial court must uphold a statute unless the party seeking to nullify it shows that it "manifestly infringes upon a constitutional provision or violates the rights of the people." The constitutionality of a statute presents a question of law. Accordingly, we review a trial court's holding regarding the constitutionality of a statute de novo.

(Footnotes omitted.) Rhodes v. State, 283 Ga. 361, 362, 659 S.E.2d 370 (2008).

The Georgia Constitution states plainly that "the right to trial by jury shall remain inviolate." Ga. Const. of 1983, Art. I, Sec. I, Par. XI(a). It is well established that Article I, Section I, Paragraph XI(a) "guarantees the right to a jury trial only with respect to cases as to which there existed a right to jury trial at common law or by statute at the time of the adoption of the Georgia Constitution in 1798. Cit." Benton v. Georgia Marble Co., 258 Ga. 58, 66, 365 S.E.2d 413 (1988). Accord Tift v. Griffin, 5 Ga. 185, 188-189 (1848). Prior to adoption of the 1798 Constitution, the General Assembly had adopted the common law of England and all statutes in force as of 1776 as the law of Georgia. Warlick v. Great Atlantic & Pacific Tea Co., 170 Ga. 538(2), 153 S.E. 420 (1930). Thus, the initial step in our analysis must necessarily be an examination of the right to jury trial under late eighteenth century English common law. See Rouse v. State, 4 Ga. 136, 145-147 (1848) (referring to Blackstone, "whose commentaries constituted the law of this State, before and since the Revolution," as authoritative on jury trial right as of 1798).³

(a) The antecedents of the modern medical malpractice action trace back to the 14th century.

The first recorded case in England on the civil liability of a physician was an action brought before the Kings Bench in 1374 against a surgeon by the name of J. Mort involving the treatment of a wounded hand. The physician was held not liable because of a legal technicality, but the court clearly enunciated the rule that if negligence is proved in such a case the law will provide a remedy.

(Footnote omitted.) C. Joseph Stetler, The History of Reported Medical Professional Liability Cases, 30 Temp. L.Q. 366, 367 (1957). See also Allan H. McCoid, The Care Required of Medical Practitioners, 12 Vand. L.Rev. 549, 550 (1959). By the mid-18th century, the concept of "mala praxis" was sufficiently established in legal theory as to constitute one of five classes of "private wrongs" described by Sir William Blackstone in his Commentaries. 3 W. Blackstone, Commentaries on the Laws of England, Ch. 8, p. 122 (1772) ("For it hath been solemnly resolved, that mala praxis is a great misdemeanor and offense at common law, whether it be for curiosity and experiment, or by neglect"). The concept took root in early American common law, the earliest reported medical negligence case in America dating to 1794. Cross v. Guthery, 2 Root 90, 1794 WL 198 (Conn.Super.1794) (affirming jury's award of damages against surgeon for unskillful performance of operation). Given the clear existence of medical negligence claims as of the adoption of the Georgia Constitution of 1798, we have no difficulty concluding that such claims are encompassed within the right to jury trial under Art. I, Sec. I, Par. XI(a). This conclusion is bolstered by the fact that medical negligence claims appear in Georgia's earliest systematically reported case law, see Smith v. Overby, 30 Ga. 241 (1860) (action brought against physician for negligence in delivery of baby); Perkins v. Attaway, 14 Ga. 27, 29 (1853) (jury instruction in legal malpractice action stating that counsel was responsible to clients "just as a surgeon is responsible for an unskilful operation in surgery"), and the fact that the tort of medical malpractice was included in Georgia's earliest Code. See Code of 1861, § 2915 (effective Jan. 1, 1863).⁴

As with all torts, the determination of damages rests "`peculiarly within the province of the jury.'" (Citation omitted.) Dimick v. Schiedt, 293 U.S. 474, 480(3), 55 S.Ct. 296, 79 L.Ed. 603 (1935). See also OCGA § 51-12-12(a) ("the question of damages is ordinarily one for the jury"). Because the amount of damages sustained by a plaintiff is ordinarily an issue of fact, this has been the rule from the beginning of trial by jury. See Charles T. McCormick, Handbook on the Law of Damages § 6, p. 24 (1935). See also 3 Blackstone, Commentaries, supra, Ch. 24, p. 397 ("the quantum of damages sustained by a plaintiff cannot be ascertained without the intervention of a jury"). Hence, "the right to a jury trial includes the right to have a jury determine the amount of ... damages, if any, awarded to the plaintiff." (Emphasis in original.) Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 353(III), 118 S.Ct. 1279, 140 L.Ed.2d 438 (1998).⁵ Accord Western & Atlantic R.R. v. Abbott, 74 Ga. 851(3) (1885) (pain and suffering damages to be measured according to enlightened conscience of impartial jurors).

Noneconomic damages have long been recognized as an element of total damages in tort cases, including those involving medical negligence. See 3 Blackstone, Commentaries, supra, Ch. 8, p. 122 (victim of mala praxis entitled to recover for "all personal wrongs and injuries"); Scott v. Sheperd, 95 E.R. 1124, 1126 (K.B.1773) (damages awarded in part for "excruciating pain and torment"). See also Grannis v....