GEORGIA TRIAL JUDGE TOSSES MED MAL CAPS

In February 2009, Fulton County State Court Judge Diane E. Bessen tossed out the provisions limiting to $350,000 against doctors, or $700,000 in cases against multiple medical facilities.

http://www.dailyreportonline.com/Editorial/PDF/PDF%20Archive/Order-Declaring-Unconstitutional.pdf

Another trial judge has struck down as unconstitutional limits on how much in pain and suffering damages a jury can award plaintiffs in medical malpractice cases.

Late Monday, Fulton County State Court Judge Diane E. Bessen tossed out the provisions limiting to $350,000 against doctors, or $700,000 in cases against multiple medical facilities.

In her decision, Bessen said the caps, part of the 2005 legislative package known as Senate Bill 3, violated the Georgia Constitution’s guarantee of a right to jury trial since they strip juries of their ability to determine appropriate damages.

The caps also violate the state Constitution’s Separation of Powers doctrine because, she wrote, the statute does not allow the court to offer any chance for judicial review of its mandated reduction of any award exceeding the limits.

“In effect,” she wrote, “the statute completely disregards the jury’s deliberations and findings in determining the amount of damages which, in its sole discretion, fairly compensates the plaintiff. Instead, in all cases to which it applies, the cap substitutes a predetermined amount of noneconomic damages which the legislature has deemed appropriate. Moreover, it does so arbitrarily, without any consideration of the specific facts and circumstances of the case. Equally important, it does so without the option of a new trial for the injured plaintiff. As such it unduly encroaches upon the judiciary’s constitutional right and prerogative to determine whether a jury’s assessment of damages is either too excessive or inadequate within the meaning of the law.”

Bessen also found that the law violates constitutional equal protection guarantees, which require a showing that a legislative action must have a “rational relationship to a legitimate governmental purpose.”

“After review,” wrote Bessen, “this Court finds that there is no rational relationship between statute and the expressed government interest. Most obviously, it is a complete contradiction to state that the overall quality of healthcare would be improved by shielding negligent health care providers from liability.”

The order also takes aim at claims that the caps keep down the cost of healthcare, pointing to studies showing that, in states where such caps exist, insurance rates have increased, while in Minnesota, which eliminated its caps, costs went down.

Finally, she wrote, “[t]he cap’s greatest impact falls on those who are most severely injured … and discriminates against those low-income individuals who are unable to prove large economic damages but nevertheless may sustain large noneconomic damages.”

If appealed, Bessen’s decision sets up a showdown at the state Supreme Court, which was set to rule on the caps’ constitutionality. The high court last year was considering a similar ruling by Fulton County Superior Court Judge Marvin S. Arrington, but the parties settled and the case was dismissed.

The winning lawyer, Adam Malone, said Monday night, “I’m very pleased with Judge Bessen’s order.” He represented a woman whose face was left with permanent bruises and discoloration following a facelift and other elective procedures. “There’s no rational reason to give negligent health care providers the protection of a cap.”

Jonathan C. Peters, who represented the doctor, could not be reached immediately.

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