CAPS on Damages: What is your life worth?

By Matt Bouillon and Danny Orrock

Georgia Watch is keeping a keen eye on Atlanta Oculoplastic Surgery, P.C. v. Betty & Bruce Nestlehutt at the State Supreme Court that is challenging the cap on non-economic damages in the 2005 tort reform law. Non-economic damages are appropriate in cases where the jury wishes to compensate the injured party for harm that goes beyond lost wages or work opportunities. Pain and suffering, loss of normal marital relations (consortium), and physical injury or disfigurement are all non-monetary losses that fit in this category. Not surprisingly, amounts of non-economic damages can vary widely among cases and jurisdictions.

The Nestlehutt case involves a 71 year-old woman who sought the services of a plastic surgeon. Having discussed a range of procedures with Mrs. Nestlehutt, the doctor recommended that she undergo both a full facelift and laser resurfacing simultaneously despite the significant risks that this posed to a patient of her age. Serious problems soon arose. The two procedures drastically reduced the blood flow to Mrs. Nestlehutt’s face, and her skin was severely damaged. Tragically, the ordeal left her permanently disfigured.

The jury returned a verdict in favor of the Nestlehutts in the total amount of $1,265,000, most of which constituted non-economic damages: $900,000 for Mrs. Nestlehutt’s pain and suffering and $250,000 for Mr. Nestlehutt’s loss of consortium. The defendant Oculus contended that this was a misapplication of Georgia law and that the total amount of the Nestlehutts’ non-economic damages should be capped at $350,000, thus resulting in a total judgment of $465,000. The trial court refused this interpretation and struck the law down as unconstitutional. The defendant Oculus then appealed to the Supreme Court of Georgia.

Georgia Watch submitted an amicus brief in this case arguing that the law violates the prohibition in the Georgia constitution against “special laws” that grants status or privilege specifically to a favored group (such as healthcare providers). We have consistently been opposed to caps because this law favors certain groups over others. People who have a higher wage-earning potential – such as lawyers, doctors, and business executives – stand to receive a considerably higher amount of total damages than someone with a smaller income. Caps mean that the life or well-being of a person who is retired or whose work does not earn a salary, such as a homemaker, will be valued considerably less by a court.

Beyond placing a value on human life, Georgia’s caps provision bars access to the courthouse for some individuals. If a person cannot find a lawyer willing to take a case which will be arbitrarily capped by law, then they have effectively been shut out of the civil justice system. This amounts to a violation of the Seventh Amendment in the Bill of Rights, which guarantees every citizen a right to trial by jury for civil disputes over $20.

Georgia Watch will continue to fight for the patient who has been injured or killed through no fault of their own. Please stay tuned to Georgia Watch and our Court Watch program for info on how the Nestlehutt decision impacts your family.