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Pain and Suffering Caps Declared Unconstitutional by Georgia Supreme Court

A recent decision by the Georgia Supreme Court has restored an important constitutional right for Georgia citizens, but efforts by special interest groups already are underway to try to strip us of those rights once again.

The decision resulted from a case involving Marietta real estate agent Betty Nestlehutt and Dr. Harvey “Chip” Cole III of Oculus Facial Plastic Surgeons in Atlanta. Mrs. Nestlehutt went to Dr. Cole requesting a simple procedure, but was talked into a multi-procedure surgery by the doctor.

During the 2006 operation, the doctor severely damaged the blood supply to Mrs. Nestlehutt’s face, leaving her with painful, gaping wounds and permanent, disfiguring scars. For months following the surgery, Mr. Nestlehutt helped his injured wife dress and undress her wounds twice a day. The sessions were long and horribly painful, and left the couple emotionally and physically drained.

Eventually, with her wounds still not healing, Mrs. Nestlehutt consulted with Dr. Seth Yellen, chief of facial, plastic and reconstructive surgery at Emory. Though he was not able to undo the damage caused by Dr. Cole’s negligence, Dr. Yellen was so upset by what had been done to Mrs. Nestlehutt that he broke Emory’s unwritten rule discouraging its doctors from testifying against colleagues in court.

With a mountain of evidence on their side, the Nestlehutts sued Dr. Cole for medical malpractice and won. The jury awarded them $1,265,000, which included $900,000 for pain and suffering.

Although Dr. Cole had $3 million in insurance – more than enough to cover the award in the case – it didn’t end there. Special interest groups representing insurance companies, big business and for-profit healthcare had pushed a Tort Reform cap through the Georgia legislature in 2005 stating that the most a plaintiff could be awarded for pain and suffering in a medical malpractice case was $350,000.

Although a jury of her peers had found Mrs. Nestlehutt deserving of much more, this legislation basically said that the jury’s verdict didn’t matter. The judge in the case, however, ruled that the 2005 Tort Reform cap was unconstitutional.

Dr. Cole’s attorneys immediately filed an appeal with the Supreme Court of Georgia. Recently, when the case came before them, Georgia’s Supreme Court judges unanimously agreed that any cap on damages awarded by a jury is unconstitutional.

While we can feel some relief that we live in a state where our constitutional rights to a trial by jury are protected by our Supreme Court, we must not get complacent. Tort reformers in the Legislature are working to resurrect the caps, and we need to make sure that it does not happen. Though special interest groups argue that caps keep doctors’ insurance premiums down and eliminate frivolous lawsuits, this just is not true. Under the 2005 Tort Reform caps, insurance premiums continued to rise, and those suffering only minor injuries still were able to collect up to $350,000. For those suffering life-altering injuries, however, $350,000 is a disgrace.

The 2005 cap put on pain and suffering compensation in medical malpractice cases was especially damaging to children, retirees and stay-at-home parents. Those with no earning power cannot claim economic damage when medical malpractice leaves them injured, so with the Tort Reform caps, $350,000 was the absolute most they could be awarded, period.

We must ensure that caps remain out of Georgia legislature so that all of our citizens – including children and seniors – remain protected under an intact and upheld Constitution. Write or call your elected officials to express your support in Georgia’s recent Supreme Court ruling. Let them know that you fully understand your right to have your disputes decided by a jury of your peers, and that the Georgia Legislature’s attempts to put caps on awards for pain and suffering in medical malpractice cases was, is and always will be unconstitutional.

To watch an excellent video explaining the 2005 Tort Reform caps and the Nestlehutt case, click here.

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