Six Reasons the Court Refused to Apply the Cap

Six Reasons the Court Refused to Apply the Cap

Waiver

The defendants waited until after the jury returned its verdict to raise the damages cap for the first time. The court found this was too late. By failing to identify Section 51-13-1 in the pre-trial order, defendants waived their right to invoke it. The plaintiffs had justifiably relied on the defendants’ representations and were prejudiced — they could have presented different evidence and requested a different verdict form had the cap been timely raised.

Lesson for families: Defense lawyers sometimes try to spring the damages cap on plaintiffs after trial. An experienced wrongful death attorney will anticipate and counter these tactics.

The Entire Statute Fails — It Cannot Be Severed

The court held that the unconstitutional portions of Section 51-13-1 — specifically the caps on pain, suffering, and loss of consortium — are so intertwined with the rest of the statute that the entire law fails. The legislature chose a narrow severability clause that only allows courts to delete words, not rewrite statutes. The court could not surgically remove the unconstitutional portions without essentially rewriting the law — something courts are forbidden to do.

Separation of Powers

Applying the cap selectively — only to wrongful death damages but not to pain-and-suffering damages as Nestlehutt requires — would require the court to legislate from the bench. The General Assembly intended an across-the-board cap on all noneconomic damages. The court refused to transform that into a “wrongful death only” cap, recognizing that such a fundamental policy change belongs to the legislature, not the judiciary.

Right to Jury Trial

The court held that applying Section 51-13-1’s caps to wrongful death noneconomic damages would violate Georgia’s constitutional right to jury trial — and reached this conclusion using three different constitutional reference dates (1798, 1868, and 1983), independently and alternatively.

At each of those dates, medical malpractice claims existed in Georgia, juries decided them, and juries determined noneconomic damages. Capping those damages post-verdict substitutes the legislature’s judgment for the jury’s — precisely what Georgia’s Constitution prohibits.

Equal Protection

The court found that applying the cap only to wrongful death noneconomic damages — but not to pain-and-suffering damages for patients who survived — creates an arbitrary and irrational distinction that violates equal protection under Georgia’s Constitution.

The court illustrated this vividly: two patients suffer the same injury during surgery. One survives and can recover full noneconomic damages for loss of enjoyment of life. The other dies, and their family can recover only up to $350,000. The legislature never drew this distinction, and applying the cap this way has no rational relationship to the stated legislative purpose of promoting quality healthcare and predictability.

Set-Off Denied

The court also reaffirmed its earlier ruling that the defendants were not entitled to a set-off from prior settlements with former defendants — rejecting what the court called a “windfall” for the remaining defendants.