Anytime that a court cites to international law or laws from the 14th century, things are not good. More often than not, the court is attempting to justify a result that bears little relationship to the real world or, more importantly, to what the constitutions of either the United States or Georgia require. Well, that was exactly what happened recently in a decision by the Georgia Supreme Court striking down limits on the amount of money that people can recover in addition to their economic losses in medical malpractice cases.
As a result of years of “out of control” frivolous lawsuits and the associated costs, doctors were being driven out of Georgia, and hospitals and medical clinics were simply closing. The result was a “crisis affecting the provision and quality of health care services in this state.” Everyone, except trial lawyers and a few judges, recognized the consequences of what was happening.
Under Georgia’s constitution, it is the General Assembly’s responsibility to fashion solutions to problems like the ones impacting the availability and quality of healthcare available to Georgians. One solution to this problem was the inclusion of damage caps by the General Assembly in the Tort Reform Act of 2006. Recognition of this separation of powers issue, however, has been a bit of a challenge for a judiciary dominated by Democratic appointees in the face of a Republican controlled General Assembly and Republican governor.
On March 22, 2010, all seven justices, including Governor Perdue’s appointees, held that the cap on “non-economic damages” was unconstitutional. At first blush, most would think that a unanimous decision that includes both Democratic and Republican appointees must be right. Yet, after reviewing the decision, it is clear that it is simply more of the same, with Georgia patients paying the price because the Court insists on imposing its will over the will of Georgia voters as evidenced by the actions of their elected representatives.
So, what happened? Well, a patient brought a lawsuit against her surgeon for medical malpractice. It was a valid lawsuit and nothing in the Tort Reform Act of 2006 prevented the patient from pursuing her lawsuit and recovering from her doctor. After a trial, the jury awarded the patient $115,000 for her past and future medical expenses. The jury then awarded the patient another $1,150,000 for damages other than her medical expenses ($900,000 for non-economic damages and $250,000 for lost affections). This tenfold increase was subject to reduction under the Tort Reform Act of 2006 to $350,000 (a threefold increase.) The question that the Georgia Supreme Court had to answer was whether such a mandatory reduction under the statute was constitutional.
Chief Justice Carol Hunstein wrote the opinion of the court which not only struck down the reduction, but also effectively rules that there could never be any limits by the legislature on how much money a plaintiff could recover for things other than their past and future medical expenses. Yes, NO LIMIT.
Readers of the opinion knew that it was stretch when the court began with this jewel: “The antecedents of the modern medical malpractice action trace back to the 14th century.” From there the court goes on to note that the first medical malpractice case appears to be a case brought in 1374 in England when King Edward II ruled. A 1374 case under King Edward II - trouble is brewing.
So why does all of this matter? Well, Chief Justice Hunstein’s view is based on the idea that Georgia’s constitution guarantees the right to a jury “with respect to cases 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.” Basically, under this theory, if there was a right to a jury trial for something in 1798, then there is a right to a jury trial today unless the Georgia constitution is amended.
Think about that. Without amending the Georgia constitution, the Georgia General Assembly could never change or eliminate a type of lawsuit that could be brought in 1798. Of course, there were a lot of things that folks could sue for back then (long before the Civil War) which have appropriately been abolished, changed, or limited.
The scary part of this story is that no one on the Georgia Supreme Court disagreed. The door is now open for clever lawyers to go find every type of lawsuit that ever existed under the Kings and Queens of England and argue - if it existed then, it exists now. Of course, the door is also now open for every doctor and business to pick up their things, leave Georgia and take their healthcare services and associated jobs with them.
