AGG Files Amicus Brief on Behalf of Two of Georgia’s Largest Healthcare Associations

On behalf of two of the state’s largest healthcare associations — the Georgia Hospital Association (“GHA”) and the Medical Association of Georgia (“MAG”) — AGG Healthcare attorneys Jason Bring, Jerad Rissler, and Lisa Churvis submitted an amicus (friend of the court) brief to the Georgia Court of Appeals, urging the court to uphold Georgia’s statutory cap on medical malpractice wrongful death awards.

In 2005, the Georgia General Assembly became concerned with the deleterious effects of rampant litigation and runaway verdicts. It therefore placed a cap on the noneconomic damages (e.g., pain and suffering) that can be recovered through medical malpractice injury and wrongful death claims. By 2010, however, the Supreme Court of Georgia struck down a portion of that statute as unconstitutionally infringing on the right to a jury trial as applied to common law negligence claims for pain and suffering and loss of consortium. Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt (“Nestlehutt”), 286 Ga. 731 (2010). The Nestlehutt Court found that, because pain and suffering and loss of consortium claims existed before Georgia’s Constitution of 1798, the General Assembly’s attempt to cap damages for these claims infringed upon the constitutional right to a jury trial. Nestlehutt, however, did not involve a wrongful death claim.

More recently, in Taylor v. Devereux Found., Inc., 316 Ga. 44 (2023), the Supreme Court of Georgia upheld Georgia’s separate cap on punitive damages, explaining that no claim for punitive damages existed when Georgia adopted its Constitution. Thus, the Court held, because the General Assembly created a claim for punitive damages in the first place, its placement of limitations on that claim did not violate the constitutional right to trial by jury.

Based on the rationale of Taylor, defendants in a recent medical malpractice case argued that the trial court must apply the statutory medical malpractice cap to reduce a jury’s $7.2 million wrongful death award. Like punitive damages claims (and unlike the common law claims at issue in Nestlehutt), wrongful death claims did not exist before Georgia’s Constitution of 1798. Instead, the General Assembly, by statute, created the wrongful death cause of action more than 50 years after the Constitution’s adoption. The trial court, however, concluded that the Nestlehutt Court had declared medical malpractice damages caps entirely unconstitutional, even though Nestlehutt did not involve any claims for wrongful death. The defendants have now appealed to the Georgia Court of Appeals, and GHA and MAG have urged the court to follow Taylor and apply the General Assembly’s medical malpractice caps to the wrongful death claims the General Assembly created.

In their brief, GHA and MAG highlighted that the litigation crisis has only worsened since 2005, when the General Assembly last passed tort reform. “Nuclear verdicts” —  defined as jury verdicts of $10 million or more — are increasing in both amount and frequency. Per the Chamber of Commerce, six of 10 years of study data (from 2010 to 2019) showed that the total amount of noneconomic damages awarded in nuclear verdicts exceeded the total amount of economic damages and punitive damages combined. More recently, in August 2022, a DeKalb County State Court jury awarded a “nuclear verdict,” including a $55 million wrongful death award. This marked the biggest medical liability verdict in Georgia history. Runaway jury awards benefit very few but have negative ripple effects that disadvantage many. This is especially true for noneconomic damages verdicts, like wrongful death awards, which involve no direct economic loss and have no precise value.

To access the brief, please click here. For more information on the appeal, please contact Jason, Jerad, or Lisa.