One month after the highest court in Illinois ruled that a cap on noneconomic (i.e., pain and suffering) damages is unconstitutional, the highest court in Georgia has followed suit. In April, the Georgia Supreme Court ruled that a cap on malpractice damages is unconstitutional because it violates the separation of court and legislature and takes away a jury’s fundamental role in determining damages.

According to the National Conference of State Legislatures, 30 states have caps on damages in malpractice cases. These caps began in 1975, when California enacted the first law limiting damages for pain and suffering. The law kept malpractice premiums low in California, and numerous states jumped on the bandwagon and began enacting similar laws. Starting in the late 1980’s, however, caps on damages began being challenged in lawsuits as unconstitutional. Laws restricting malpractice damages have been struck down in several states, including Washington, Oregon, Wisconsin, and Illinois. A case is pending in Maryland to decide whether that state’s cap on pain and suffering damages is constitutional.

In the Georgia case, a jury awarded $1.265 million to a woman disfigured during a botched plastic surgery. The verdict included $115,000 for past and future medical expenses; $900,000 in noneconomic damages for the patient’s pain and suffering; and $250,000 for her husband’s loss of consortium. Georgia law created a cap of $350,000 for noneconomic damages, thereby substantially reducing the plaintiff’s award. She sued, arguing that the law was unconstitutional, and the state Supreme Court agreed. “The very existence of the caps, in any amount,” stated the court “is violative of the right to trial by jury.”

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