Yesterday, the Georgia Supreme Court struck down the state’s legislative cap on noneconomic damages in medical malpractice lawsuits. The Supreme Court relied on not only the authority of the Georgia Constitution, but on pre-Constitutional precedents that the Georgia Constitution recognized as standing law to say that the right to a jury trial includes the right to damages decided by a jury. Because the noneconomic damages cap explicitly, unilaterally, and categorically limits noneconomic damages, the Court said that it interfered with a jury’s ability to decide the actual damages. And, since the finding of damages is considered to be a finding of fact, the Court said the cap was tantamount to telling a jury what verdict it had to deliver.

The Court did its homework on this one, attempting not only to establish the Constitutionality, but to demonstrate the fundamental values and deeply-established roots of personal injury lawsuits like medical malpractice. The first case referenced was in fact the first recorded medical malpractice case in England, dating from 1374, and the Court noted that “mala praxis” was established as one of the five categories of “private wrongs” in Blackstone’s 1765-1769 Commentaries on English Law: “mala praxis is a great misdemeanor and offence at common law, whether it be for curiosity and experiment or by neglect; because it breaks the trust which the party has placed in his physician and tends to the patient’s destruction” (Book 3, Ch. 8, Sec 4, some spelling modernized).

In addition, the court pointed out that for some injuries, the noneconomic damages are the most important part of a jury’s verdict. For this, it relied on the 1860 birth injury case of Smith v. Overby, a birth injury lawsuit where the justice explained the value of nonphysical damages using the example of a man who is spit on in public: “what, I ask, is the actual injury. The mere bodily suffering? That is nothing. Men have a moral as well as a physical nature. Here the injury is done to his feelings, his honor, his pride, his social position. Suffer these to go unprotected, unredressed, and life is no longer tolerable. Hence the jury in such a case should render large damages, not as punishment, but to compensate the actual injury. They must put a price on the manhood of a free man, and mulct the defendant accordingly.” In other words, it is the jury’s job to somehow try to put a price on the priceless.

Putting a price on the priceless has been a central tenet of tort law since at least the Laws of Ur-Nammu (c. 2112-2050(?) BCE)–which puts prices on a man’s eye, his foot, his nose, his tooth and other priceless treasures. In ancient times, this power rested in the king, who could say, “this is the value of your eye, your arm, your unborn child.” When we removed the king from government, we rested that power in the people, specifically “the enlightened conscience of impartial jurors.” Noneconomic damage caps wrest that power back, replacing the voice of the people with a Sumerian edict, “This much for your deprivation of life, this much for your liberty, this much for your pursuit of happiness.”

Unfortunately, since noneconomic damage caps were upheld by Ohio’s cuneiform Court, we can only look in envy on those in other states who have been restored the full measure of Constitutional rights, Illinois last year, and now Georgia.

But if you have been hurt by the negligence of a doctor, the lawyers of Robert W. Kerpsack, CO., LPA stand ready to get you the full measure of justice permitted by law. Please call or email us today for a free consultation.