Georgia Tort Reform "Unconstitutional": Correct Analysis, Growing Trend?

Earlier this year (March 2010), Georgia became one of the growing number of states that has overturned its legislated personal injury damage caps (aka "tort reform"), declaring the caps on damages "unconstitutional". The Georgia Supreme Court stated that a legislatively mandated cap on jury award in medical malpractice cases violated the right to a trial by jury and undermined the jury’s basic function. The ruling struck down the 2005 law placing a cap of $350,000 for pain in suffering.

The ruling was good news for a woman who was permanently disfigured from a botched face-lift operation. After surgery, the skin on her face died completely, leaving her with huge, gaping wounds covering both sides of her face. The jury awarded her $1.26 million and the judge ruled the cap was unconstitutional. This brought about an appeal and the March 2010 ruling striking down the caps.

The problem with tort reform is that it tries to place every case in a one-size-fits-all configuration. Every case is different; every plaintiff is different; the same injury can have different, often devasting effects on a human being. Tort reform nullifies a jury consideration of those subjective issues and its’ decision based on facts and evidence of a particular case. Laws placing artificial caps on damages are arbitrary amounts, determined by a state legislature, without regard to the evidence proferred in any particular case. Since every case is different, how can the settlement values on them be the same or less? Don’t victims deserve individual consideration of their injuries, their pain and suffering, medical expenses, their unique facts and circumstances, and a determination of fair and just compensation based on those facts and circumstances? Should a jury of your peers decide a case or should the government assess an arbitrary number?

When we seek medical treatment, we put trust in our doctors to do the right thing, to prescribe safe and correct medication, to diagnose conditions correctly, to perform the correct procedures. When the doctor is negligent and serious consequences result from a breach of the standard of care, this often has a major impact on a victim, physically, emotionally, and financially. And, everyone is different; the consequences to one might not be the consequences to another. Physical and emotional scars may last forever; financial devastation may be lessened with a fair settlement or verdict that considers all individual facts and circumstances.

Lawsuit Financial, the pro-justice lawsuit funding company, congratulates those who argued this case, putting safety first and our constitutional rights over profits. We congratulate the Georgia Supreme Court for its courageous decision in support of justice for Georgia citizens. The overturned decision in Georgia provides appropriate patient rights’ protections; the ruling is a victory for justice. It puts the decision back in the hands of those who hear the facts, circumstances, and evidence of each case, and give careful consideration to what they heard, back in the hands of Georgia juries, ‘we, the people’. Damage caps cause serious injury to our civil justice system in an effort to maximize profits for the insurance companies and large corporations. The best way to reduce malpractice premiums will always be to reduce incidents of malpractice.

Mark Bello has thirty-three years experience as a trial lawyer and twelve years as an underwriter and situational analyst in the lawsuit funding industry. He is the owner and founder of Lawsuit Financial Corporation which helps provide cash flow solutions and consulting when necessities of life funding is needed during litigation. Bello is a Justice Pac member of the American Association for Justice, Sustaining and Justice Pac member of the Michigan Association for Justice, Business Associate of the Florida, Tennessee, and Colorado Associations for Justice, a member of the American Bar Association, the State Bar of Michigan and the Injury Board.