Lawyers and legislators are anxiously awaiting decisions on two cases in Georgia that may affect the state’s tort reforms. In 2005, the state enacted a tort reform package that included a $350,000 cap on non-economic medical malpractice damages, and a change to the burden of proof required in suits against emergency medical providers. However, two cases argued before the state’s supreme court recently will determine whether the two provisions will stand.

The first case involves a real estate agent who, at the age of 71, sought plastic surgery to boost her image. Based on her doctor’s recommendation, she had a full facelift and CO2 laser resurfacing done together, a procedure known to be risky for a person of her age and complexion.

After surgery, the blood supply to her face was damaged, leaving her with permanent and severe disfigurement. At trial, a jury found in the plaintiff’s favor, and awarded her money for medical damages plus $900,000 in non-economic damages based on the change to her quality of life.

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The verdict exceeded the $350,000 limit on non-economic damages enacted in 2005, but the presiding judge ruled that the legislation capping damages was unconstitutional. The judge held that the provision violates three constitutional rights: the right to trial by jury, the separation of judicial and executive powers, and equal protection under the law. The defendant appealed, and the decision now rests in the hands of the Georgia Supreme Court.

The second case concerns the burden of proof required to sue emergency medical providers. In this case, a female patient showed up in a hospital emergency department complaining of a sudden severe headache. The physician diagnosed the patient as suffering from stress and sent her home with Valium, even though she was still in pain.

The patient suffered a stroke and was left paralyzed with significant neurological damage. The patient’s lawyer argued before the Georgia Supreme Court that the burden of proof required against emergency medical personnel (gross negligence) is almost insurmountable and practically eliminates medical malpractice claims. The provision gives “an unconscionable and inequitable advantage” to hospitals and emergency department physicians, the attorney argued.

Republican legislators have hinted that they will try to rewrite the law to preserve the provisions should the Georgia Supreme Court declare either or both unconstitutional.