ATLANTA OCULOPLASTIC SURGERY, P.C. v. NESTLEHUTT et al.
S09A1432
Supreme Court of Georgia
March 22, 2010
286 Ga. 731 | 691 SE2d 218
This case requires us to assess the constitutionality of
In January 2006, Harvey P. Cole, M.D., of Atlanta Oculoplastic Surgery, d/b/a Oculus, performed CO2 laser resurfacing and a full facelift on appellee Betty Nestlehutt. In the weeks after the surgery, complications arose, resulting in Nestlehutt‘s permanent disfigurement. Nestlehutt, along with her husband, sued Oculus for medical malpractice. The case proceeded to trial, ending in a mistrial. On retrial, the jury returned a verdict of $1,265,000, comprised of $115,000 for past and future medical expenses; $900,000 in noneconomic damages for Ms. Nestlehutt‘s pain and suffering; and $250,000 for Mr. Nestlehutt‘s loss of consortium. Appellees then moved to have
1. In relevant part,
In any verdict returned or judgment entered in a medical malpractice action, including an action for wrongful death, against one or more health care providers, the total amount recoverable by a claimant for noneconomic damages in such action shall be limited to an amount not to exceed $350,000.00, regardless of the number of defendant health care providers against whom the claim is asserted or the number of separate causes of action on which the claim is based.
damages for physical and emotional pain, discomfort, anxiety, hardship, distress, suffering, inconvenience, physical impairment, mental anguish, disfigurement, loss of enjoyment of life, loss of society and companionship, loss of consortium, injury to reputation, and all other nonpecuniary losses of any kind or nature.
Enacted as part of a broad legislative package known as the Tort Reform Act of 2005, the damages caps were intended to help address what the General Assembly determined to be a “crisis affecting the provision and quality of health care services in this state.” Ga. L. 2005, p. 1, § 1. Specifically, the Legislature found that health care providers and facilities were being negatively affected by diminishing access to and increasing costs of procuring liability insurance, and that these problems in the liability insurance market bore the potential to reduce Georgia citizens’ access to health care services, thus degrading their health and well-being. Id. The provisions of the Tort Reform Act were therefore intended by the Legislature to “promote predictability and improvement in the provision of quality health care services and the resolution of health care liability claims and . . . thereby assist in promoting the provision of health care liability insurance by insurance providers.” Id. at p. 2.
2. We examine first the trial court‘s holding that the noneconomic damages cap violates our state Constitution‘s guarantee of the right to trial by jury.
Duly enacted statutes enjoy a presumption of constitutionality. A trial court must uphold a statute unless the party seeking to nullify it shows that it “manifestly infringes upon a constitutional provision or violates the rights of the people.” The constitutionality of a statute presents a ques-
(Footnotes omitted.) Rhodes v. State, 283 Ga. 361, 362 (659 SE2d 370) (2008).
The Georgia Constitution states plainly that “[t]he right to trial by jury shall remain inviolate.”
(a) The antecedents of the modern medical malpractice action trace back to the 14th century.
The first recorded case in England on the civil [liability] of a physician was an action brought before the Kings Bench in 1374 against a surgeon by the name of J. Mort involving the treatment of a wounded hand. The physician was held not liable because of a legal technicality, but the court clearly enunciated the rule that if negligence is proved in such a case the law will provide a remedy.
(Footnote omitted.) C. Joseph Stetler, The History of Reported Medical Professional Liability Cases, 30 Temp. L. Q. 366, 367 (1957). See also Allan H. McCoid, The Care Required of Medical Practitioners, 12 Vand. L. Rev. 549, 550 (1959). By the mid-18th century, the concept of “mala praxis” was sufficiently established in legal theory as to constitute one of five classes of “private wrongs” described by Sir William Blackstone in his Commentaries. 3 W. Blackstone, Commentaries on the Laws of England, Ch. 8, p. 122 (1772) (“For it
As with all torts, the determination of damages rests ““peculiarly within the province of the jury.” (Citation omitted.) Dimick v. Schiedt, 293 U.S. 474, 480 (3) (55 SC 296, 79 LE 603) (1935). See also
Noneconomic damages have long been recognized as an element of total damages in tort cases, including those involving medical negligence. See 3 Blackstone, Commentaries, supra, Ch. 8, p. 122 (victim of mala praxis entitled to recover for “all personal wrongs and injuries“); Scott v. Sheperd, 95 E. R. 1124, 1126 (K.B. 1773) (damages awarded in part for “excruciating pain and torment“). See also Grannis v. Branden, 5 Day 260 (Conn. 1812) (recovery sought for “great and unnecessary pain” in medical negligence case); Atkinson v. Hains, 6 N.J.L. 327 (1796) (sanctioning recovery for loss of services); Cross, supra, 2 Root 90 (affirming award of damages for loss of consortium occasioned by medical negligence); Beebe v. Trafford, 1 Kirby 215 (Conn. Super. 1787) (involving award of damages for, inter alia, pain and distress). Early reported Georgia case law confirms the recognition of the right to recover damages for “mental sufferings.” See Smith, supra, 30 Ga. at 245 (reversing defense verdict in medical malpractice action due to, inter alia, misleading jury instructions regarding recoverable damages).
[T]he constitutional provision[] [guaranteeing the right to trial by jury] preserved not merely the form or mode of trial, but the right of trial by jury in all its essential elements as it existed at common law and as it obtained in this State at the date of the adoption of our earliest constitution. [Cit.]
(Emphasis supplied.) Pollard v. State, 148 Ga. 447, 454 (96 SE 997) (1918). Based on the foregoing, we conclude that at the time of the adoption of our Constitution of 1798, there did exist the common law right to a jury trial for claims involving the negligence of a health care provider, with an attendant right to the award of the full measure of damages, including noneconomic damages, as determined by the jury.
(b) We next examine whether the noneconomic damages caps in
The fact that
Contrary to appellant‘s assertion, State of Ga. v. Moseley, 263 Ga. 680 (2) (436 SE2d 632) (1993) and Teasley v. Mathis, 243 Ga. 561 (2) (255 SE2d 57) (1979) do not support a different result, as these cases addressed statutory limits on punitive damages, which, “[u]nlike the measure of actual damages suffered . . . [are] not really a ‘fact’ ‘tried’ by the jury.” (Citations omitted.) Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 437 (III) (121 SC 1678, 149 LE2d 674) (2001) (because punitive damages award does not constitute finding of fact, potential limitations on size of awards do not implicate Seventh Amendment jury trial right). See also
Though we agree with the general principle stated in Moseley and Teasley that the Legislature has authority to modify or abrogate the common law, we do not agree with the notion that this general authority empowers the Legislature to abrogate constitutional rights that may inhere in common law causes of action. See Dimick, supra, 293 U.S. at 487 (3) (“To effectuate any change in [common law rules embodied in right to jury trial] is not to deal with the common law, qua common law, but to alter the Constitution“); Georgia Lions Eye Bank, Inc. v. Lavant, 255 Ga. 60, 61-62 (2) (335 SE2d 127) (1985)
Nor does, as appellant asserts, the existence of statutes authorizing double or treble damages attest to the validity of the caps on noneconomic damages. While it is questionable whether any cause of action involving an award thereof would constitute an analogue to a 1798 common law cause of action so as to trigger the right to jury trial in the first place,6 to the extent the right to jury trial did attach, treble damages do not in any way nullify the jury‘s damages award but rather merely operate upon and thus affirm the integrity of that award.7
We must also reject the argument that the noneconomic damages caps pose no greater threat to the right to jury trial than the courts’ exercise of their remittitur power. Judicial remittitur, the power to reduce a damages award deemed clearly excessive, is a corollary of the courts’ constitutionally derived authority to grant new trials under
In sum, based on the foregoing, we conclude that the noneconomic damages caps in
3. “The general rule is that an unconstitutional statute is wholly void and of no force and effect from the date it was enacted.” (Citations omitted.) City of Atlanta v. Barnes, 276 Ga. 449, 452 (4) (578 SE2d 110) (2003). However, exceptions may be made to this general rule ““where, because of the nature of the statute and its previous application, unjust results would accrue to those who justifiably relied on it. (Cits.)’ [Cit.]” Id. In determining whether to deviate from the default rule of retroactivity, Georgia courts assess three factors: (1) whether the decision in question established a new principle of law either by overruling past precedent or deciding an issue of first impression, the resolution of which was not clearly foreshadowed; (2) whether retroactive application would further or retard the operation of the rule in question; and (3) whether retroactive application would result in substantial inequitable results. Id. at 453. Accord Findley v. Findley, 280 Ga. 454 (1) (629 SE2d 222) (2006).
In this case, we do not find that the above factors militate in favor of deviation from the general rule of retroactivity. As to the first factor, while our invalidation of the noneconomic damages caps
Regarding the second factor, clearly, retroactive application would advance the operation of our holding herein, in that an unconstitutional statute will not be given effect even for the brief period between enactment and invalidation. See City of Atlanta, supra, 276 Ga. at 453 (4) (“[a]pplying the ruling of unconstitutionality retrospectively will have the effect of undoing th[e] illegal regulation“). Finally, as to the third factor, we do not find that retroactive application will result in substantial inequitable results. Nothing in the record supports appellant‘s contention that its litigation strategy would have been different had it known that the caps were invalid, especially given that the caps had no impact on the determination of liability and, as they were to be applied only after the jury reached its verdict, would have had no bearing on evidentiary rulings, arguments of counsel, or jury instructions. Compare Banks v. ICI Americas, Inc., 264 Ga. 732 (2) (450 SE2d 671) (1994) (application of new standard of liability would affect evidence presented, objections thereto, trial arguments, and jury instructions); American Assn. of Cab Cos. v. Parham, 291 Ga. App. 33 (3) (a), (b) (661 SE2d 161) (2008) (application of new standard of proof necessarily affected jury‘s assessment of liability). Further, appellant‘s argument regarding the impact of the damages caps on its strategy as to settlement is simply too speculative to justify deviation from the general rule of retroactivity. We have declined to find substantial inequitable results in cases involving far more compelling instances of hardship. See, e.g., City of Atlanta, supra, 276 Ga. at 452-453 (4) (financial hardship imposed by requiring refund of millions of dollars in taxes paid under unconstitutional ordinance did not justify prospective application). Accordingly, we are not inclined
4. We find no abuse of the trial court‘s discretion in granting appellees’ motion to exclude certain evidence, because that ruling was necessitated by the trial court‘s earlier grant of appellant‘s motion in limine. See generally Dyals v. Dyals, 281 Ga. 894 (3) (644 SE2d 138) (2007) (party cannot complain of alleged error induced by its own conduct). As to appellant‘s claim that the evidence was relevant to establishing the bias of appellee‘s expert witness, the record establishes that the trial court‘s ruling in no manner precluded appellant from attempting to show the witness’ bias through cross-examination or other means. Accordingly, this enumeration lacks merit.
For the foregoing reasons, we affirm the judgment of the trial court.
Judgment affirmed. All the Justices concur, except Melton, J., who concurs in Divisions 1, 2, and 4 and in the judgment, and Carley, P. J., and Hines and Nahmias, JJ., who concur specially.
NAHMIAS, Justice, concurring specially.
I join all of the majority opinion except for Division 3, regarding retroactive application, in which I concur only in the result.
1. As the Court correctly and unanimously concludes in Division 2 of the majority opinion,
2. I join only in the result of Division 3 of the majority opinion. I agree that our holding that
Harper followed Griffith v. Kentucky, 479 U.S. 314 (107 SC 708, 93 LE2d 649) (1987), which overruled the similar multi-factor balancing test for selective retroactivity in the criminal context that had been adopted in Linkletter v. Walker, 381 U.S. 618 (85 SC 1731, 14 LE2d 601) (1965). Griffith‘s holding “rested on two ‘basic norms of constitutional adjudication.‘” Harper, 509 U.S. at 95 (quoting Griffith, 479 U.S. at 322).
First, we reasoned that “the nature of judicial review” strips us of the quintessentially “legislat[ive]” prerogative to make rules of law retroactive or prospective as we see fit. . . . Second, we concluded that “selective application of new rules violates the principle of treating similarly situated [parties] the same.”
Id. (quoting Griffith, 479 U.S. at 322-323).
The Harper Court explained that these basic principles of judicial adjudication applied to civil cases as well:
In both civil and criminal cases, we can scarcely permit “the substantive law [to] shift and spring” according to “the particular equities of [individual parties‘] claims” of actual reliance on an old rule and of harm from a retroactive application of the new rule. Our approach to retroactivity heeds the admonition that “[t]he Court has no more constitutional authority in civil cases than in criminal cases to disregard current law or to treat similarly situated litigants differently.”
Id. at 97 (citations omitted). Thus, the current doctrine as to federal law is that, when the U. S. Supreme Court “applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule.” Id.
I recognize that, with respect to the retroactivity of this Court‘s decisions on state law issues, the federal doctrine is not controlling.
In deciding this issue, we have been strongly influenced by considerations of fairness and the even-handed administration of justice. In order to ensure that similarly situated defendants are treated similarly and to maintain the integrity of the judicial process while still providing finality, we deem it appropriate to adopt the “pipeline” approach, that is, that a new rule of criminal procedure (here, the disapproval of the sequential jury charge on murder and manslaughter) will be applied to all cases then on direct review or not yet final. Accord Griffith v. Kentucky, 479 U. S. 314 (107 SC 708, 93 LE2d 649) (1987).
262 Ga. at 586 (footnote omitted).
Foreshadowing the result in Harper, which was decided just eight months later, Taylor‘s footnote 2 added that the rule the Court was endorsing for criminal law decisions “is consistent with the long-standing rule applied in civil cases,” which is that
“a reviewing court should apply the law as it exists at the time of its judgment rather than the law prevailing at the rendition of the judgment under review, and may therefore reverse a judgment that was correct at the time it was rendered . . . where the law has been changed in the meantime and where such application of the new law will impair no vested right under the prior law.”
Id. at 586, n. 2 (quoting City of Valdosta v. Singleton, 197 Ga. 194, 208 (28 SE2d 759) (1944)).11
In 2006, however, without mention of Griffith or Taylor, this
If selective retroactivity is in fact the “juristic philosophy of this State,” I do not share it, and I do not understand how that philosophy can justify the contrary doctrines for new criminal law decisions under Taylor and for new civil law decisions under Findley. I instead share the juristic philosophy of the common law, under which “there was no authority for the proposition that judicial decisions made law only for the future” — as the U. S. Supreme Court candidly acknowledged in Linkletter, before departing from that tradition and starting courts down the road to today‘s morass. 381 U. S. at 622 (citing, among other things, 1 Blackstone, Commentaries 69 (15th ed. 1809)). See also Kuhn v. Fairmont Coal Co., 215 U.S. 349, 372 (30 SC 140, 54 LE 228) (1910) (Holmes, J., dissenting) (“Judicial decisions have had retrospective operation for near a thousand years.“).
My philosophy is, I believe, also that of Chief Justice John Marshall, who explained that “[i]t is emphatically the province and duty of the judicial department to say what the law is,” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (2 LE 60)(1803) — not to say what the law will be, at least for those litigants for whom we think that law is equitable. See also United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 110 (2 LE 49) (1801) (Marshall, C. J.) (applying on appeal a change in the law pursuant to a treaty ratified after the judgment in the trial court). Indeed, unlike the United States Constitution, the Georgia Constitution expressly provides that “Legislative acts in violation of this Constitution or the Constitution of the United States are void, and the judiciary shall so declare them.”
It may be argued that the majority is simply adhering to stare decisis in applying the Chevron Oil test that this Court adopted in Flewellen and re-approved in Findley. That argument was advanced by the dissenters in Harper as well. See 509 U.S. at 113 (O‘Connor, J., dissenting). But as Justice Scalia‘s concurring opinion in that case demonstrates in detail:
Prospective decisionmaking is the handmaid of judicial activism, and the born enemy of stare decisis. It was formulated in the heyday of legal realism and promoted as a “techniqu[e] of judicial lawmaking” in general, and more specifically as a means of making it easier to overrule prior precedent. B. Levy, Realist Jurisprudence and Prospective Overruling, 109 U. Pa. L. Rev. 1 (1960). Thus, the dissent is saying, in effect, that stare decisis demands the preservation of methods of destroying stare decisis recently invented in violation of stare decisis.
Harper, 509 U.S. at 105-106 (Scalia, J., concurring). Like the U. S. Supreme Court cases disapproved in Griffith and Harper, our cases endorsing selective retroactivity have no deep roots in our legal tradition, but instead reflect a jurisprudence that ““came into being‘” with Linkletter in 1965. Harper, 509 U.S. at 106 (Scalia, J., concurring).
If the “juristic philosophy of this State” continues to support selective and flexible retroactive application of our decisions, then I hope that I am in the vanguard of change. I do not agree that the substantive law can “shift and spring” according to the particular equities of individual parties’ claims, or that we may disregard current law and treat similarly situated litigants differently. Harper, 509 U. S. at 97. I would instead hold that, “[w]hen this Court applies a rule of [state] law to the parties before it,” as we do in this case, then “that rule is the controlling interpretation of [state] law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule.” Id. Because of this view, I respectfully can join only in the result of Division 3 of the majority opinion.
I am authorized to state that Presiding Justice Carley and
DECIDED MARCH 22, 2010.
Peters & Monyak, Jonathan C. Peters, Melissa B. Johnson, Carlock, Copeland & Stair, Thomas S. Carlock, Eric J. Frisch, for appellant.
Bondurant, Mixson & Elmore, Michael B. Terry, Sarah M. Shalf, Houck, Ilardi & Regas, Frank A. Ilardi, Rosser A. Malone, James D. Summerville, for appellees.
HUNSTEIN
CHIEF JUSTICE