Turner Decision and Med Mal Caps in Wrongful Death Claims

Think that the Georgia Supreme Court’s June decision in Turner has resurrected medical malpractice caps from the dead? Not so fast.

After the Georgia Supreme Court’s Turner decision this June, defendants are now arguing that the caps still apply in wrongful death cases.

Their argument: Nestlehutt doesn’t apply to wrongful death claims because such claims didn’t exist at common law, and there’s no constitutional jury trial right for them. Therefore, they say, the cap is valid in that context.

But Turner didn’t say that. The Court simply held that Nestlehutt didn’t decide the issue and directed lower courts to apply Nestlehutt’s analytical framework.

Here are several reasons why the cap still can’t apply to wrongful death claims:

1. Wrongful death damages are analogous to pain and suffering. Even Turner acknowledges that a “perfect match” to 18th-century claims isn’t required and that a “suitable analog” can suffice. Wrongful death damages are derivative of the underlying personal injury claim and include the same types of non-economic losses, like loss of enjoyment of life.

In Bibbs v. Toyota, the Supreme Court confirmed this similarity: “the sorts of damages recoverable in wrongful death actions are substantially the same as the kinds of damages that may be recovered in personal injury actions.”

2. 1798 isn’t the only relevant date. Georgia’s 1868 Constitution, enacted after the state rejoined the Union after the Civil War, also guaranteed a right to trial by jury. By that time, wrongful death claims had existed in Georgia since 1850.

3. The statute isn’t severable. Because the cap is unconstitutional as applied to personal injury claims, courts cannot salvage the statute by severing the unconstitutional portion. Doing so would require rewriting the law, which is something only the legislature can do.

4. Equal protection. Capping damages only when the patient dies, but not when they survive with the same harm, creates an arbitrary and irrational distinction.

Ultimately, we’ll have to see what Georgia’s appellate courts do with this. But if you handle medical malpractice cases in Georgia, there are still multiple reasons to believe the cap cannot apply to wrongful death claims either. What are your thoughts? Join the conversation with me on LinkedIn.