The Georgia Court of Appeals on Wednesday transferred an appeal that would determine whether wrongful death medical-malpractice claims should have non-economic damages caps to the state Supreme Court.

In August 2023, the defendant-appellants, represented by attorneys from Hall Booth Smith and Huff Powell Bailey, appealed a $9.2 million Bibb County verdict, asking the trial court for a new trial and to remit a $7.2 million punitive damages award, arguing it is subject to a $350,000 damages cap established by the state's 2005 tort reform package.

The state Supreme Court had previously ruled the damages cap as unconstitutional in Atlanta Oculoplastic Surgery v. Nestlehutt, reasoning that "noneconomic damages caps violate the right to a jury trial." The defendant-appellees now argue that the Supreme Court only declared the statute unconstitutional in medical-malpractice claims brought by a patient-plaintiff, not in wrongful-death claims.

At oral argument, however, Presiding Judge Stephen Dillard was primarily concerned with whether this was for the intermediate court to decide at all. The brunt of Dillard's questions for both parties focused on whether the case should be transferred to the Supreme Court. The high court's reason for repealing the damages cap in personal injury cases was that it violated the constitutional right to a jury, making any exceptions to that decision an interpretation of constitutional law.

Read the defendant-appellant brief.

R. Page Powell Jr. of Huff, Powell & Bailey. (Courtesy photo)

The plaintiff-appellees, represented by Caleb Walker of the McArthur Law Firm contented that if the Nestlehutt opinion controls, as they argue it does, then the Court of Appeals has the limited jurisdiction to apply the precedent set by it. Therefore, if the intermediate court agrees with their argument, there is no wrongful-death damages cap, and the case would not need to be transferred to the Supreme Court.

Walker also noted that this was one of two enumerations of error made by the defendant-appellees and, if they prevail in appealing the other, the court would not even reach the question of Nestlehutt.

The defendant-appellants contended that the case shouldn't be transferred for different reasons. Dillard asked them if they felt this would be an issue of first impression.

"I'm having a hard time seeing how Nestlehutt doesn't cover wrongful death to the extent that it's based on medical negligence or medical malpractice, so I'm open to hearing what you have to say," Dillard said to defendant-appellant Page Powell of Huff Powell Bailey. "My concern with Nestlehutt is it does not read as a narrow opinion. … And there are different types of wrongful death cases—not just medical malpractice or medical negligence."

"I think you've homed right in on what we need to talk about today," Powell replied. "The way I have phrased it in my mind is: What's the scope of Nestlehutt? What is the proper interpretation of that decision?"

Read the plaintiff-appellee brief.

Powell continued: "To address your point about it being read in a sweeping way, I can't disagree with that, but it's really just one phrase in the whole case that the appellees rely upon. … There are so many reasons why that phrase should not be interpreted in the sweeping manner that it reads."

Powell argued that Nestlehutt didn't remove damage caps in wrongful-death cases because it was not a wrongful death case and both the intermediate and high courts "have repeatedly recognized that wrongful death actions are separate causes of action," so " they have to be treated separately." Moreover, because wrongful death actions didn't exist at the time Georgia's constitution was drafted, they do not benefit from the same right to a jury trial that was enshrined in Nestlehutt.

"What is your response to opposing counsel that wrongful death is a cause of action?" Dillard asked the plaintiff-appellees. "Does that matter or does the substance of the cause of action matter?"

"Our position is the cause of action is medical malpractice," Walker replied. "A wrongful death statute is simply a statutory permission through a certain party, sometimes the person's estate of next of kin, to recover damages on behalf of the deceased party. … At least in some circumstances prior to the 1798 [Constitution], general damages for a decedent were recoverable and therefore any cap on wrongful death damages could not apply, regardless of Nestlehutt."

The case is Medical Center of Central Georgia v. Turner, No. A24A0378, in the Georgia Court of Appeals. Trial counsel included Kathy McArthur of the McArthur Law Firm and Tracy Dellacona of the Dellacona Law Firm. Judge Trenton Brown and Senior Judge Andrew Fuller also heard the case.

Read the reply brief below.

Editor's note: This article has been updated to correctly reflect the nature of damages at issue.