In May 2019, April S. Clark had surgery to remove an ovarian cyst, during which her bowel was perforated. Following the surgery, while under the care of Dr. Thomas Leigh, Dr. William Shirley, Dr. John Williams, and Dr. Thomas Woodyard, Clark experienced complications and ultimately died on June 27, 2019.
Clark’s husband, Charles Clark, and Clark’s daughter, April D. Clark (collectively “the Clarks”), brought claims for the wrongful death of Clark: Charles as the statutory wrongful death plaintiff, and April D. as administrator of Clark’s estate, for conscious pain and suffering and medical bills. The Clarks initially sued multiple parties, and several of them settled before trial. The defendants who went to trial participated in Clark’s post-operative care.
At a jury trial in July 2024, the Georgia medical malpractice wrongful death jury returned a verdict in the Clarks’ favor. The jury awarded $29,250,000 for the full value of Clark’s life, $2,500,000 for Clark’s pain and suffering, and $1,715,176 for medical expenses. The doctors brought a motion for new trial, which was later amended, and a motion to remit and amend the judgment. The trial court denied the doctors’ motion for new trial and granted the doctors’ motion to remit and amend the judgment, holding that OCGA § 51-13-1(b) applied to limit the wrongful death award, and reduced the $29,250,000 awarded to Charles for wrongful death to $350,000. The amount awarded to the estate for pain and suffering and medical expenses was unchanged.
OCGA § 51-13-1
In 2005, the General Assembly enacted OCGA § 51-13-1 (the “cap statute”). Ga. L. 2005, pp. 1, 16–17, § 13. The cap statute provides that certain noneconomic damages awards in medical malpractice suits are limited to a specified amount. Subsection (b) of OCGA § 51-13-1 provides that “[i]n 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[.]”
In 2010, the Georgia Supreme Court in Nestlehutt held that the cap statute’s noneconomic damages cap as applied to pain and suffering and loss of consortium damages in medical malpractice actions violated Paragraph XI(a) of the Georgia Constitution (“The right to trial by jury shall remain inviolate, except that the court shall render judgment without the verdict of a jury in all civil cases where no issuable defense is filed and where a jury is not demanded in writing by either party. In criminal cases, the defendant shall have a public and speedy trial by an impartial jury; and the jury shall be the judges of the law and the facts.”). Nestlehutt, 286 Ga. at 731, 738.
The Georgia Supreme Court in Nestlehutt examined common law history pertaining to medical malpractice claims and the damages that were available in such claims. The Georgia Supreme Court ultimately concluded “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.” The noneconomic damages at issue in Nestlehutt were for pain and suffering and loss of consortium.
In the Clark case the Georgia Supreme Court was deciding, it stated: “[I]n the light of Nestlehutt, the Clarks’ appeal is resolved under ordinary principles of statutory construction, because the cap statute is not capable of being applied in a case like this one, where a jury’s verdict includes noneconomic damages for a cause of action to which the right to trial by jury applies. Because we resolve this case under the plain text of the cap statute in the light of Nestlehutt, we need not and do not decide most of the constitutional questions raised by the parties.”
After holding that “the trial court did not abuse its discretion in allowing the doctors to raise the application of the cap statute for the first time in their post-trial motions,” the Georgia Supreme Court stated “we conclude that history and precedent support the idea that the right to trial by jury has a substantive component and is not merely a procedural right to have juries, rather than judges, decide questions of fact that may then be rendered irrelevant by statute. A merely procedural right to a jury trial would be hollow and illusory … Accordingly, because the right to a jury trial is a “principal bulwark of English and American liberties,” and history supports the view that the right was substantive in part, we are unpersuaded that Nestlehutt was wrongly decided merely because much of the historical focus has been on the procedural aspects of the right or on the allocation of rules between judge and jury.”
“Thus, history and precedent both provide support for Nestlehutt’s more substantive view of the jury trial right than is proposed by the defendants. Some of us find this history and precedent sufficiently compelling to conclude that Nestlehutt was correct. Some of us are less certain about that. But we all agree on this: the defendants have not shown that Nestlehutt was clearly wrongly decided. And nothing has changed since we decided Nestlehutt other than the makeup of this Court. That alone is not a legitimate reason to reconsider precedent. We thus adhere to Nestlehutt’s holding that the right to trial by jury has a substantive component that the legislature may not invade.”
“[W]e conclude that the cap statute’s damages cap is not capable of being applied in a case like this one, where a jury’s verdict includes noneconomic damages for a cause of action to which the right to trial by jury applies (the estate’s medical malpractice claim for pre-death pain and suffering) — even if that verdict also includes damages for a cause of action to which the right allegedly does not attach (the wrongful death claim that is the subject of the defendants’ argument) … Whether or not there is a constitutional right to a jury trial for a wrongful death claim, applying this statutory cap here to all of the noneconomic damages violates the core holding of Nestlehutt, because the pain and suffering damages cannot constitutionally be capped. There is no mechanism in the statute for applying that cap on an individual basis to only certain claimants or causes of action, such as the wrongful death claim in this case. To do so would ignore the plain text of OCGA § 51-13-1(b) … That is the fundamental problem with the defendants’ request to apply the cap to the verdict like the one in this case, which includes some noneconomic damages for the estate’s predeath injury claim.”
“The jury awarded the Clarks $2,500,000 in damages for pain and suffering (to April D. Clark, as administrator of Clark’s estate) and $29,250,000 in damages for the full value of the decedent’s life (to Charles Clark, as the statutory wrongful death plaintiff), totaling $31,750,000. Without taking the right to trial by jury into account, OCGA § 51-13-1(b)’s cap would apply to that total, because by its terms, the statute’s cap applies to “any verdict returned or judgment entered,” and it operates on (and “limit[s]”) the “total amount recoverable by a claimant,” which, it makes clear, is the total of all noneconomic damages awarded for all medical malpractice causes of action brought by all parties (whom the statute treats as “a single claimant” for purposes of applying the cap). So, to apply the cap, the trial court would “limit” the $31,750,000 awarded for both wrongful death and pain and suffering damages to $350,000. However, the trial court may not apply that cap in the light of Nestlehutt, because applying the statute would also limit the $2,500,000 awarded for pain and suffering — damages to which Nestlehutt held that the right to trial by jury attaches — and that would violate the Clarks’ right to trial by jury under the Georgia Constitution. So in this case, even assuming that the statute’s cap could constitutionally be applied to damages awarded by a jury for wrongful death, applying the aggregate cap to the lump sum of noneconomic damages, as the statute plainly requires, would necessarily limit some damages awarded by a jury in violation of the right to trial by jury.” (emphasis added).
The Georgia Supreme Court concluded in its June 16, 2026 Opinion: “In sum, the cap statute’s damages cap applies using a single operative mechanism: combine all the noneconomic damages awarded to all the parties into a single number and then limit that number to $350,000. No statutory text permits doing so only for some parties and some damages. So, in a case like this — where noneconomic damages to which the right to trial by jury applies are awarded as part of a jury’s verdict in a medical malpractice action — there is simply no way to apply the statute’s cap on noneconomic damages as written without violating the right to trial by jury. And the defendants’ proposed revisions to the statute to permit such operation would require us to rewrite statutory text in excess of our constitutional power. So the cap statute’s damages cap may not be constitutionally applied to the verdict in this case.”
Source Clark v. Leigh, M.D., No. S26A0349.
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