Does Georgia cap pain and suffering damages in a malpractice or wrongful death case?

No. The Georgia Supreme Court struck down the legislature's cap as unconstitutional, and non-economic damages have no statutory ceiling here. The standard that replaced it is the enlightened conscience of an impartial jury, which means twelve people hear the evidence, have to reach a unanimous decision, and set the figure themselves based on what they were shown at trial.

What did Senate Bill 68 change in 2025?

It introduced a bifurcated trial structure for some malpractice cases, meaning the jury decides whether there was a breach of the standard of care before hearing what the case is worth. And it changed the collateral source rule to allow a jury to hear the actual, reduced amount a medical bill was paid down to rather than only the original billed amount. Neither change restored a cap on non-economic damages.

Why does the collateral source rule change matter to someone who has always carried health insurance?

Because a jury can now hear the reduced amount your insurer actually paid rather than only the original billed amount, which can make your case, if it's built around medical bills, look smaller than it once would have, even though you did the responsible thing by carrying coverage all along. Someone who never carried insurance shows the jury the full number.

Could the Georgia legislature bring back a cap on non-economic damages?

Only through a constitutional amendment, not an ordinary statute, because the Georgia Supreme Court held in Nestlehutt that a legislative cap violates the state constitutional right to trial by jury. Elected officials haven't tried to revisit that question in the years since the original cap was struck down, though other tort reform has passed in that window.

How do I even find out whether my family has a case worth this discussion?

The first step is a free consultation with a medical malpractice attorney. Sometimes that talk is short, because the facts clearly don't support a claim. Other times it leads to a deeper review with a qualified expert. Either way, finding out costs you nothing, and it's the only way to know whether the no-cap standard described in this chapter will ever actually apply to your case.

Contents

Chapter 09

Why Georgia Puts No Price Ceiling on a Life

9 min read7 pages

I explain this history to every malpractice client I take on, because twenty-year-old politics still shapes what your case can be worth today.

There are a lot of reasons Georgia is the way it is. The main one is that Georgians, and the officials we elect, decided we don't want to put a cap on somebody's life. We don't want to put a cap on somebody's pain and suffering. And we trust the jury system.

So this chapter is about who gets to decide what your loss was worth. It isn't you, and it isn't me, and since 2010 it hasn't been the legislature either. It's twelve people who will never meet you before the day they're asked.

We trust the jury system. It's in the Constitution: the right to trial by jury. And in Georgia, we've decided as a community that someone's life is valuable, the value of someone's pain and suffering is also valuable, and you shouldn't cap something that's only going to benefit insurance companies and large corporations.

Andrew Conn — on why Georgia has no cap on non-economic damages

01 / 05

The number the legislature picked

They tried this once. Back in 2005, the Georgia legislature passed a law capping non-economic damages in medical malpractice cases at $350,000, no matter how severe the harm or how old the person it happened to.

In 2010, the Georgia Supreme Court struck that cap down as unconstitutional in Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt. Our Supreme Court did the right thing. They held that you cannot take that decision away from a jury with an ordinary statute, because the right to trial by jury is guaranteed by the Georgia Constitution, and taking it from twelve Georgians would violate our constitutional right. You'd need a constitutional amendment, which requires a two-thirds vote.

I don't always agree with our appellate courts, and I'm sure that doesn't surprise them. But we have a very good appellate court system here that I think is genuinely trying to get it right, and on this one they definitely got it right.

So what governs your case instead is the enlightened conscience of an impartial jury. Twelve people hear the evidence, they have to agree unanimously, and they decide what the loss was worth. That's a hard thing to ask of twelve strangers, and it's a hard thing for us as lawyers to quantify too. It is still better than a number a committee funded by insurance companies picked in advance, years before your injury, without knowing your name or anything about what you lost.

02 / 05

A number with a child attached to it

I can tell you exactly what that cap would mean, because I'm carrying the case right now.

An eight-month-old boy. His mother took him to an emergency room and to a doctor's office four days in a row, telling them something was wrong with her child. Nobody took her seriously. That little boy passed away because of the negligence of several people who saw him.

If that 2005 law were still on the books, the folks who voted for it would be saying that this child's life was worth $350,000. Quite frankly, I think that's disgusting, particularly given how much we say we value the jury system. Twelve strangers heard the evidence. They're the ones who should be answering the question.

That family isn't reading about an abstraction, and neither are you if you picked this book up because of something that happened to someone in your house. A cap doesn't feel like policy when the number has your child's name attached to it.

03 / 05

What Senate Bill 68 changed, and what it left alone

Georgia passed tort reform in 2025, Senate Bill 68. Insurance lobbyists got it through, and it was geared mostly toward auto collision cases. There was nothing in the bill specific to medical malpractice.

There are pieces of it that reach malpractice claims anyway. One is bifurcation, which is now required at times. In a bifurcated trial you try the did-the-doctor-do-something-wrong phase first, and only if you win that do you move to the how-much-is-it-worth phase with the same jury. The idea, at least in theory, is to keep a jury from being moved by a tragic damages story before deciding whether anybody was negligent. It's a real change and it changes how a case gets tried.

It does not touch the ceiling on what you can recover, because there isn't one. Nothing in Senate Bill 68 restored a cap on non-economic damages. Nothing in it disturbed what the Supreme Court held in Nestlehutt. In my own practice, has it made a significant difference to how I build a malpractice case? Probably not. It has wide-ranging implications for other kinds of cases.

04 / 05

The collateral source change, and who it punishes

The other piece is the collateral source rule, and it deserves more attention than its name gets.

Here's how it used to work. Say you've been paying health insurance premiums for twenty or thirty years and you never used them for a wreck. Then somebody smashes into you and you're looking at $150,000 or $200,000 in medical bills. Your health insurer pays a fraction of that, maybe a hundred thousand on a two-hundred-thousand-dollar bill, because that's what being insured buys you.

Before Senate Bill 68, you could show a jury the two-hundred-thousand-dollar bill, and the defense was not allowed to stand up and say your insurance company covered it. You got the benefit of having been responsible for twenty or thirty years.

Due to Senate Bill 68, the rules changed. Now the defense gets to tell the jury that even though the bill says $200,000, the insurer only paid $100,000, and their goal is to have a jury decide your case isn't worth as much as it used to be. So if you've done the responsible thing and paid premiums for decades, you get a reduction shown to the jury. If you never carried insurance at all, you show them the full undiscounted number.

Read that twice, because it's backwards. The insurance lobby took Georgians' rights away, and the people it lands hardest on are the ones who did exactly what they were told to do and responsibly complied.

It's one more reason I don't anchor your case to a medical bill total. A strategy built on the size of a bill is more exposed to that argument than it used to be, and your bill was never where the value of your case lived anyway.

05 / 05

Why the fight isn't finished

I've served on the Georgia Trial Lawyers Association executive committee for something like ten or eleven years now, which is most of my practice. Part of why is that the fight over this didn't end the day Nestlehutt came down.

Insurers and the industries funding their lobbying didn't stop wanting a cap. They lost one particular fight. Senate Bill 68 is what happens when they win a different one, and you are the person who pays for that at trial.

Some of that work happens through the Civil Justice PAC, the political arm of the same trial lawyers' association, which exists specifically to support candidates who won't vote to reopen this question. I'd rather say that plainly than pretend a book about Georgia law can sit above the politics that write Georgia law. The no-cap rule in this chapter does not defend itself.

And there's a quieter reason it has held up this long. Jurors already extend real sympathy to a doctor or a nurse sitting at the defense table, even when they believe a mistake happened. By and large they do not want to punish a physician. That reluctance is a genuine check on runaway verdicts, and it operates long before anybody says a number out loud. Putting a statutory cap on top of a jury that's already inclined toward restraint doesn't prevent an injustice. It only guarantees that the rare case where twelve people heard everything, gave the provider every benefit of the doubt, and still concluded the harm was severe and inexcusable, gets handled exactly like a case a fraction as bad.

Georgia's absence of a statutory cap on non-economic damages — A scale with an open top rather than a fixed ceiling, illustrating that Georgia caps no damages in an ordinary negligence case.

Common Questions

Does Georgia cap pain and suffering damages in a malpractice or wrongful death case?: No. The Georgia Supreme Court struck down the legislature's cap as unconstitutional, and non-economic damages have no statutory ceiling here. The standard that replaced it is the enlightened conscience of an impartial jury, which means twelve people hear the evidence, have to reach a unanimous decision, and set the figure themselves based on what they were shown at trial.
What did Senate Bill 68 change in 2025?: It introduced a bifurcated trial structure for some malpractice cases, meaning the jury decides whether there was a breach of the standard of care before hearing what the case is worth. And it changed the collateral source rule to allow a jury to hear the actual, reduced amount a medical bill was paid down to rather than only the original billed amount. Neither change restored a cap on non-economic damages.
Why does the collateral source rule change matter to someone who has always carried health insurance?: Because a jury can now hear the reduced amount your insurer actually paid rather than only the original billed amount, which can make your case, if it's built around medical bills, look smaller than it once would have, even though you did the responsible thing by carrying coverage all along. Someone who never carried insurance shows the jury the full number.
Could the Georgia legislature bring back a cap on non-economic damages?: Only through a constitutional amendment, not an ordinary statute, because the Georgia Supreme Court held in Nestlehutt that a legislative cap violates the state constitutional right to trial by jury. Elected officials haven't tried to revisit that question in the years since the original cap was struck down, though other tort reform has passed in that window.
How do I even find out whether my family has a case worth this discussion?: The first step is a free consultation with a medical malpractice attorney. Sometimes that talk is short, because the facts clearly don't support a claim. Other times it leads to a deeper review with a qualified expert. Either way, finding out costs you nothing, and it's the only way to know whether the no-cap standard described in this chapter will ever actually apply to your case.

Chapter Reflection

A number picked in advance can't know anything about your loss. That was the reasoning that took the number away and handed the decision back to twelve people who would at least have to sit and listen first. It's also the reason I'd rather spend a trial on what a family lost than on a bill total. The bill is the part a legislature can legislate. The rest of it is the part only a jury can weigh. That same instinct, trusting the judgment closest to the facts over a fixed formula, is behind a decision I made about how I run this practice, and it costs me money every year.