The Supreme Courts of Illinois and Georgia recently ruled that tort reform statutes placing a cap on non-economic damages in medical malpractice cases are unconstitutional. Will Bardwell has been following the litigation. Here are his posts on the decisions in Georgia and Illinois. Bardwell links to the Georgia opinion. Here is the Illinois opinion.

The opinions reached their results for different reasons. The Illinois court ruled that the cap violates the separation of powers clause of the Illinois Constitution. Interestingly, the Mississippi Supreme Court recently cited the separation of powers clause in striking Governor Barbour’s attempted reduction of the judicial branch appropriations.

The Georgia court ruled that the cap violates the state’s constitutional right to trial by jury. I thought the Georgia opinion was the better read on the whole, but this quote from the Illinois opinion is pretty funny:

That ‘everybody is doing it’ [capping damages] is hardly a litmus test for the constitutionality of the statute.

I have no idea what the Mississippi Supreme Court will do when it has to decide the issue of the constitutionality of Mississippi’s caps. My gut feeling is that the Court will strike the caps, but I’m not sure what the basis for that feeling is and it could be wishful thinking.