Non-economic damages in Georgia medical malpractice

Non-economic damages compensate for losses such as pain, mental anguish, and impairment, and their measure is the “enlightened conscience of an impartial jury”. Georgia’s malpractice cap statute is not enforceable as written after Nestlehutt and Clark v. Leigh, as the caps page explains. The bigger recent change is how lawyers may talk about money. Senate Bill 68 limits when and how counsel may put a number on these losses.

What falls in this category

O.C.G.A. § 9-10-184(a)(2), as revised in 2025, defines noneconomic damages as all bodily injury or wrongful death damages other than economic damages, “including, but not limited to, damages for physical or emotional pain, discomfort, anxiety, hardship, distress, suffering, inconvenience, physical impairment, mental anguish, disfigurement, loss of enjoyment of life, loss of society and companionship, loss of consortium, injury to reputation, and in wrongful death cases, the nonpecuniary elements of the full value of life”.

Under § 51-12-2(a), general damages “may be recovered without proof of any amount”. Evidence of the harm is still required. The dollar figure is what the jury supplies.

What counsel may and may not say about the number

Point in the case	Rule in § 9-10-184
Jury selection and evidence	No argument on worth or monetary value, and no "specific amount or range of amounts" in the jury's hearing, (b)
Voir dire	Counsel may ask if jurors could return a verdict with no damages or above "some unspecified amount", if the evidence supports it, (e)
After the close of evidence	Argument on value allowed at the party's first opportunity to argue damages, (c)(1)
Content of that argument	"rationally related to the evidence", and no reference to "objects or values having no rational connection to the facts proved", (c)(1)
Concluding argument	Only if counsel argued value in the opening argument, and it cannot be a different value, (c)(2)
A violation	The court "shall take remedial measures", (d)

Section 9 of Senate Bill 68 makes the two exceptions for its negligent security and medical expense sections, so this provision reaches pending cases, unless that would be unconstitutional. The Court of Appeals applied this language in a fall case, Wal-Mart v. Medders, A26A1599 (2026), where comparisons to an expert’s fee and to near minimum wage rates led to a new trial. The court didn’t ban per diem arguments as such. The same anchoring rule is covered for car cases on non-economic damages in car accident cases.

The split trial option

Section 51-12-15, also added in 2025, lets any party elect by written demand before the pretrial order to try fault first. If the jury finds a defendant at fault, the trial restarts at once with the same judge and jury on compensatory damages. Evidence and argument in the first phase are limited to fault and percentages. That limit doesn’t keep every injury out of the first phase. In Transcontinental Carriers v. Bennett, A26A1643 (2026), a truck case, the Court of Appeals found no abuse of discretion where a plaintiff detailed his injuries and their extent in the first phase, because proving fault requires proving the injuries and that the breach caused them. Evidence on the amount of compensation waited for the second phase. How that applies in a malpractice trial is a question for counsel. Under subsection (b), the court may reject the election on motion only in two situations: an alleged sexual offense where testifying twice would likely cause serious distress, or an amount in controversy below $150,000.

How the harm gets proved

These kinds of evidence come in, and each adds something different:

• the patient’s own testimony about daily life, pain, and what has changed;
• family and friends who saw the person before and after;
• treating physicians on the course of the condition and prognosis;
• a mental health professional, if the harm includes a diagnosed condition;
• photographs of scarring or disfigurement, and records of the treatment course.

For example, imagine a patient whose delayed cancer treatment included months of added chemotherapy. The records show the added treatment. The testimony shows what those months cost. The defense can respond with evidence of prior limits or of how well the patient has adapted, and credibility matters to both.

Past verdicts are not a measure here. A number from another case says nothing about this patient’s evidence, and the post-trial history can change it. Claims that juries apply a set multiple of economic damages have no statutory basis, and § 9-10-184 now limits how a lawyer can frame the figure.

Court review of the amount

Section 51-12-12(a) says the question of damages is ordinarily for the jury, and that a court should not interfere unless the award is “clearly so inadequate or so excessive as to be inconsistent with the preponderance of the evidence”. Under (b), the trial court may order a new trial on damages only, or it may condition that new trial on a party’s refusal to accept an amount the court sets. Subsection (c) allows only one grant of a new trial on this ground. The statute’s test is the one to use, and a “shock the conscience” phrase is not the Code’s wording.

Limits that come from something other than a cap

Three other rules can affect recovery.

• A claim against the State has a per-person limit under § 50-21-29, as pre-suit notice requirements explains in the state setting.
• Fault apportionment reduces recovery under § 51-12-33, and it applies to noneconomic damages as to the rest.
• Section 51-1-29.5 makes liability harder to prove in emergency care, which can prevent any award.

Death and consortium

In a death case, the survivors’ claim is for the full value of the life under § 51-4-2, which has its own measure. An estate can also claim what the person went through before death, including conscious pain, under § 9-2-41. The difference is explained on wrongful death and survival actions.

Loss of consortium belongs to a spouse. It has its own four-year period under § 9-3-33, and the claim has its own limits, described on loss of consortium claims.

What the rule asks of a claim

The rule asks for evidence of what this injury did to this person’s life, and for a figure argued, if at all, at the permitted time and tied to that evidence.

Sources

• Transcontinental Carriers v. Bennett, A26A1643
• Official Code of Georgia Annotated, November 2022 public release: §§ 9-2-41, 9-3-33, 50-21-29, 51-1-29.5, 51-4-2, 51-12-2, 51-12-12, 51-12-33
• Senate Bill 68, as passed (2025): Sections 1, 8, 9(b)
• Wal-Mart Stores East v. Medders, A26A1599

This page was last reviewed in November 2026 for general information. Laws and court decisions can change after that date. It is not legal advice and does not create an attorney-client relationship.