FOURTH DIVISION

DILLARD, P. J.,

BROWN and PADGETT, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

https://www.gaappeals.us/rules

August 21, 2024

In the Court of Appeals of Georgia

A24A0378.THE MEDICAL CENTER OF CENTRALGEORGIA,

INC. et al v. TURNER et al.

DILLARD, Presiding Judge.

Allen Turner died due to complications from a surgery to remove a polyp from

his intestines. Following his death, his daughter—Norkesia Turner—sued Dr.

William Thompson; Dr. Heather Nolan; and their employer, the Medical Center of

Central Georgia, for medical malpractice and wrongful death.1 The case then

proceeded to trial, after which the jury rendered a verdict in Turner’s favor, awarding

her approximately $9,200,000 in damages—$7,200,000 ofwhich were noneconomic

1 Throughout the opinion, we refer to Allen Turner as “Allen,” Norkesia

Turner as “Turner,” the Medical Center of Central Georgia as “MCCG,” and Dr.

William Thompson; Dr. Heather Nolan; and their employer, MCCG, collectively as

“the appellants.”
damages for wrongful death.In challenging the jury verdict and denial of several posttrial motions,2

the appellants argue (1) the judgment should be reversed because

Turner failed to present sufficient evidence of causation; and (2) the jury’s award of

$7,200,000 in noneconomic damages for wrongful death improperly exceeded the

statutory limits on such damages in violation of OCGA § 51-13-1. For the following

reasons, we affirm.3

2 The trial court denied appellants’ post-trial motions for a new trial, judgment

notwithstanding the verdict, and to remit and amend the judgment.

3 Oral argument was held on February 6, 2024, and is archived on the Court’s

website. See Court of Appeals of the State of Georgia, Oral Argument, Case No.

A24A0378. (Feb. 6, 2022), available at https://vimeo.com/911637363. Shortly

thereafter, this case was transferred to the Supreme Court of Georgia because it

appearedto implicate that court’s exclusive jurisdiction over constitutional questions.

See Order in Case No. A24A0378 (Ga. App. Feb. 7, 2024). Our Supreme Court then

returned the case to this Court based on its determination that “[e]ven assuming that

[the] case raises a novel constitutional question, the trial court did not distinctly rule

on any such question . . . .” See Order in Case No. S24A0664 (Ga. Mar. 27, 2024).

Ordinarily, issues which “have not been ruled on by the trial court may not be raised

on appeal.” Ga. Dep’t ofNat. Res. v. Coweta Cnty., 261 Ga. 484, 485 (405 SE2d 470)

(1991). But here, the trial court did not rule on a novel constitutional question

because—as explained infra in Division 2—it found that, in Atlanta Oculoplastic

Surgery, P.C. v. Nestlehutt, 286 Ga. 731 (691 SE2d 218) (2010), the Supreme Court of

Georgia had already ruled on the constitutional question at issue.And suffice it to say,

we are bound by our Supreme Court’s decisions. See Whorton v. State, 321 Ga. App.

335, 339 (1) (741 SE2d 653) (2013) (noting that “vertical stare decisis dictates that we

faithfully adhere to the precedents established by the Supreme Court of Georgia”).

2
Viewing the evidence in the light most favorable to the jury’s verdict,4

the

record shows that in 2017, when he was 69 years old, Allen was referred to Dr.

Thompson by another physician for surgery to excise a “polyp in the very distal

duodenum.” Prior to surgery, Allen underwent an endoscopy, a colonoscopy, and a

“small [bowel] follow through series”;

5

 but neither a CT scan nor any other type of

imaging was conducted on Allen. On March 31, 2017, Drs. Thompson and Nolan

performed the operation, during which they unexpectedly discovered a cancerous

mass approximately 25 percent larger than a golf ball. As a result, the doctors

determined they needed to remove the mass, as well as the polyp. The area of

operation, then, became “much larger” with “much higher risk.” And according to

Thompson, it was not an option to remove only the polyp and leave the cancerous

mass to be excised in a subsequent procedure.

4 See Meadows v.Beam, 302 Ga. 494, 495 (1) (807 SE2d 339) (2017) (viewing the

evidence in an appeal from a jury verdict in the light most favorable to the prevailing

party); Preferred Women’s Healthcare LLC v. Sain, 367 Ga. App. 821, 822 (888 SE2d

599) (2023) (“On appeal following a jury trial, we view the evidence in the light most

favorable to the jury’s verdict.”).

5

 A “small bowel follow through” involves taking a series of x-rays.

3
As they continued the operation, Drs. Thompson and Nolan also encountered

a “large pulsing vessel near the aorta[,]” which was later determined to be the

superior mesentery artery (the “SMA”)—the primary vessel supplying blood to the

intestines. But at the time, the surgeons did not believe the large blood vessel was the

SMA because they were operating “far left” of where it is normally located. As it

turned out, Allen’s SMA was distorted and “in an abnormal place.” Additionally,

swelling in Allen’slymph nodes “affected [the surgeons’] ability to see things, which

further complicated [the] surgery.” And at some point during surgery, one of the

doctors clamped the SMA on both sides and cut it in half.

6

 After that, the “vascular

team” aided the surgeons in attempting to repair Allen’s SMA.

Ultimately, Drs. Thompson and Nolan were able to remove the polyp, the

cancerous mass, associated lymph nodes, and everything they would need in order for

the cancer to be evaluated. And while Allen survived the initial surgery, over the next

few weeks, he underwent numerous additional surgeries due to the severance of his

6 At the time of the surgery, Thompson was the surgeon of record and Nolan

was a head resident. They worked together on the surgery, but it is unclear from the

operative report which doctor cut the SMA.

4
SMA. Tragically, despite the additional surgeries, Allen died after suffering “multisystem failure.”

Thereafter, Turner sued MCCG, Dr. Thompson, and Dr. Nolan, asserting

claims of medical malpractice and wrongful death. Specifically, Turner alleged that

Thompson and Nolan’s negligence in treating Allen—which fell beneath their

professional standard of care—caused and contributed to his injuries and death.

Turner also claimed, inter alia, that a pre-surgery CT scan or MRI ofAllen’s abdomen

would have revealed the cancerous mass and whether the SMA was in “the zone of

their surgery.”According toTurner, the proper standard of care required the doctors

to identify and protect the SMA.And as required by law, Turner attached an affidavit

from a medical expert, Dr. Marvin Evans, to her complaint in support of the

allegations.7

7 See Jensen v. Yong Ha Engler, 317 Ga. App. 879, 881 (1) (733 SE2d 52) (2012)

(“[A] plaintiff is required to attach an OCGA § 9–11–9.1 expert affidavit to a

complaint raising a claim for medical malpractice against a medical doctor. Absent

compliance with the expert affidavit requirement, a medical malpractice claim is

subject to dismissal for failure to state a claim.” (citation omitted)); OCGA§ 9–11–9.1

(a) (“In any action for damages alleging professional malpractice . . . the plaintiffshall

be required to file with the complaint an affidavit of an expert competent to testify,

which affidavit shall set forth specifically at least one negligent act or omission claimed

to exist and the factual basis for each such claim.”); OCGA§ 9–11–9.1 (g) (11) (“[One

of] [t]he professions to which this Code section shall apply [is] . . . [m]edical doctors

5
The appellants filed a joint answer to Turner’s complaint, denying many of its

allegations and asserting several affirmative defenses.Discovery then ensued, and the

case ultimately proceeded to a jury trial. Following trial, the jury rendered a verdict

in favor ofTurner, awarding her (1) $618,853.59 formedical and funeral expenses; (2)

$1,443,300 for Allen’s pain and suffering; and (3) $7,216,500 in noneconomic

damages for wrongful death. The trial court subsequently entered judgment on the

verdict, adding $216.00 in favor of Turner for court costs. The appellants then filed

a motion and amended motion for a new trial and judgment notwithstanding the

verdict. They also filed a motion “to remit and amend the judgment,” arguing

that—as to her wrongful-death claim—the approximately $7,200,000 awarded for

noneconomic damages exceeded the $350,000 cap on such damages in OCGA § 51-

13-1. Following Turner’s responses and a hearing on the motions, the trial court

denied them all in separate orders. This appeal follows.

When a jury returns a verdict, it must be affirmed on appeal “if there is any

evidence to support it, and the evidence is to be construed in a light most favorable to

the prevailing party with every presumption and inference in favor of sustaining the

. . . .”).

6
verdict.”

8

Put another way, a jury verdict, “after approval by the trial court, and the

judgment thereon will not be disturbed on appeal ifsupported by any evidence, in the

absence of any material error of law.”

9 And we review a denial of a motion for a new

trial “according to this same standard.”

10 With this deferential standard of review in

mind, we turn to the appellants’ specific claims of error.

8Yash Sols., LLCv.New York Glob. ConsultantsCorp., 352 Ga.App. 127, 132 (1)

(834SE2d 126)(2019)(punctuation omitted); accordGreen v.Key Custom Homes, Inc.,

302 Ga. App. 800, 802 (1) (692 SE2d 56) (2010); see Meadows, 302 Ga. at 495 (1)

(noting that “our review of a jury’s verdict is for any evidence, andwe lack the power

to interfere with the jury’s finding if it is supported by any evidence”).

9 Yash Sols., LLC, 352 Ga.App. at 132 (1) (punctuation omitted); accord Green,

302 Ga. App. at 802-3 (1); see Greenway v. Sloan, 211 Ga. 775, 776 (1) (88 SE2d 366)

(1955) (“A verdict supported by any competent evidence which has the approval of

the trial judge will not be disturbed by this court unless errors of law appear.”).

10Yash Sols., LLC, 352 Ga.App. at 132 (1) (punctuation omitted); accord Green,

302 Ga.App. at 802 (1); see Patterson-Fowlkes v. Chancey, 291 Ga. 601, 602 (732 SE2d

252) (2012) (“In its reviewofthe denial of a motion for judgment notwithstanding the

verdict, this Court is to determine whether there is any evidence to support the jury’s

verdict. This same standard of appellate review is to be applied in the situation of the

denial of . . . a motion for new trial on general grounds. In so doing, this Court must

construe the evidence in a light most favorable to the prevailing party in the court

below.” (citations omitted)).

7
1. The appellants first argue the jury’s verdict should be reversed because

Turner failed to prove their allegedly negligent failure to perform a pre-surgery CT

scan caused Allen’s injuries and death. We disagree.

As our Supreme Court has explained, a person “professing to practice surgery

or the administering of medicine for compensation must bring to the exercise of his

profession a reasonable degree of care and skill.”

11

 Indeed, any injury resulting from

“a want of such care and skill shall be a tort for which a recovery may be had.”

12

Importantly, three essential elements to establish liability in a medical-malpractice

action have emerged from OCGA § 51-1-27: “(1) the duty inherent in the

doctor-patient relationship; (2) the breach of that duty by failing to exercise the

requisite degree of skill and care; and (3) that this failure be the proximate cause ofthe

injury sustained.”

13

11OCGA§ 51-1-27; accord Zwiren v.Thompson, 276Ga. 498, 499 (578 SE2d 862)

(2003).

12

 OCGA § 51-1-27; accord Zwiren, 276 Ga. at 499.

13 Zwiren, 276 Ga. at 499 (punctuation omitted); accord Reeves v. Mahathre, 328

Ga. App. 546, 548 (759 SE2d 926) (2014).

8
And because medical malpractice is a civil cause of action, a plaintiff “must

prove liability (i.e., duty, negligence, proximate cause) by a preponderance of the

evidence.”

14

In this respect, the Supreme Court of Georgia has explained that

“[p]roof by a preponderance simply requires that the evidence show that something

is more likely true than not.”

15

Similarly, many federal courts—including the Supreme

Court of the United States and the Eleventh Circuit—have “explained that the

burden of showing something by a ‘preponderance of the evidence’ simply requires

the trier of fact to believe that the existence of a fact is more probable than its

nonexistence.”

16

14 Zwiren, 276 Ga. at 499 (punctuation omitted); accord Knight v. Roberts, 316

Ga. App. 599, 603-04 (1) (730 SE2d 78) (2012).

15 White v. State, 307 Ga. 601, 607 (3) (b) (837 SE2d 838) (2020) (emphasis

supplied); see White v. Stanley, 369 Ga. App. 330, 335 (1) (893 SE2d 466) (2023)

(explaining that the Supreme Court ofGeorgia has provided a “straightforward[ ] and

brief definition” of preponderance of the evidence, holding that it “simply requires

that the evidence show that something is more likely true than not” (punctuation

omitted)).

16White, 369 Ga.App. at 335 (1) (punctuation omitted) (emphasis supplied); see

Concrete Pipe & Prod.of Cal., Inc. v. Constr. Laborers Pension Tr. for S. Cali., 508 U.S.

602, 622 (1)(a) (113 SCt 2264, 124 LEd2d 539) (1993); Metro. Stevedore Co. v. Rambo,

521 U.S. 121, 137 (II) n.9 (117 SCt 1953, 138 LEd2d 327) (1997); United States v.

Almedina, 686 F3d 1312, 1315 (III) (11th Cir. 2012); United States v. Trainor, 376 F3d

1325, 1331 (III) (A) (11th Cir. 2004).

9
Additionally, we have held that to recover in a medical-malpractice case based

on wrongful death, a plaintiff “must show not only a violation of the applicable

medical standard of care but also that the purported violation or deviation from the

proper standard of care is the proximate cause of the injury sustained.”

17 And

significantly, to satisfy this burden, the plaintiff must “use expert testimony because

the question of whether the alleged professional negligence caused the plaintiff’s

injury is generally one for specialized expert knowledge beyond the ken of the average

17

Pneumo Abex, LLC v. Long, 357 Ga. App 17, 18, 21 (1) (a) (849 SE2d 746)

(2020) (punctuation omitted); accord Knight, 316 Ga. App. at 603 (1); see Zwiren, 276

Ga. at 500 (“It is clear that a plaintiff cannot recover for medical malpractice, even

where there is evidence of negligence, unless the plaintiff establishes by a

preponderance of the evidence that the negligence “either proximately caused or

contributed to cause plaintiff harm.” (punctuation omitted)); Pruette v. Phoebe Putney

Mem’l Hosp., 295 Ga. App. 335, 338 (1) (671 SE2d 844) (2008) (acknowledging that

an action for wrongful death can be the basis for a medical-malpractice claim).

10
layperson.”

18 But questions regarding causation are “peculiarly questions for the jury

except in clear, plain, palpable and undisputed cases.”

19

Particularly relevant here, in Georgia, medical causation must “be proved to a

reasonable degree of medical certainty and cannot be based on mere speculation, and

the evidence must provide more than a mere or bare possibility that the alleged

negligence caused the plaintiff’s injury.”

20

So, the expert’s testimony “must showas

an evidentiary threshold that [his or her] opinion regarding causation is based, at the

18

Pneumo Abex, LLC, 357 Ga. App. at 21 (1) (a) (punctuation omitted); see

Zwiren, 276 Ga. at 499 (“In order to establish proximate cause by a preponderance of

the evidence in a medical malpractice action, the plaintiff must use expert testimony

because the question of whether the alleged professional negligence caused the

plaintiff’s injury is generally one for specialized expert knowledge beyond the ken of

the average layperson.”).

19Adams v.Piedmont Henry Hosp., Inc., 365Ga.App. 257, 266 (1) (878 SE2d 113)

(2022) (punctuation omitted); accord Pneumo Abex, LLC, 357 Ga. App. at 21 (1) (a);

see Atlanta Obstetrics & Gynecology Grp., P.A. v. Coleman, 260 Ga. 569, 570 (398 SE2d

16) (1990) (“[P]roximate cause must be determined by a jury except in plain and

undisputed cases.” (punctuation omitted)).

20

Pneumo Abex, LLC, 357 Ga. App. at 22 (1) (a) (punctuation and footnote

omitted); see Zwiren, 276 Ga. at 503 (“Georgia case law requires only that an expert

state an opinion regarding proximate causation in terms stronger than that of medical

possibility, i.e., reasonable medical probability or reasonable medical certainty.”);

Walker v.Giles, 276 Ga.App. 632, 638 (1) (624 SE2d 191) (2005) (“Medical causation

must be proved to a reasonable degree of medical certainty and cannot be based on

mere speculation.” (punctuation omitted)).

11
least, on the determination that there was a reasonable probability that the negligence

caused the injury.”

21 But a reasonable degree of medical certainty, “while an

acceptable means by which an expert may express the confidence he or she has in the

conclusion formed andthe probability that it is accurate, is not the required standard.”

22

To the contrary, Georgia law requires only that “an expert state an opinion regarding

proximate causation in terms stronger than that of medical possibility, i.e., reasonable

medical probability or reasonable medical certainty.”

23

Put another way, in providing an opinion in a medical-malpractice case, an

expert “need not use the magic words reasonable degree of medical certainty, but the

facts in the record must be sufficient to meet the legal standard embodied in those

21

Pneumo Abex, LLC, 357 Ga. App. at 22 (1) (a) (punctuation omitted); see

Zwiren, 276 Ga. at 499 (explaining, in a medical malpractice case, that the “expert’s

testimony must show as an evidentiary threshold that the expert’s opinion regarding

causation is based, at the least, on the determination that there was a reasonable

probability that the negligence caused the injury” (punctuation omitted)).

22

Pneumo Abex, LLC, 357 Ga. App. at 22 (1) (a) (punctuation omitted)

(emphasis supplied); accord Zwiren, 276 Ga. at 503.

23

Pneumo Abex, LLC, 357 Ga. App. at 22 (1) (a) (punctuation omitted)

(emphasis supplied); accord Zwiren, 276 Ga. at 503.

12
‘magic words.’”

24

Indeed, in presenting an opinion on causation, the expert is

“required to express some basis for both the confidence with which his conclusion is

formed, and the probability that his conclusion is accurate.”

25 There must be, then,

a “realistic assessment of the likelihood that the alleged negligence caused the injury

or death.”

26 And as we have previously explained, 

“perhaps nothing in medicine is

absolutely certain, but the lawintends that ifthe plaintiff’s medical expert cannot form

an opinion with sufficient certainty so as tomake a medical judgment, there is nothing

24

Pneumo Abex, LLC, 357 Ga. App. at 24 (1) (a) (punctuation omitted); see

Jackson v. Gershon, 251 Ga. 577, 579 (308 SE2d 164) (1983) (“Magic words alone, no

matter how often repeated, do not make a fact. Rather the factsin the record must be

sufficient to meet the legal standard embodied in the magic words. It is asking too

much of an expert witness to expect him to state point-blank about a professional

colleague, ‘He was negligent.’”); Anthony v. Chambless, 231 Ga. App. 657, 659 (1)

(500 SE2d 402) (1998) (“Although it is not necessary for the plaintiff’s experts to use

the magicwords ‘reasonable degree ofmedical certainty’in describing the decedent’s

prospect of survival with appropriate treatment, such prospect must be more than a

mere chance or speculation.” (punctuation omitted)).

25

Pneumo Abex, LLC, 357 Ga. App. at 24 (1) (a) (punctuation omitted); accord

Zwiren, 276 Ga. at 501.

26

Pneumo Abex, LLC, 357 Ga. App. at 24 (1) (a) (punctuation omitted); see

Zwiren, 276 Ga. at 501 (“In presenting an opinion on causation, the expert is required

to express some basis for both the confidence with which his conclusion is formed,

and the probability that his conclusion is accurate.” (punctuation omitted)).

13
on the record with which a jury can make a decision with sufficient certainty so as to

make a legal judgment.”

27

Turning to the instant case, the appellants argue Turner failed to present

sufficient evidence that the surgeons’failure to conduct a pre-surgery CT scan caused

the doctors to sever Allen’s SMA, which resulted in his death. This claim is belied by

the record.

As an initial matter, Turner’s expert—Dr. Evans—testified that Allen “died

as a result ofthe division of the [SMA] and all of the consequences that occurred after

that.”And the appellants’ expert, Dr.George Fuhrman, agreedthat “the fact that the

SMAwas severed and the lack of blood flowto the bowel [that] occurred . . .was what

ultimately led to [Allen’s] death . . . .” Evans also testified that it is outside the

applicable standard of care to cut and divide a blood vessel without identifying it. So,

it is undisputed that severance of Allen’s SMA during surgery caused his death.

Nevertheless, the issue before us is whether it is more likely than not that Drs.

Thompson and Nolan’s failure to conduct a CT scan prior to surgery would have

revealed the unusual location of the SMA, so the doctors could have avoided cutting

27

Pneumo Abex, LLC, 357 Ga. App. at 24 (1) (a) (punctuation omitted); accord

Zwiren, 276 Ga. at 501.

14
it.In this regard, Dr.Evans testified that, in his professional opinion, “[h]ad one done

a CT scan with the proper technique looking at blood vessels, then you would be able

to see the [SMA] in its course[ ] and whether it’s distorted or not, you would know

that by use of a [CT] scan.” Further, when asked whether he could say “within a

reasonable medical probability” that a CT scan would likely have prevented the SMA

from being cut in two, Evans testified that, even though it cannot be guarantied, the

chance of it happening would be “a lot less.”

28

In other words, Evans testified that if

a CT scan or any other imaging scan such as an MRI had been performed, “youwould

have know[n] that the anatomy is distorted and . . . you could avoid the trap of cutting

the blood vessel.” Given the foregoing, Evans’s expert testimony provided ample

evidence to establish that there was more than a “mere possibility” that Thompson

and Nolan’s failure to order a pre-surgery CT scan resulted in the severance of

Allen’s SMA, which caused his death. Indeed, Evans testified there was a medical

probability it did cause Allen’s death, which is certainly enough here.29

28

 (Emphasis supplied).

29 See Zwiren, 276 Ga. at 503 (explaining that, in a medical malpractice case,

Georgia caselaw “requires only that an expert state an opinion regarding proximate

causation in terms stronger than that of medical possibility, i.e., reasonable medical

probability or reasonable medical certainty” (emphasis supplied)); Evans v. Med. Ctr.

15
Importantly, Turner was not required to present expert testimony that the

expert was absolutely certain a CT scan would have prevented the doctors from

severing Allen’s SMA.30 As a result, to the extent there was conflicting testimony

“regarding causation, it is the province of the jury to decide which testimony is most

believable.”

31 And here, the jury evidently believed Dr. Evans’stestimony that a presurgery CT scan would likely—i.e., more likely than not—have prevented the doctors

of Cent. Ga., 359 Ga. App. 797, 800 (860 SE2d 100) (2021) (same); Knight v. Roberts,

316 Ga.App. 599, 604 (1) (a) (730 SE2d 78) (2012) (same).Andwhile appellants only

challenge whether there was sufficient evidence to establish causation, Dr. Evans also

testified that it was “outside the standard of care to cut and divide the vessel without

knowing what it is.” He also testified that the failure to identify the location of the

SMA was outside the standard of care whether it was in its normal location or pulled

to the side because it is such a “critical vessel” and “must be saved to save the

patient.”

30 See Zwiren, 276 Ga. at 501 (“[P]erhaps nothing in medicine is absolutely certain,

but the law intends that if the plaintiff’s medical expert cannot form an opinion with

sufficient certainty so as to make a medical judgment, there is nothing on the record

with which a jury can make a decision with sufficient certainty so as to make a legal

judgment.” (punctuation omitted) (emphasis supplied); Pneumo Abex, LLC, 357 Ga.

App. at 24 (1) (a)(same).

31 Mekoya, 360 Ga. App. at 462 (2); see Brooks v. Cellin Mfg. Co., 251 Ga. 395,

398 (306 SE2d 657) (1983) (noting that when experts offer conflicting testimony, it is

theprovince ofthe jury to decidewhich testimony is more believable); Fireman’s Fund

Ins. Co. v. Holder Constr. Grp., LLC, 362 Ga. App. 367, 373 (1) (a) (868 SE2d 485)

(2022) (“In the face of conflicting expert testimony, it [i]s the province of the jury to

decide which expert, if either, to credit.” (punctuation omitted)).

16
from severing Allen’s SMA. Under such circumstances, Turner presented sufficient

evidence to prove causation by a preponderance of the evidence.

32

2. Next, the appellants argue the jury’s award of approximately $7,200,000 for

noneconomic damages as to the wrongful-death claim must be remitted and amended

because it exceeded the $350,000 cap on noneconomic damages imposed by OCGA

§ 51-13-1. But this argument is foreclosed by binding Supreme Court of Georgia

precedent.33

32 See Coleman, 260 Ga. at 570-71 (holding that, as to causation, there was

evidence to support the jury’s verdict in favor ofthe plaintiffin amedical-malpractice

case when evidence showed that the doctor’s negligent administration of a hormone

shot resulted in the patient needing an abortion); Moore v. Singh, 326 Ga. App. 805,

810 (1) (755 SE2d 319) (2014) (holding that the trial court erred by granting a motion

for a directed verdict in a medical-malpractice case when there was testimony by

medical experts that the doctor breached the standard of care, resulting in a missed

diagnoses, which required surgery); Knight, 16 Ga. App. at 608 (1) (b) (holding

plaintiff presentedsufficient evidenceof causationinamedical-malpractice case when

expert testified, inter alia, doctor’s failure to timely diagnose the patient was a

contributing cause leading to her ultimate death).

33We thank the Georgia Hospital Association, Inc. and the Medical Association

of Georgia for their thoughtful amicus brief.

17
The jury rendered a verdict in Turner’s favor, awarding her, in relevant part,

$7,216,500 in noneconomic damages for her wrongful-death claim only.34 Thereafter,

appellants filed a motion “to remit and amend the judgment,” arguing these

noneconomic damages improperly exceeded the $350,000 limit on such damages

under OCGA § 51-13-1. And in denying the motion, the trial court ruled that, in

Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt,

35

our Supreme Court held the caps on

noneconomic damages in OCGA § 51-13-1 violated the constitutional right to a jury

trial.36 Further, the Nestlehutt Court noted that “[t]he general rule is that an

34 The damages awarded for Turner’s medical-malpractice claim were solely

economic, and those are not at issue in this appeal.

35

 286 Ga. 731 (691 SE2d 218) (2010).

36 See Ga.Const.Art.I, Sec.I, Para.XI(a) (providing that the right to a jury trial

“shall remain inviolate”); U.S.Const. amend.VII(“In [s]uits at common law, where

the value in controversy shall exceed twenty dollars, the right of trial by jury shall be

preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of

the United States, than according to the rules of the common law.”); see also Melson

v. Dickson, 63 Ga. 682, *686 (1) (1879 WL 2629) (1879) (holding that “an impartial

jury is the corner-stone of the fairness of trial by jury”); Jones v. Cloud, 119 Ga. App.

697, 706 (5) (168 SE2d 598) (1969) (same); Sec. & Exch. Comm’n v. Jarkesy, __ U. S.

__ (II) ((144 SCt 2117, 2128) (2024) (noting that “[t]he right to trial by jury is ‘of

such importance and occupies so firm a place in our history and jurisprudence that any

seeming curtailment of the right’ has always been and ‘should be scrutinizedwith the

utmost care’”) (citation omitted)); Morris S. Arnold, A Historical Inquiry into the

Right toTrial by Jury inComplexCivil Litigation, in The Bill of Rights:Original Meaning

18
unconstitutional statute is wholly void and of no force and effect from the date it was

enacted[,]”37and as to OCGA § 51-13-1, it found no reason to deviate from this

general rule.38

Relevant here, OCGA § 51-13-1 provides as follows:

In 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, regardless of the number of defendant health

care providers against whom the claim is asserted or the number of

separate causes of action on which the claim is based.

39

And in Nestlehutt, the Supreme Court of Georgia unambiguously held—without any

qualifications or exceptions—that “the noneconomic damages caps in OCGA §

and Current Understanding 399, 400 (Eugene W.Hickok, Jr. ed., 1993) (“That special

affection for the jury ought to be viewed as relevant not just to the fact that jury trial

was ‘preserved’ in the Constitution; it is relevant as well to interpreting the scope of

the actual provision, for it gives the right granted an aura and the Constitution a

meaning they would not otherwise have if the institution of jury trial had been

regarded more or less indifferently.”).

37 Nestlehutt, 286 Ga. at 738 (3) (punctuation omitted).

38

 See id. at 738 (2)-(3).

39

 OCGA § 51-13-1 (b) (emphasis supplied).

19
51–13–1 violate the right to a jury trial as guaranteed under the Georgia

Constitution.”

40 Those caps expressly include wrongful-death claims in the context of

a medical-malpractice action.

41

Nevertheless, appellants argue the $350,000 cap on noneconomic damages in

OCGA §51-13-1 appliestoTurner’swrongful-death claim because Nestlehuttinvolved

only a medical-malpractice claim. Specifically, they contend the Nestlehutt Court

would not have ruled that statutory caps on noneconomic damages in wrongful-death

cases are unconstitutional because that issue was not before it. But in our view,

appellants read Nestlehutt far too narrowly.

As the Supreme Court of Georgia has explained, Georgia’s constitutional jury

trial right “protects only those rights to a jury trial that existed in Georgia in 1798 [the

40 Nestlehutt, 286 Ga. at 731 (emphasis supplied); see supra n. 36. In a footnote,

our Supreme Court clarified that it expressed “no opinion as to subsection (f) of

OCGA § 51–13–1, which provides for periodic payment of future damages awards of

$350,000 or more in medical malpractice actions.” Nestlehutt, 286 Ga. at 731 (1) n.1.

But the allowance for periodic payments of damages in OCGA § 51-13-1 (f) is

irrelevant to the Nestlehutt Court’s express holding that all of the caps on damages

delineated in other sections of the statute are unconstitutional.

41 See OCGA§ 51-13-1 (providing for a $350,000 cap on noneconomic damages

in “any verdict returned or judgment entered in a medical malpractice action,

including an action for wrongful death . . .” (emphasis supplied)).

20
time at which our state adopted the Constitution of 1798].”

42And although Nestlehutt

did not involve a claim specifically characterized as one for wrongful death, our

Supreme Court described the legal right available in 1798 as claims involving the

negligence of a health care provider.43Suffice it to say, the wrongful-death claim in this

case involves negligence by a health care provider.44 And again, the Nestlehutt Court

expressly ruled the damages caps in OCGA § 51-13-1 are unconstitutional as applied

tomedical malpractice, which—by the explicit terms ofthe statute—includeswrongful

death.

45

Significantly, our Supreme Court did not exclude wrongful-death claims

42Taylor v.DevereuxFound., Inc., 316 Ga. 44, 58 (III) (A) (885 SE2d 671) (2023)

(emphasis supplied); see Nestlehutt, 286 Ga. at 734 (2) (a) (“Given the clear existence

of medical negligence claims as of the adoption of the Georgia Constitution of 1798,

we have no difficulty concluding that such claims are encompassed within the right

to jury trial under Art. I, Sec. I, Par. XI (a)”).

43 See Nestlehutt, 286 Ga. at 734 (2) (a) (“[A]t 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.” (emphasis supplied)).

44 See Taylor, 316 Ga. at 59 (III) (B) (“[T]he claim that was restricted by the

statute—a claim for non-economic damages in a tort case involving medical

negligence—was within the scope of the constitutional right to trial by jury in

Georgia.” (emphasis supplied)).

45 See supra note 41.

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involving medical malpractice in finding this aspect of the statute unconstitutional.

Simply put, setting aside wrongful-death claims unrelated to medical malpractice,46

the Nestlehutt Court held that causes of action involving medical malpractice existed

in 1798, and as a result, the caps on noneconomic damages in OCGA § 51-13-1 are

unconstitutional. And here, Turner’s wrongful-death claim unquestionably involves

medical malpractice, so the statutory cap on damages as to that claim violates her

inviolate right to a jury trial under the Georgia Constitution.47

46 We express no opinion as to whether a statute capping damages on a

wrongful-deathclaimunrelatedtomedical malpractice would be constitutional, asthat

is a novel question for our Supreme Court to answer. See Ga. Const. art. VI, § 6, ¶ II

(1) (“The Supreme Court shall be a court of review and shall exercise exclusive

appellate jurisdiction in . . . [a]ll cases involving the construction of a treaty or of the

Constitution of the State of Georgia or of the United States and all cases in which the

constitutionality of a law, ordinance, or constitutional provision has been drawn in

question.”); but see State v. Davis, 303 Ga. 684, 687-88 (1) (814 SE2d 701) (2018)

(“The Court of Appeals has limited jurisdiction [in cases such as this] . . . over cases

that involve the application, in a general sense, of unquestioned and unambiguous

provisions of the Constitution to a given state of facts and that do not involve

construction ofsome constitutional provision directly in question and doubtful either

under its own terms or under the decisions of the Supreme Court of Georgia or the

Supreme Court of the United States.” (emphasis supplied)).

47 The SupremeCourtof Georgia inNestlehutt made two unqualified statements

that all of the caps on damages in OCGA § 51-13-1 are unconstitutional. Specifically,

at the outset ofthe opinion, the Supreme Court noted that”[b]ased on [its] viewofthe

record and the applicable law, . . .the noneconomic damages capsin OCGA§ 51–13–1

violate the constitutional right to trial by jury . . . .”Nestlehutt, 286 Ga. at 731. And

22
For all these reasons, we affirm the jury’s verdict in favor of Turner.

Judgment affirmed. Brown and Padgett, JJ., concur.

later in the opinion, the Court reiterated that it “conclude[d] that the noneconomic

damages caps in OCGA § 51–13–1 violate the right to a jury trial as guaranteed under

the Georgia Constitution.”Nestlehutt, 286 Ga. at 738 (2) (b). Given that OCGA § 51-

13-1 includes wrongful death as a type of medical-malpractice claim, and the Supreme

Court in Nestlehutt did not exclude such claims from its holding, we are bound to

conclude that—like the cap on damages in medical-malpractice cases delineated in

OCGA § 51-13-1—the cap on wrongful-death claims asserted in such cases are

likewise unconstitutional. See Ga. Const. of 1983, Art. VI, Sec. VI, Par. VI (“The

decisions of the Supreme Court shall bind all other courts as precedents.”); State v.

Smith, 308 Ga. App. 345, 352 (707 SE2d 560 (2011) (“[T]he doctrine of stare decisis

prohibits this Court from ignoring the valid precedent of a higher court.”); State v.

Jackson, 287 Ga. 646, 658 (5) (697 SE2d 757) (2010) (“Stare decisis is an important

principle that promotes the rule of law . . . .”); see also Kurt T. Lash, Originalism,

Popular Sovereignty, andReverse Stare Decisis, 93 Va.L.Rev. 1437, 1454 (2007) (noting

that “[v]ertical stare decisis refers to the binding effect ofprecedent on lower courts,”

and that “[s]erious rule of law costs would follow if lower courts were free to ignore

precedent established by a higher court of appeal”).

23