dissenting.
I respectfully disagree with the majority’s conclusion, formulated in Divisions 1 and 2, that the trial court was without power or authority to amend the pretrial order and was required to enter a judgment which conformed to the unmodified pretrial order.311 part company with the majority because I believe that the trial court had the authority to exercise its sound discretion and amend the pretrial order sua sponte or in response to a motion, and that this Court should be hesitant to interfere with the result of the trial court’s exercise of its discretion in that regard. Gilbert v. Meason, 145 Ga. App. 662 (1) (244 SE2d 601) (1978).32
Some additional facts, documented by the record and previously reported in the Court of Appeals’ certification of the case to this Court (223 Ga. App. 520 (478 SE2d 598) (1996)) are important to resolution of this issue. The jury returned its $3.5 million verdict in favor of Mrs. Phillips, was polled, and was excused. The attorney for DHR immediately stated his belief that the pretrial order required that the jury’s verdict be written down since it was in excess of $1 million, in response to which Mrs. Phillips’ counsel stated the possibility of attacking the constitutionality of the statute which would require such a diminution of the verdict.33 When the trial court mentioned that a motion to modify the pretrial order could be made “sometime during the trial,” counsel for Mrs. Phillips requested that the right to request modification be preserved, as they wished to check into the issue of attacking the constitutionality of the application to this case of the Tort Claims Act’s statutory cap on damages. The trial court suggested that Mrs. Phillips’ counsel look into modification of the pretrial order, and stated that the trial court “may modify it in . . . the interest of justice.” After receiving letter briefs on the *325issue and holding a telephonic conference with the attorneys, the trial court entered judgment for Mrs. Phillips in the amounts awarded by the jury. In so doing, the trial court implicitly modified the pretrial order to permit a constitutional attack upon the application of the statutory damages cap, and implicitly decided the constitutional issue in favor of Mrs. Phillips. The appellate record contains nothing from the trial court elucidating the rationale for the entry of judgment. However, in the brief filed by Mrs. Phillips in the trial court in support of her motion to supplement the record, as well as in the transcript of the hearing on the motion, Mrs. Phillips’ counsel stated that the trial court had telephonically ruled that “it was persuaded by [Mrs. Phillips’] arguments and that the full judgment would therefore be entered.” Neither DHR nor the trial court has even taken exception to either the oral or the written statement.
A trial court has inherent power to sua sponte modify a pretrial order to prevent manifest injustice. Dumas v. Beasley, 218 Ga. 349, 352 (128 SE2d 59) (1962). It is unquestioned that a trial court also has statutory power to modify the pretrial order at trial to prevent manifest injustice. OCGA § 9-11-16 (b). Without saying so expressly, the majority has stripped the trial court of its inherent power and hobbled its statutory authority by implicitly holding, without explanation or definition, that the pretrial order cannot be modified after the verdict has been returned but before the entry of judgment.34 Where, as here, the issue of the constitutionality of a law arises as a result of the verdict returned by the factfinder and a party raises the constitutional issue at the earliest practicable moment,35 the trial court must have the discretion to modify the pretrial order to permit the argument and resolution of the issue of law pertaining to the entry of judgment. It is implicit from the entry of judgment that the trial court exercised its discretion to do just that. Contrary to the majority’s assertion, neither party’s ability to litigate the merits of the issue is unfairly compromised when the issue is one of law — *326DHR’s ability to argue the constitutionality of the statute was not unfairly impaired by permitting argument to be made. The only problem, as far as DHR is concerned, is that its arguments failed to persuade the trial court that the statute was constitutional.
I believe that the trial court did not abuse its discretion in determining that manifest injustice would result if the trial court failed to examine the constitutional issue before entering judgment. After all, the jury had concluded that DHR was responsible for Ms. Phillips’ death, and that Ms. Phillips’ estate and her mother had proven suffering and damage which justified compensation in the amount of $3.5 million. OCGA § 50-21-27 (a) barred entry of a judgment in the amount of the verdict, and it was the trial court’s duty, when a party questioned the constitutionality of that statute, to exercise its inherent authority to modify the pretrial order to prevent manifest injustice by permitting a legal discussion of the issue. DHR’s attorney cannot claim unfair surprise since he was aware from shortly after the return of the verdict that the statute’s constitutionality was in question and that the trial court saw modification of the pretrial order as the means for getting the issue before the court, and he wrote letter briefs and argued telephonically in support of the statute. See Echols v. Bridges, 239 Ga. 25, 27 (235 SE2d 535) (1977), where the court determined that the trial court did not abuse its discretion when “ ‘there can be no viable claim of surprise or unfairness in the court’s consideration of the issue involved in the ruling. . . .’ ” The result of the majority’s resolution of the case at bar is a classic example of manifest injustice: a possibly unconstitutional judgment is ordered entered by the appellate court on the ground that the trial court had no discretion to permit the parties to argue an issue of law which became pertinent when the jury returned its verdict. This is not a liberal construction of the pretrial order which permits “the consideration of all questions fairly within the ambit of the contested issues” (Echols v. Bridges, supra, 239 Ga. at 27), and it is contrary to the spirit of the Civil Practice Act that cases be decided on their merits, thereby avoiding decisions based on other considerations. Ambler v. Archer, 230 Ga. 281, 286 (196 SE2d 858) (1973).
The appellate courts are unlikely to find an abuse of discretion where a trial court fails to modify a pretrial order without a motion. Gilbert v. Meason, supra, 145 Ga. App. 662 (1). I suggest that the appellate courts should be just as unwilling to find an abuse of discretion when the trial court does modify the pretrial order. Because the majority rules otherwise, I must respectfully dissent.
I am authorized to state Justice Thompson joins in this dissent.
*327Decided July 16, 1997 — Reconsiderations denied July 30, 1997. Thurbert E. Baker, Attorney General, William C. Joy, Senior Assistant Attorney General, Kevin M. O’Connor, Assistant Attorney General, Sell & Melton, John A. Draughon, for appellant. Walbert & Mathis, David E Walbert, Charles A. Mathis, Jr., David A. Webster, for appellees.The pretrial order stated:
Under the State Tort Claims Act OCGA § 50-12-29, the maximum amount of damages is $1,000,000.00, and if the jury awards an amount in excess of $1,000,000.00, said amount shall be written down by the Court. Plaintiff may not seek or recover punitive damages under the Act.
The majority opinion is internally inconsistent: it holds that the trial court was without power to modify the pretrial order and that the parties were bound thereby, yet it then modifies the pretrial order by awarding Mrs. Phillips $2,000,000 instead of the $1,000,000 maximum amount of damages set forth in the pretrial order. I would suggest that if the pretrial order can be modified by the appellate'court twenty-one months after the judgment was entered, surely the trial court had the power to modify the pretrial order nine days after the verdict and prior to entry of judgment.
OCGA § 50-21-27 (a) provides that the Act, which became effective July 1, 1992, “shall operate retroactively so as to apply to tortclaims or causes of action which accrued on or after January 1, 1991.” This wrongful death action accrued on February 2, 1992, when Lisa Phillips died. Clark v. Singer, 250 Ga. 470, 471 (298 SE2d 484) (1983). (“A cause of action for wrongful death caused by another arises in the spouse and/or children or parents of the deceased upon the death of such deceased”)
In Echols v. Bridges, 239 Ga. 25, 26 (235 SE2d 535) (1977), the court interpreted the statutory temporal limitation of “at trial” to include all aspects “through the completion of trial.” I suggest that, when the issue sought to be added is one of law, a trial is not complete until judgment is entered.
Had Mrs. Phillips’ counsel suggested before the return of the verdict that application of the statute requiring that a verdict in excess of $1,000,000 be written down to $1,000,000 was unconstitutional, he would have been silenced with a ruling that his argument was premature since Mrs. Phillips was not hurt and her rights were not affected by the statute until a verdict in excess of $1,000,000 was returned. See Bo Fancy Productions v. Rabun County Bd. of Commrs., 267 Ga. 341 (478 SE2d 373) (1996), where this Court stated that the only prerequisite to attacking the constitutionality of a statute “ ‘is a showing that it is hurtful to the attacker. [Cit.]’ ” See also Keenan v. State, 263 Ga. 569 (1) (436 SE2d 475) (1993), where this Court ruled that a party had no standing to challenge the constitutionality of a statute unless the party’s rights were affected by it.