By Alex Stein
Damage caps are widespread. A typical cap provision precludes medical malpractice victims from recovering more than a specified sum for pain, suffering and other noneconomic harms. These caps vary between $250,000 (as in California that might soon increase its cap by a referendum) and a $1,500,000-$500,000 scale (as in Florida). Some state supreme courts (e.g., Georgia, Illinois, and Wisconsin) voided the caps as unconstitutional, but many others (e.g., Alaska, California, Louisiana, Mississippi, Nebraska, Ohio and West Virginia) have upheld their constitutionality. In a few states (e.g., Florida and Texas), statutory caps had to be corrected to secure their alignment with state constitutions.
Damage caps are controversial. Some people believe that they help contain the costs and secure the affordability of medical care. Others believe that caps shortchange malpractice victims and weaken the deterrence of malpractitioners. People falling into the first group generally support tort reforms. People falling into the second group ardently oppose those reforms. For my middle-way position—that supports procedural tort reforms that block away unsubstantiated malpractice suits, while opposing damage caps and other substantive tort reforms—see here.
The plaintiffs bar expectedly tries to bypass the caps: see Catherine Sharkey’s important article that identifies the “crossover” dynamic: Facing caps on their clients’ noneconomic recovery, patients’ attorneys boost and vigorously pursue their clients’ claims for economic damages with the jurors’ blessing and approval.
Another, relatively recent, way of bypassing the cap is splitting the “occurrence” or “event” of medical malpractice into several events or occurrences. When successful, this strategy doubles, or more than doubles, the recoverable compensation amount. Continue reading