Beginning in the early 1970s, health care providers and professional liability
insurance carriers lobbied state and federal legislative bodies to place
a maximum limit of the amount of damages that could be awarded in medical
malpractice cases. While these efforts met with some success at the state
level, they were less effective in limiting damages awarded in cases involving
Medicare, Medicaid, Veteran’s care, and care provided to members
of the armed forces.
With the enactment of the Affordable Care Act (“Obamacare”)
and the more recent moves to “reform” federally-subsidized
medical insurance, tort reform advocates have renewed their efforts to
place limits of the amount of certain types of damages in medical malpractice
lawsuits. In today’s post our medical malpractice lawyer will first
review the limited successes of the tort reform movement.
Damages in Medical Malpractice Law
In medical malpractice cases, two broad types of damages may be awarded
to the successful plaintiff: actual (“economic”) damages and
Actual damages are those damages that are directly related to the actual
costs associated with an act of medical malpractice These damages typically
include hospital and physician bills, the costs of therapy and rehabilitation,
and loss of income that is directly related to an injury. In short, economic
damages are those damages that can have a precise “dollar and cents”
cost affixed as evidenced by expenses that are ultimately documented by
bills and other financial documents.
As opposed to actual damages, non-economic damages represent costs that
are difficult (if not impossible) to measure in dollars and cents. Included
within non-economic damages are pain and suffering experienced by the
victim as well as psychological trauma experienced by both the victim
and the victim’s family.
Included within the definition of non-economic damages are “punitive”
or “exemplary” damages, which may be awarded to both punish
a negligent health care provider as well as to deter other providers from
making similar decisions that could harm other patients.
The Problem of State Laws and Damage Caps
As of this writing, 33 states and territories have enacted some form of
damage caps in medical malpractice lawsuits. When taken as a group, the
average cap on damages is just over $600,000. Even among the states that
have enacted damage caps, there is no uniformity on what type of damages
are capped and at what amount. For example, Texas has a non-economic damages
cap of $250,000 that can be raised to a maximum of $500,000 if more than
one defendant is involved. In Texas’ neighboring state of Oklahoma,
damages are capped at $350,000 regardless of the number of defendants.
One of the major “selling points” of malpractice tort reform
has been the twin arguments that 1) damage caps reduce the amount of damages
that are awarded and thus reduce the cost of delivering health care and
2) that the savings from these reduced costs can be used to fund more
health care providers in medically-underserved areas. An analysis of both
claims reveals them to be patently false!
Numerous studies have shown that the average out-of-court malpractice case
settlement is about $425,000 and the average jury award is just over $1
million. There was no statistical difference in awards made in damage
cap states versus those states that do not have damage cap laws.
As to the claim that damage caps help to improve access to medical care,
how long have you had to wait for a non-emergency doctor’s appointment
if you live in a state with mandatory damage caps?
Medical Malpractice Lawyers Understand State Laws Limiting Damages
If you suspect that you may have been the victim of medical malpractice,
your first step should be to contact a malpractice lawyer who has experience
with the courts in the area where the suspected act of malpractice occurred.
In many cases these attorneys will be able to negotiate a settlement with
the health care provider and thus allow you to at least pay for your own
health care rather than be placed at the mercy of public health care physicians
In closing, if you were injured by an act of medical malpractice you should
contact a medical malpractice lawyer to arrange a review of your case
and an estimate of the amount of damages to which you might be entitled.
Do not let yourself be intimidated by lawyers from a malpractice insurance
carrier or by threats that your case is only worth a relatively small
settlement. In either event, an experienced malpractice lawyer will know
the best way for you to assert your rights and secure the settlement to
which you are entitled.