Medical malpractice lawyers, victims’ advocacy groups, doctors (and their lobbyists), and insurance companies have produced a heretofore unprecedented spate of editorials on medical malpractice reform in the last few months. Even I’m bored with it.
But a recent editorial in Salon is a little different because the message—that medical malpractice tort reform is not the answer—comes from a pediatrician. The doctor methodically and concisely attacks the premises behind the tort reform movement, including the idea that there is a pandemic of frivolous medical malpractice lawsuits:
Instead of a swamp of frivolous lawsuits, what the data shows is a system that functions. Insubstantial claims tend to collapse, while the medical industry usually opts to pay off injured patients instead of going to trial. The doctors and the insurers choose to fight to win when they think they can, and when there is enough money at stake, and usually do win.
The fact that it is coming from a doctor does not make it so. But it lends a different authenticity.
Caps Are Coming Down
Many courts are finding damage caps unconstitutional In 2017, the First District Court of Appeals in Wisconsin struck down Wisconsin’s medical malpractice cap for noneconomic damages, ruling the state’s $750,000 limit is unconstitutional. The court found something my torts professor pointed out to us 25 years ago. A medical liability cap denies equal protection for the most severely injured patients who are harmed the most. Why are we punishing those of us who have been injured the most?
Florida went down the same path. In June 2017, the Florida Supreme Court kicked its medical malpractice damage cap in personal injury cases to the curb, ruling their Draconian $350,000 cap is unconstitutional.
Tennessee struck down its cap in 2015.
In 2018, a state district court judge found North Dakota’s cap unconstitutional.
- Caps in all 50 states
- Malpractice cap in Maryland
- Cap Loss (tough loss at the Maryland high court — but the court and the facts have evolved since then)
List of States Where Cap Is Unconstitutional (2018 Update)
List of States Where With Caps
These states have caps in some form or another. Most are noneconomic damage but some states like Indiana and Virginia have a hard cap on damages.
Is Maryland’s Cap the Next to Fall?
Is Maryland next? Our law firm argued on appeal overturning Maryland cap after a $10 million verdict. The battle is uphill but we think Maryland will eventually come to its senses on the cap.