Which States Have Malpractice Damage Caps in 2018?

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.

Certainly, the fact that it is coming from a doctor does not make it so. But it certainly 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.

List of States Where Cap Is Unconstitutional (2018 Update)

Florida
Illinois
New Hampshire
North Dakota
Oregon
Utah
Washington
Wisconsin

List of States Where With Caps

Arkansas
California
Colorado
Hawaii
Idaho
Indiana
Kansas
Louisiana
Massachusetts
Maryland
Mississippi
Missouri
Montana
Nebraska
New Mexico
North Carolina
Oklahoma
Ohio
Oregon
South Carolina
South Dakota
Tennessee
Texas
Utah
Virginia
West Virginia
Wisconsin

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.

 

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