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What is a damage cap, and how will it affect my medical malpractice case?

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Q:

What is a damage cap, and how will it affect my medical malpractice case?

A:

If you have suffered from an injury or illness as a result of medical malpractice, you may be planning to file a lawsuit to seek compensation for a variety of factors, including pain and suffering. You have the right to take legal action against the doctor in question and perhaps the hospital or clinic where they work, but you need to be aware that your state may have a damage cap in place that will limit the amount of restitution that you are eligible to receive.

How Does a Damage Cap Work?

The majority of states have instituted a damage cap on non-economic damages. In other words, you will be restricted in your ability to sue for pain and suffering, anxiety, loss of enjoyment of life, discomfort and psychological problems that are caused by medical malpractice. For example, California’s non-economic damages cap is set at $250,000.

Some states, including Michigan, have a sliding scale in place for non-economic damages. This means that the type of damage that you have suffered will have a big impact on the amount of money that you may be able to receive as a result of your malpractice suit. As of 2013, Michigan residents are able to sue for non-economic damages ranging from $433,300 to $774,000.

What is an Umbrella Cap?

In most cases, states either have a damage cap for non-economic damages or no cap at all. However, there are a few exceptions that you should be aware of. A prime example is that individuals who will be filing a medical malpractice case in Colorado will be subjected to an umbrella cap of $1 million. This cap is meant to prevent the total accumulation of non-economic and economic damages from exceeding a $1 million award. In special cases, a jury can award more than $1 million in Colorado, but this is unusual.

Indiana is another state that has an overall damage cap. Regardless of the type of injury or illness that someone suffers from due to the negligence of a healthcare professional, Indiana residents cannot sue for more than $1.25 million in total damages. Although umbrella caps or damage caps that apply to every factor of a medical malpractice case are rare, it is vital to determine what type of cap, if any, is in place in your state.

Are Damage Caps Unconstitutional?

Some states have determined that having a damage cap violates the constitutional rights of injured patients. The Illinois Supreme Court made this decision in 2010, as did the Georgia Supreme Court. On the contrary, the Louisiana Supreme Court has upheld the state’s umbrella damage cap of $500,000 multiple times. Therefore, the question of whether or not these caps are unconstitutional will be determined on a state-by-state basis.

Individuals who believe that the cap in their state is unconstitutional may consider appealing the capped decision on their case in order to work their way up to the state’s Supreme Court. Please note that there is never a guarantee that the Supreme Court will consent to hear a case, and you are also likely to spend a lot of time and money fighting for a potentially bigger settlement.

Working with a Damage Cap

Your attorney should be able to advise you about any applicable state damage cap laws that will impact your case. In most states, a cap against non-economic damages will not prevent you from seeking a much larger overall jury award. Therefore, even if you can only ask for $300,000 in non-economic damages, you may still be eligible for a combined settlement that is well over seven figures.

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