ATRA :: Noneconomic Damages Reform

Noneconomic Damages Reform

Issue Brief and State Reforms | Reforms by Date Enacted | Constitutionality of Reforms

NONECONOMIC DAMAGES REFORM

Damages for noneconomic losses are damages for pain and suffering, emotional distress, loss of consortium or companionship, and other intangible injuries. These damages involve no direct economic loss and have no precise value. It is very difficult for juries to assign a dollar value to these losses, given the minimal guidance they customarily receive from the court. As a result, these awards tend to be erratic and, because of the highly charged environment of personal injury trials, excessive.

PROBLEM: The broad and basically unguided discretion given juries in awarding damages for noneconomic loss is the single greatest contributor to the inequities and inefficiencies of the tort liability system. It is a difficult issue to address objectively because of the emotions involved in cases of serious injury and because of the financial interests of plaintiffs’ lawyers.

ATRA’S POSITION: ATRA supports a $250,000 limit on the award of noneconomic damages.

OPPOSITION: The personal injury bar’s argument against limiting noneconomic damages – that a jury’s award of noneconomic damages should not be reduced to an amount determined by legislators because a jury can determine on a case-by-case basis to what extent to compensate a plaintiff for harm suffered – fails to address the difference between noneconomic damages and economic damages, and fails to take into account the intangibility of noneconomic damages awards. A limit on noneconomic damages limits the amount a plaintiff can recover for pain and suffering, emotional distress, loss of consortium or companionship, and other intangible injuries for which it is difficult to assign a dollar amount. Such a limit does not affect the amount a plaintiff can recover for economic damages, which include past and future medical bills, expected lost wages, and other tangible damages.

STATE REFORMS

ALABAMA

Medical Liability Reform: Wrongful Death: (1987). Limits damages in wrongful death actions to $1 million.

Noneconomic Damages Reform: (1987). Limits the award of noneconomic damages to $400,000. The statute setting a $400,000 limit on noneconomic damages awards in health care liability actions violated the right to a jury trial and equal protection provisions of the State Constitution. Moore v. Mobile Infirmary Association, 592 So. 2d 156 (Ala. 1991).

ALASKA

Medical Liability Reform/Noneconomic Damages Reform: S.B. 67 (2005). Lowers the limit on noneconomic damages in medical liability cases to $250,000. In the most severe cases involving disfigurement, severe permanent physical impairment, and wrongful death, the limit on noneconomic damages is $400,000. The previous limit on noneconomic damages ranged from $400,000 to $1 million, depending on the severity of the injuries.

Noneconomic Damages Reform: SB 337 (1986). Establishes a $500,000 cap on noneconomic damages for cases not involving physical impairment or disfigurement.

Noneconomic Damages Reform: HB 58 (1997): Alaska Stat. § 9.17.010. Limits noneconomic damages awarded for most single injuries or deaths to the greater of $400,000 or the injured person’s life expectancy in years multiplied by $8,000. Limits noneconomic damages for personal injuries involving permanent physical impairment or severe disfigurement to the greater of $1,000,000 or the person’s life expectancy in years multiplied by $25,000. The reform did not violate the right to a jury trial, the right to equal protection, or the right to substantive due process in the State or Federal Constitutions, the separation of powers doctrine, or the right of access to the courts or ban on “special legislation” in the State Constitution). Evans v. State, 2002 WL 1998141 (Alaska Aug. 30, 2002).

CALIFORNIA

Medical Liability Reform: Noneconomic Damages Reform: The Medical Injury Compensation Reform Act (MICRA): (1975): Cal. Civ. Code § 333.2. Limits noneconomic damages in medical liability cases to $250,000. The $250,000 limit on noneconomic damages in medical liability actions does not violate the equal protection or due process provisions of the State or Federal Constitutions. Fein v. Permanente Medical Group, 695 P.2d 665 (Cal.), appeal dismissed, 474 U.S. 892 (1985).

COLORADO

Noneconomic Damages Reform: S.B. 115 (2004). Limits noneconomic damages in breach of contract claims by specifying that noneconomic damages may only be recovered for breach of contract when recovery of such damages is specifically authorized in the contract that is the subject of the claim. The only other circumstance under which noneconomic damages may be recovered is for any first-party claim brought against an insurer for breach of an insurance contract and that the defendant willfully and wantonly breached the contract.

Medical Liability Reform: Noneconomic Damages Reform: HB 03-1007 (2003). Limits noneconomic damages in medical malpractice cases to $300,000.

Medical Liability Reform: Noneconomic Damages Reform: SB 143 (1988): Colo. Rev. Stat. § 13-64-302. Limits the total award of damages to $1,000,000, of which no more than $250,000 can be for noneconomic damages. The $250,000 limit on noneconomic damages in medical liability actions is constitutional. Scholz v. Metropolitan Pathologists, P.C., No. 92‑8A277, Co. Sup. Ct., April 26, 1993.

Noneconomic Damages Reform: SB 67 (1986). Limits the award of noneconomic damages to $250,000, unless the court finds justification by “clear and convincing” evidence for a larger award not to exceed $500,000. The $250,000 limit on noneconomic damages in medical liability actions is constitutional. Scholz v. Metropolitan Pathologists, P.C., No. 92‑8A277, Co. Sup. Ct., April 26, 1993.

FLORIDA

Automobile Liability Reform: HB 775 (1999). Limits the liability of an owner or lessor of an automobile to $100,000 per person or $300,000 per incident for bodily injury, and $50,000 for property damage. Limits the liability of an uninsured or under-insured person to $500,000 for economic damages only. The reform does not apply in cases involving commercial vehicles used in the ordinary course of business and the transportation of hazardous materials.

Medical Liability Reform: Noneconomic Damages Reform: CS SB 2-D (special session 2003). Provides for emergency room practitioner limits on noneconomic damages of $150,000 per claimant, with an aggregate of $300,000. Provides for emergency room facility limits on noneconomic damages of $750,000 per claimant, with an aggregate of $1.5 million and full setoffs for practitioner payments. Provides for non-practitioner limits on noneconomic damages of $750,000 per claimant, with an aggregate for all claimants. Provides for practitioner limits on noneconomic damages of $500,000 per claimant, with an aggregate limit for all claimants of $1 million, but no single practitioner shall be liable for more than $500,000 regardless of the number of claimants.

Medical Liability Reform: Noneconomic Damages: CS/SB6 (1988): Fla. Stat. §§ 766.207, 766.209. Limits noneconomic damages in medical liability cases to $250,000 in arbitration. Limits noneconomic damages in medical liability cases to $350,000, if the plaintiff refuses to arbitrate. Sets no limit on noneconomic damages in medical liability cases, where neither party demands binding arbitration, or where the defendant refuses to arbitrate.

Noneconomic Damages Reform: SB 465 (1986). Limits noneconomic damages to $450,000. The limit on noneconomic damages is unconstitutional. Smith v. Department of Insurance, 507 So.2d 1080 (Fla. 1987).

GEORGIA

Medical Liability Reform/Noneconomic Damages Reform: S.B. 3 (2005). Limits noneconomic damages to $350,000 per healthcare provider, with an overall aggregate limit of $1.05 million.

HAWAII

Noneconomic Damages Reform: SB S1 (special session) (1986): Sunset provision (SB 1529) enacted in 1991: Haw. Rev. Stat. §§ 663-8.7, 663-10.9(2). Limits noneconomic damages for physical pain and suffering to $375,000.

IDAHO

Noneconomic Damages Reform: HB 92 (2003). Idaho Code Ann. § 6-1603. Limits the award of noneconomic damages in personal injury cases to $250,000.

Noneconomic Damages Reform: HB 574 (1990). Removes the 1992 sunset to the $400,000 limit on non-economic damages enacted in 1987.

Noneconomic Damages Reform: SB 1223 (1987): Idaho Code Ann. § 6-1603. Limits the award of noneconomic damages to $400,000. Provides a sunset in June 1992. The $400,000 cap on noneconomic damages in personal injury and wrongful death actions did not violate the right to jury trial, constitute special legislation, or violate the separation of powers doctrine under the State Constitution. Kirkland v. Blaine County Medical Center, 4 P.3d 1115 (Idaho 2000).

ILLINOIS

Medical Liability Reform: Noneconomic Damages Reform: SB 475 (2005). Limits noneconomic damages in medical liability cases to $500,000 per physician and $1 million per hospital.

Noneconomic Damages Reform: HB 20 (1995). Limits noneconomic damages to $500,000. The reform violates the State Constitutional prohibition against special legislation and separation of powers provision of the State Constitution. Best v. Taylor Machine Works, Inc., 689 N.E.2d 1057 (Ill. 1997).

INDIANA

Medical Liability Reform: Damages Limits: Ind. Code Ann. § 34-18-14-3. Limits the total amount recoverable in medical liability cases to $750,000 for acts that occur before July 1, 1999, and $1,250,000 for acts that occur after July 1, 1999. Requires any amount awarded in excess of these limits to be paid from the Patient’s Compensation Fund.

IOWA

Noneconomic Damages Reform: HF 2525 (2000); Iowa Code § 613.20. Prohibits a motorist, passenger or pedestrian from collecting noneconomic damages for injuries sustained in an automobile crash caused during the commission of a felony.

KANSAS

Noneconomic Damages Reform: HB 2692 (1988): Kan. Stat. Ann. §§ 60-1902, 60-1903. Limits noneconomic damages to $250,000. The Kansas Health Care Provider Insurance Availability Act provision setting a $250,000 limit on noneconomic losses in health care liability actions did not violate the right to a jury trial or due process provisions of the State Constitution. Samsel v. Wheeler Transport Services, Inc., 789 P.2d 541 (Kan. 1990).

Noneconomic Damages Reform: HB 2692 (1987). Limits the award of damages for pain and suffering to $250,000.

LOUISIANA

Medical Liability Reform: Damages Reform: La. Rev. Stat. Ann. §40:1299.42. Limits total damages in medical liability cases to $500,000, excluding future medical care. The statute setting a $500,000 limit on general damages in medical liability cases did not violate the equal protection provisions of the State or Federal Constitutions. Butler v. Flint Goodrich Hospital of Dillard University, 607 So. 2d 517 (La. 1989).

MAINE

Medical Liability Reform: Noneconomic Damages Reform: Me. Rev. Stat. Ann. tit. 24-A § 4313. Limits noneconomic damages against a carrier of a health plan to $400,000.

MARYLAND

Noneconomic Damages Reform: SB 558 (1986): Md. Cts. & Jud. Pro. §11-108. Limits the award of noneconomic damages to $500,000. The Court of Special Appeals of Maryland upheld the constitutionality of the noneconomic damages limit in Potomac Electric Co. v. Smith, 79 Md. App. 591, 558 A.2d 768 1989. The $350,000 limit on noneconomic damages in personal injury actions did not violate the equal protection or right to jury trial provisions of the State Constitution. Murphy v. Edmonds, 601 A.2d 102 (Md. 1992).

Noneconomic Damages Reform: Uninsured Drivers: HB 714 (2001); Amended Md. TRANSPORTATION Code Ann. § 17-107. Provides that an individual driving a motor vehicle that is not covered by insurance is considered to have waived the right to recover noneconomic damages under specified circumstances.

Noneconomic Damages Reform: Public Entity Lawsuits: SB 237 (1987). Limits the award of noneconomic damages in public entity lawsuits to $200,000 per person and $500,000 per incident.

Noneconomic Damages Reform: Wrongful Death: SB 283 (1994): Md. Cts. & Jud. Pro. §11-108. Limits noneconomic damages in wrongful death actions to $500,000. In cases where there are two or more beneficiaries, the limit is $700,000. The reform somewhat counters the effect of the Streidel decision, which held that Maryland's $350,000 limit on noneconomic damages did not apply in wrongful death actions.

MASSACHUSETTS

Medical Liability Reform: Noneconomic Damages Reform: Mass. Gen. Laws Ann. Ch. 231 § 60-H. Limits noneconomic damages in medical liability cases to $500,000, unless the claimant can show “a substantial or permanent loss or impairment of a bodily function or substantial disfigurement.”

MICHIGAN

Medical Liability Reform: Noneconomic Damages: SB 270/H 2 (1993): Mich. Comp. Laws § 600.1483. Limits the award of noneconomic damages in medical liability cases to $280,000 for ordinary occurrences, and $500,000 if the claimant has suffered brain damage, spinal cord damage, damage to the reproductive system which prevents procreation, or injury to cognitive ability that leaves the plaintiff unable to live alone.

MINNESOTA

Noneconomic Damages Reform: SB 2078 (1986). Limits the award of damages for loss of consortium, emotional distress, or embarrassment to $400,000. The $400,000 limit on damages for embarrassment, emotional distress, and loss of consortium did not violate “certain remedy” clause of the State Constitution. Schweich v. Ziegler, Inc., 463 N.W.2d 722 (Minn. 1990).

MISSISSIPPI

Medical Liability Reform: Noneconomic Damages Reform: H.B. 13 (special session) (2004); Amended Miss. Code Ann. § 11-1-60. Establishes a hard cap of $500,000 on noneconomic damages in medical liability cases (the $500,000 cap that was passed during a special session in 2002 contained an escalator clause which would have raised the cap to $750,000 in 2011 and $1 million in 2017).

Noneconomic Damages Reform: H.B. 13 (special session); Amended Miss. Code Ann. § 11-1-60. Limits the recovery of noneconomic damages in all civil cases, with the exception of medical liability actions, to $1 million.

Medical Liability Reform: Noneconomic Damages Reform: H.B.2 (special session) (2002); Amended Miss. Code Ann. § 85-5-7. Limits noneconomic damages to $500,000 until July 1, 2011, $750,000 from July 1, 2011 until July 1, 2017, and $1 million after July 1, 2017, not adjusted for inflation, unless a judge were to determine that a jury could impose punitive damages. Prohibits the disclosure to a jury of the noneconomic damages limit.

MISSOURI

Medical Liability Reform: Noneconomic Damages: H.B. 393 (2005). Limits noneconomic damages in medical liability cases to a nonadjustable limit of $350,000 regardless of the number of defendants in the case.

Medical Liability Reform: Noneconomic Damages Reform: Mo. Stat. § 538.210. Limits noneconomic damages in medical liability cases to $350,000, to be increased or decreased on an annual basis in accordance with the Implicit Price Deflator for Personal Consumption Expenditures. The $350,000 limit on noneconomic damages recoverable from any one defendant in a health care liability action did not violate equal protection clauses of the State or Federal Constitutions, or open courts or right to remedy provisions of State Constitution. Adams v. Children’s Mercy Hospital, 832 S.W.2d 898 (Mo.), cert. denied, 506 U.S. 991 (1992).

MONTANA

Medical Liability Reform: Noneconomic Damages Reform: HB 309 (1995): Mont. Code Ann. § 25‑9‑411. Limits the award of noneconomic damages in medical malpractice cases to $250,000.

NEVADA

Medical Liability Reform: Emergency Room Liability: AB 1 (2002). Limits damages in medical liability cases against emergency room physicians to $50,000.

Medical Liability Reform: Noneconomic Damages Reform: AB 1 (2002). Limits noneconomic damages in medical liability cases to $350,000, except upon a showing of “gross malpractice” or a judicial determination that there is “clear and convincing evidence” that the noneconomic award should exceed the cap.

NEW HAMPSHIRE

Medical Liability Reform: Noneconomic Damages Reform: A New Hampshire law setting a $250,000 limit on noneconomic damages in medical liability cases was held unconstitutional in Carson v. Maurer, 424 A.2d 825 (N.H. 1980). A $875,000 cap on noneconomic damages was held unconstitutional in Brannigan v. Usitalso, 587 A.2d 1232 (N.H. 1980)).

Noneconomic Damages Reform: HB 513 (1986). Limits noneconomic damages to $875,000. The statute limiting recovery for noneconomic loss to $875,000 in personal injury actions violated the equal protection provision of the State Constitution. Brannigan v. Usitalo, 587 A.2d 1232 (N.H. 1991).

NEW MEXICO

Medical Liability Reform: Damages Limits: N.M. Stat. Ann. § 41-5-6, 41-5-7. Limits total damages in medical liability cases to $600,000, except for punitive damages and medical care and related benefits.

NORTH DAKOTA

Noneconomic Damages Reform: HB 1050 (1995): N.D. Cent. Code. § 32-42-02. Limits the award of noneconomic damages in medical liability cases to $500,000.

OHIO

Noneconomic Damages Reform: AM Sub SB 80 (2004); ORC Ann. 2315.18. Limits noneconomic damages in cases involving noncatastrophic injuries to the greater of $250,000 or three times economic damages up to $350,000, per plaintiff, with a maximum limit of $500,000 per occurrence. Limits applied to all cases but medical liability cases. Specifies that juries may not consider the following when determining noneconomic damages: (1) evidence of a defendant’s alleged wrongdoing, misconduct or noneconomic guilt; (2) evidence of the defendant’s wealth or financial resources; (3) all other evidence that is offered for the purpose of punishing the defendant. Finally, S.B. 80 specifies procedures and guidelines, based on ALEC’s Full and Fair Noneconomic Damages Act, for trial courts to review (upon a motion) noneconomic damages awards.

Medical Liability Reform: Noneconomic Damages: SB 281 (2003); ORC Ann. 2323.43. Limits the award of noneconomic damages in medical liability cases to $350,000, with a provision to allow the cap to rise to $1 million, depending on the severity of the injuries and the number of plaintiffs involved in the suit.

Noneconomic Damages Reform: HB 350 (1996). Limits the award of noneconomic damages to the greater of $250,000 or three times economic damages to a maximum of $500,000, unless there is a finding that a plaintiff suffered: (1) a permanent and severe physical deformity; or (2) a permanent physical functional injury that permanently prevents her from being able to independently care for herself and perform life sustaining activities. Provides that if a plaintiff establishes the criteria set forth above, noneconomic damages are limited to the greater of $1 million or $35,000 times the number of years remaining in the plaintiff’s expected life. The comprehensive 1996 tort reform law violated the doctrine of separation of powers and the one-subject provision of the State Constitution. State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 715 N.E.2d 1062 (Ohio 1999).

OKLAHOMA

Noneconomic Damages Reform: HB 1603 (2009). Provides that in any civil action arising from a claimed bodily injury, the amount of compensation which a trier of fact may award a plaintiff for noneconomic loss shall not exceed $400,000, except under certain circumstances.

Medical Liability Reform: Noneconomic Damages: H.B. 2661 (2004). Extends the sunset provision on the limit on noneconomic damages for ob/gyn’s and emergency care situations (S.B. 629, 2003) from July 1, 2008 until November 1, 2010.

Noneconomic Damages Reform: H.B. 2661 (2004). Limits noneconomic damages to $300,000 in medical liability cases provided the defendant made an offer of judgment and the amount of the verdict is less than one-and-a-half times the amount of the final offer of judgment. Indexed the limit to inflation. Non-economic damages do not include, by definition, exemplary damages. Limit on noneconomic damages may be lifted if nine or more members of the jury find by clear and convincing evidence that the defendant committed negligence or if nine or more members of the jury find by a preponderance of the evidence that the conduct of the defendant was willful or wanton. Provides, however, that the judge must, before submitting such determination to the jury, make a threshold determination that there is evidence from which the jury could reasonably make the findings set forth in the case. Provides that if the jury returns a verdict that is greater than $300,000 but less than one-and-a-half times the amount of the final offer of judgment, the court shall submit additional forms of possible verdicts to the jury covering possible determinations of negligence and/or willful and wanton conduct. Provided that limits do not apply to wrongful death action. Provisions of this section sunsets on November 1, 2010.

Medical Liability Reform: Noneconomic Damages: SB 629 (2003): 63 O.S. § 1-1708.1F. Limits the award of noneconomic damages to $350,000 in cases involving pregnancy (labor, delivery, and post partum period) as well as emergency care.

OREGON

Noneconomic Damages Reform: SB 323 (1987). Limits the award of noneconomic damages to $500,000. The $500,000 limit on noneconomic damages in personal injury and wrongful death actions arising out of common law violated the right to jury trial provision of the State Constitution. Lakin v. Senco Products, Inc., 987 P.2d 463 (Or. 1999).

SOUTH CAROLINA

Medical Liability Reform: Noneconomic Damages: S. 83 (2005). Limits noneconomic damages in medical liability cases to $350,000 per provider, with an overall aggregate limit of $1.05 million.

SOUTH DAKOTA

Medical Liability Reform: Noneconomic Damages Reform: S.D. Codified Laws § 21-3-11. Limits noneconomic damages in medical liability cases to $500,000.

TEXAS

Medical Liability Reform: Noneconomic Damages Reform: HB 4 (2003). Limits the award of noneconomic damages in medical malpractice cases to $250,000 against all doctors and health care practitioners and a $250,000 per-facility cap against health care facilities such as hospitals and nursing homes, with an overall cap of $500,000 against health care facilities, creating in effect an overall limit of noneconomic damages in medical malpractice cases of $750,000.

Medical Liability Reform: Wrongful Death: Tex. Rev. Civ. Stat. art. 4590i § 11.02. Limits damages in wrongful death actions to $500,000. The statute originally limited damages in all negligence actions, but the Texas Supreme Court held it unconstitutional except as to wrongful death actions in Rose v. Doctors Hospital, 801 S.W.2d 841 (Tex. 1990) .

UTAH

Medical Liability Reform: Noneconomic Damages Reform: Utah Code Ann. § 78-14-7.1. Limits noneconomic damages in medical liability cases to $250,000.

VIRGINIA

Medical Liability Reform: Damages Limits: Va. Code Ann. § 8.01-581-15. Limits total damages in medical liability cases to $1.5 million for acts occurring on or after August 1, 1999, with additional annual adjustments of $50,000 on July 1, 2000, and each July 1 thereafter, with final annual increases of $75,000 on July 1, 2007, and July 1, 2008. The $1 million limit on recoveries in medical liability actions did not violate the right to jury trial, prohibition against special legislation, or separation of powers provisions of the State Constitution, or takings, due process or equal protection provisions of the State or Federal Constitutions. Pulliam v. Coastal Emergency Services of Richmond, Inc., 509 S.E.2d 307 (Va. 1999) (affirming Etheridge v. Medical Center Hospitals, 376 S.E.2d 525 (Va. 1989) (statutory limit on recoveries in medical malpractice actions did not violate due process, right to jury trial, separation of powers, prohibition against special legislation, or equal protection provisions of State Constitution).

WASHINGTON

Noneconomic Damages Reform: SB 4630 (1986). Limits the award of noneconomic damages for bodily injury to .43% times the average annual wage times the plaintiff’s life expectancy (no less than 15 years). The variable limit on noneconomic damages awards violated the right to trial by jury under the State Constitution. Sofie v. Fibreboard Corp., 771 P.2d 711 (Wash. 1989).

WEST VIRGINIA

Medical Liability Reform: Noneconomic Damages Reform: HB 2122 (2003): W.V. Code Ann. § 55-7B-8. Limits the award of noneconomic damages in medical malpractice cases to $250,000 to $500,000 depending on the severity of the injuries.

Medical Liability Reform: Noneconomic Damages Reform: W.V. Code Ann. § 55-7B-8. Limits noneconomic damages in medical liability cases to $1 million. The $1 million limit on noneconomic damages awards in medical liability actions did not violate the equal protection, due process, or right to remedy provisions of the State Constitution. Robinson v. Charleston Area Medical Center, Inc., 414 S.E.2d 877 (W.Va. 1991); Estate of Verba v. Ghaphery, 2001 WL 703840 (W. Va. June 19, 2001) (reaffirming Robinson decision).

WISCONSIN

Medical Liability Reform: Noneconomic Damages Reform: AB 36 (1995): Wisc. Stat. Ann. §§ 893.55, 895.04. Limits the award of noneconomic damages in medical liability cases to $350,000, indexed for inflation. The $350,000 limit on noneconomic damages awards in medical liability cases did not violate the right to jury trial, separation of powers, remedy for wrongs, equal protection, or due process provisions of the State constitution. Guzman v. St. Francis Hospital, Inc., 2000 WL 1848463 (Wis. App. Dec. 19, 2000).

Medical Liability Reform: Wrongful Death Damages Reform: Wisc. Stat. Ann. §§ 893.55, 895.04. Limits damages in wrongful death cases to $500,000 for a minor and $350,000 for an adult.