Is There a Cap on How Much You Can Sue for in a Malpractice Case?

A much-debated part of proposed tort reform is the establishment of a national limit on the amount a health care provider must pay out in a malpractice suit. Some say a cap is needed to reduce insurance premiums and ruinous judgments. Others believe that because there is no cap on the amount of suffering and financial loss a neglectful or inept doctor can cause, there should be no limit on what that doctor should pay. As of July 2011, there is still no national cap, but some states have taken the matter into there own hands.

State Caps

According to the American Medical Association, as of January 2011, 26 states have imposed a limit on damages for pain and suffering, known as "non-economic damages." The limits range from $250,000 in California, Texas and other states to $1.5 million in Florida. Six states have limited all damages, including economic, non-economic and punitive. Seven states' caps were struck down in the courts.

Cap Justification

In addition to reducing excessive awards and malpractice insurance costs, proponents of malpractice caps believe fear is a factor. They argue that removing the fear of being hit with an exessive judgment would free doctors from feeling they must prescribe unneeded, expensive tests and procedures on the outside chance that not ordering the tests would be used against them in a malpractice suit. According to the George Washington University Department of Medicine, a national cap could save the federal government as much as $54 billion over 10 years, most of the saving coming from less "defensive medicine."

A Problem with Caps

In 2011, Joyce and Robert Cull of California explained to Congress how California's cap on malpractice suits made it almost impossible to find out how their 17-year-old daughter, Olivia, died. The hospital originally gave the cause of death as asphyxia. Only after an attorney agreed to handle the case pro bono did the Culls learn there was much more to Olivia's death. Because California limits the amount attorneys can collect in such a suit, few lawyers will put forth the expense and manpower required to win without the hope of being paid well at the suit's conclusion.

Insurance Costs

According to a March 2011 New York Times article, states that have instituted caps on malpractice awards have not seen a dramatic decrease in the amount insurance companies charge doctors for malpractice insurance. Caps have slowed the rate of increase in malpractice premiums, but the huge savings predicted by cap proponents has not materialized, according to the article. However, Lawrence E. Smarr, president of Physician Insurers Association of America, said that competition will eventually drive the premiums down.

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