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Efforts to cap medical malpractice damages are faltering

Conservative politicians in Maryland and elsewhere have, for years, attempted to limit damages in medical malpractice cases. Hiding these efforts under the vague title of "tort reform," Republicans in both state legislatures and the United States Congress have proposed - and occasionally enacted - laws that limit recovery for non-economic damages to $250,000. Two recent developments show that these efforts to limit damages in medical malpractice suits may be faltering.

Damages in medical malpractice cases generally fall into four categories: medical expenses necessitated by the doctor's error, loss of income caused by the error and damages for pain and suffering. The fourth category is punitive damages, which are awarded if the physician's error is especially egregious. Most tort reform efforts have taken aim at the last two categories, generally referred to as non-economic or non-monetary damages because they are not based on out-of-pocket losses incurred by the plaintiff.

An appellate court in Florida recently struck down such a cap on the ground that it violated the equal protection clause in the state's constitution. In a 4-3 ruling, the court rejected the legislature's justification for the cap, saying that the record in the case did not support the claim that the cap was necessary to prevent a medical malpractice insurance crisis.

Efforts in Washington to enact a malpractice cap are also running into resistance. Most political experts believe that the Democrats in the Senate will be able to muster enough votes to prevent such legislation from coming to a vote, even if the House of Representatives passes such a bill. Opponents of the legislation argue that capping damages will prevent deserving plaintiffs from receiving full compensation for their injuries.

Source: Modern Health Care, "Fla. high court strikes down medical malpractice damages cap," Harris Meyer, June 9, 2017

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