A state court judge in North Dakota recently ruled that capping non-economic damages in medical malpractice cases is unconstitutional.

Many states around the U.S. have enacted such “tort reform” measures, only to have them struck down. Such laws are not just unconstitutional – they don’t work. They have not had the intended effect of lowering patients’ costs or doctors’ malpractice premiums. In fact, there is little evidence of a medical malpractice “crisis” in the first place.

Capping non-economic damages is arbitrary

A cap on medical malpractice damages is unfair in two ways. (1) It allows patients with less severe injuries to recover full compensation but denies justice to those who have suffered the most catastrophic harm. (2) It singles out victims of medical negligence; there is no such limit on other lawsuits such as car accidents or slip-and-falls.

• North Dakota law limits non-economic damages to $500,000. This refers to damages such as pain and suffering, or emotional distress. Last April a North Dakota jury awarded $3.5 million to a woman who sued after surgery errors caused her to suffer a stroke. But now a district court judge has denied the hospital’s motion to reduce the award, saying the cap on damages violates plaintiffs’ equal protection under the state constitution.
• Last July, a Wisconsin appeals court sided with a woman who was awarded $25 million (including $15 million in non-economic damages) for a woman whose septic infection resulted in surgical amputation of all four of her limbs. The state’s malpractice fund, which insures doctors and pays plaintiffs, sought to reduce the non-economic award to the statutory maximum of $750,000. The appellate court found the cap unconstitutional under the same equal protection argument, saying such limits are “unfair and illogical.”
• Last June, the Florida Supreme Court struck down a similar medical malpractice cap instituted in 2003. Florida’s high court likewise said that the arbitrary cap punishes those are injured the worst.

Why caps on medical malpractice awards?

Many states enacted caps on damages in medical malpractice cases to push back against “runaway juries” awarding massive verdicts in “frivolous lawsuits.” The medical lobby argued that physicians were leaving the profession because malpractice premiums were too high. They also argued that exorbitant malpractice awards cause doctors to practice defensive medicine, driving up the cost of health care.

But the facts don’t match the supposed crisis. The number of medical malpractice lawsuits has decreased over the last 20 years. Average awards are not climbing. There has been no mass exodus of physicians over unaffordable insurance, and states with caps on damages have not seen a decrease in malpractice premiums. In states that enacted caps, doctors still practice defensive medicine, with no savings to consumers.

Connecticut does not limit medical malpractice lawsuits, but every few years someone tries to resurrect the tort reform debate.