In a notable departure from other tort-reform movements in the country, one state may soon permit medical malpractice lawsuit plaintiffs to recover significantly more noneconomic damages in negligence cases and other cases.
California voters may soon employ a ballot initiative to reconsider the current $250,000 cap, which was imposed in 1975, for noneconomic damages in medical malpractice cases. The measure, which would quadruple the cap, effectively adjusts the existing cap for inflation. As in most other tort-reform disputes, insurance and medical interests oppose raising the cap, arguing that high damage awards for some drive up insurance costs and healthcare costs for everyone. Trial lawyers favor raising the cap, maintaining that $250,000 may be too low in some cases; for example, a 25-year-old person who becomes a paraplegic and lives to be 75 only receives about $5,000 a year, or less than $450 per month. Consumer advocacy groups are divided.
Tort reform is an ongoing process in most states. In most instances, tort reform involves either making it more difficult for an aggrieved plaintiff to file a lawsuit or more difficult for a successful plaintiff to recover damages. But California voters may choose to raise the damage cap for several reasons:
Gender discrimination: Juries sometimes use economic damages, mainly lost wages, as a guideline amount for noneconomic damages. Because women tend to earn less than men, noneconomic damage awards for women went from 94 percent of awards for men to 59 percent. To make matters worse, some injuries to women, notably miscarriage and stillbirth, have almost no economic value, but cause devastating emotional losses.
Economic discrimination: The damage cap may effectively close the courthouse altogether. Medical malpractice cases are expensive to bring, both in terms of the attorneys’ time and the expense of cases (mostly expert witness fees). Most tort lawyers work on a contingency fee, meaning that they are only paid when damages are recovered. If the damage cap is too harsh, attorneys may not bring suit in the first place, even in a clear case of negligence.