FAQ About "Caps" on Damages

WHAT IS A “CAP” ON DAMAGES?
A “cap” on damages is law that puts an arbitrary “one-size-fits-all” ceiling on the amount an injured person can receive in compensation by a judge or jury, irrespective of what the evidence presented at a trial proves compensation should be.  Therefore, caps take away the authority of judges and juries, who listen to the evidence in a case, to decide compensation based on each specific fact situation.  Instead, it places these decisions in the hands of politicians, abandoning this country’s history of "individual justice."
A cap is usually defined by a dollar figure ($100,000, $500,000, etc.)  Caps only come into play after someone has already been found liable for causing harm.  They have nothing to do with “frivolous” lawsuits.   They apply no matter how much merit a case has, or the extent of misconduct or injury. 

WHO IS MOST HURT BY CAPS?
Caps apply regardless of the severity of an injury.  In fact, they only affect the most severely hurt, like catastrophically-injured newborns, because only the most seriously injured person has damages that ever rise to the level of a cap.
For example, the state of California has had a 35-year track record with a $250,000 “non-economic” damages cap in medical malpractice cases.  (Non-economic damages compensate for injuries like permanent disability, disfigurement, blindness, loss of a limb, paralysis, trauma, or physical pain and suffering.)  According to an analysis by the Rand Institute for Civil Justice, plaintiffs less than one year of age had awards capped 71 percent of the time, compared with 41 percent for all plaintiffs with identifiable non-fatal injuries.  Injury cases with reductions of $2.5 million or more usually involved newborns and young children with very critical injuries.  In effect, such a cap comes from reductions in payments to the most seriously injured and those with the longest lifespan after the injury - children.  (Pace, N., Golinelli, D., Zakaras, L., “Capping Non-Economic Awards in Medical Malpractice Trials, California Jury Verdicts Under MICRA,” Rand Institute for Civil Justice, 2004.)
Caps also make cases economically impossible for attorneys to bring.  In fact, this problem has already happened in states like California.  Insurance defense attorney Robert Baker, who defended malpractice suits for more than 20 years, told Congress in 1994, “As a result of the caps on damages, most of the exceedingly competent plaintiff’s lawyers in California simply will not handle a malpractice case … There are entire categories of cases that have been eliminated since malpractice reform was implemented in California.”

ARE CAPS CONSTITUTIONAL?
Caps have been held unconstitutional by the high courts of many states, including most recently Georgia (Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 691 S.E.2d 218 (Ga. 2010) (violates State constitution’s guarantee that “[t]he right to trial by jury shall remain inviolate”) and  Illinois  (Lebron, a Minor v. Gottlieb Memorial Hospital, 930 N.E.2d 895 (Ill. 2010) (violates constitutional separation of powers).  (See more here.)

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