Order Code RL31692
CRS Report for Congress
Received through the CRS Web
Medical Malpractice Liability Reform:
Legal Issues and Fifty-State Survey of
Caps on Punitive Damages and
Noneconomic Damages
Updated January 29, 2004
Henry Cohen
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress

Medical Malpractice Liability Reform: Legal Issues and
Fifty-State Survey of Caps on Punitive Damages and
Noneconomic Damages
Summary
Medical malpractice liability is governed by state law, but Congress has the
power, under the Commerce Clause of the U.S. Constitution (Art. I, § 8, cl. 3) to
regulate it. On March 13, 2003, the House passed H.R. 5, 108th Congress, which
would preempt state law with respect to certain aspects of medical malpractice
lawsuits. H.R. 5 finds “that the health care liability system is a costly and ineffective
mechanism for resolving claims of health care liability and compensating injured
patients.” It seeks to prevent the decreased availability of medical services, “reduce
the incidence of ‘defensive medicine’ and lower the cost of health care liability
insurance, all of which contribute to the escalation of health care costs.” Opponents
of medical malpractice reforms have argued that “there is a very minimal relationship
between health care costs and malpractice litigation,” and that, “[a]s the Harvard
Medical Practice Study reported in 1990, . . . about one in eight negligently injured
patients file a malpractice claim. The study’s authors concluded that ‘we do not now
have a problem of too many claims; if anything, there are too few.’”
This report does not address the question of the effects of medical malpractice
litigation, or of medical malpractice liability reform, on the health care system or on
the cost of liability insurance premiums. Rather, it discusses the reforms proposed
by H.R. 5, as passed.
H.R. 5, as passed, would, among other things, impose caps on noneconomic
damages and punitive damages, permit defendants to be held liable for no more than
their share of responsibility for a plaintiff’s injuries, require that damage awards be
reduced by amounts plaintiffs receive from collateral sources such as health
insurance, limit lawyers’ contingent fees, create a federal statute of limitations, and
require that awards of future damages in some cases be paid periodically, rather than
in a lump sum. This report explains each of these ideas and enumerates some of their
pros and cons. An appendix to this report presents a chart of current state caps on
punitive damages and noneconomic damages.
S. 11, which was introduced on June 27, 2003 and placed on the Senate calendar
rather than referred to a committee, is largely identical to H.R. 5. The most
significant respect in which it differs is that it would include section 5(c), not in H.R.
5, which would require that expert witnesses in health care lawsuits meet specified
qualifications.

Contents
The Tort of Medical Malpractice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
H.R. 5, 108th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Preemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
S. 11, 108th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Cap on Noneconomic Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Pro . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Con . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Cap on Punitive Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Pro . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Con . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Limiting Joint and Several Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Pro . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Con . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Abolishing the Collateral Source Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Pro . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Con . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Limiting Lawyers’ Contingent Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Pro . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Con . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Creating a Federal Statute of Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Periodic Payment of Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Pro . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Con . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Appendix: Fifty State Survey of Caps on Punitive Damages and Noneconomic
Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Medical Malpractice Liability Reform: Legal
Issues and Fifty-State Survey of Caps on
Punitive Damages and Noneconomic
Damages
The Tort of Medical Malpractice
Medical malpractice is a tort, which is a civil (as distinct from a criminal)
wrong, other than a breach of contract, that causes injury for which the victim may
sue to recover damages. Actions in tort derive from the common law, which means
that the rules that govern them were developed by the courts of the fifty states, and
no statute is necessary in order to bring a tort action. Statutes, however, can change
the court-made rules that govern tort actions, and many states have enacted tort
reform statutes, including medical malpractice reform statutes. Congress also has the
power, under the Commerce Clause of the U.S. Constitution (Art. I, § 8, cl. 3), to
regulate medical malpractice litigation.
Medical malpractice liability arises when a health care professional engages in
negligence or commits an intentional tort. Negligence has been defined as conduct
“which falls below the standard established by law for the protection of others against
unreasonable risk of harm.”1 In most instances it arises from a failure to exercise due
care, but a defendant may have carefully considered the possible consequences of his
conduct and still be found to have imposed an unreasonable risk on others.
“Negligence is conduct, and not a state of mind.”2 The following is a “traditional
description” of the standard of care to which doctors are held to avoid liability for
medical malpractice:
This legal duty requires that the physician undertaking the care of a patient
possess and exercise that reasonable and ordinary degree of learning, skill, and
care commonly possessed and exercised by reputable physicians practicing in the
same locality.3
Today, however, “[t]he growing majority of jurisdictions employ some variation
of the national standard of care.”4
1 RESTATEMENT (SECOND) OF TORTS, § 282.
2 W. Page Keeton, Prosser and Keeton on Torts, § 31 (5th ed. 1984).
3 Quoted in David M. Harney, MEDICAL MALPRACTICE, § 21.2 (3d ed. 1993).
4 Nalder v. West Park Hospital, 254 F.3d 1168, 1176 (10th Cir. 2001).

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The skill, diligence, knowledge, means and methods [required] are not those
“ordinarily” or “generally” or “customarily” exercised or applied, but those that
are “reasonably” exercised or applied. Negligence cannot be excused on the
ground that others practice the same kind of negligence. Medicine is not an
exact science and the proper practice cannot be gauged by a fixed rule.5
Medical malpractice liability, as noted, may arise from an intentional tort as well
as from negligence. One commentator explained:
[A]n important part of medical malpractice law in some jurisdictions – failure [of
the patient] to give consent – falls into the category of intentional torts . . . . The
reasoning is that because the doctor did not fully explain the risks that might
arise from the contact, the doctor’s contact with the patient was done without
permission. In traditional liability law, such contact is a battery, which is an
intentional tort.6
H.R. 5, 108th Congress
On March 13, 2003, the House passed H.R. 5, 108th Congress, the “Help
Efficient, Accessible, Low-Cost, Timely Health Care (HEALTH) Act of 2003,”
which finds “that the health care liability system is a costly and ineffective
mechanism for resolving claims of health care liability and compensating injured
patients.” It seeks to prevent the decreased availability of medical services, “reduce
the incidence of ‘defensive medicine’ and lower the cost of health care liability
insurance, all of which contribute to the escalation of health care costs.” Opponents
of medical malpractice reforms have argued that “there is a very minimal relationship
between health care costs and malpractice litigation,” and that, “[a]s the Harvard
Medical Practice Study reported in 1990, . . . about one in eight negligently injured
patients file a malpractice claim. The study’s authors concluded that ‘we do not now
have a problem of too many claims; if anything, there are too few.’”7
H.R. 5 (§ 9(7),(8),(9)) would apply not only to medical malpractice claims, but
to claims against a “manufacturer, distributor, supplier, marketer, promotor, or seller
of a medical product.”8
H.R. 5 would, among other things, impose caps on noneconomic damages and
punitive damages, permit defendants to be held liable for no more than their share of
responsibility for a plaintiff’s injuries, require that damage awards be reduced by
amounts plaintiffs receive from collateral sources such as health insurance, limit
lawyers’ contingent fees, create a federal statute of limitations, and require that
5 Id.
6 Victor E. Schwartz, Doctors’ Delight, Attorneys’ Dilemma, Legal Times, Health-Care Law
Supplement (Feb. 28, 1994) at 30.
7 Barry J. Nace, Changing medical malpractice liability will not reduce health care costs,
National Law Journal (Oct. 11, 1993).
8 The definition of “medical product” in § 9(14) would incorporate the definitions of “drug,”
“device,” and “biological product” in, respectively, 21 U.S.C. § 201(g)(1) and (h), and 42
U.S.C. § 262(a), but “262(a)” should apparently be “262(i).”

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awards of future damages in some cases be paid periodically, rather than in a lump
sum. This report will explain each of these ideas and enumerate some of their pros
and cons. An appendix will present a chart of current state caps on punitive damages
and noneconomic damages.

Preemption. Under H.R. 5, medical malpractice lawsuits would continue to
be based on state law, but H.R. 5 would preempt state law with respect to certain
aspects of such lawsuits. It would not, however, preempt any state law “that imposes
greater procedural or substantive protections for health care providers and health care
organizations from liability, loss, or damages than those provided by this Act or
create a cause of action (§ 11(b)). It would also not preempt “any State law (whether
effective before, on, or after the date of enactment of this Act) that specifies a
particular monetary amount of compensatory or punitive damages (or the total
amount of damages) that may be awarded in a health care lawsuit, regardless of
whether such monetary amount is greater or lesser than is provided for under this
Act . . .” (§ 11(c)).9
S. 11, 108th Congress
S. 11, titled the “Patients First Act of 2003,” which was introduced on June 27,
2003 and placed on the Senate calendar rather than referred to a committee, is largely
identical to H.R. 5. The most significant respect in which S. 11 differs is that it
would include section 5(c), not in H.R. 5, which would require that expert witnesses
in health care lawsuits meet specified qualifications. Unless they testify only “as to
the degree or permanency of medical or physical impairment,” expert witnesses
would have to be “appropriately credentialed or licensed in 1 or more States to
deliver health care services,” and “typically treat[ ] the diagnosis or condition or
provide[ ] the type of treatment under review,” and they would have to demonstrate
that they were “substantially familiar with applicable standards of care and practice
as they relate to the [subject of the lawsuit].”10
Every reference to H.R. 5 below, unless S. 11 is contrasted with it, may be
read to refer to S. 11 as well.
Cap on Noneconomic Damages
H.R. 5 (§ 4(b)) would impose a $250,000 cap on noneconomic damages in any
healthcare lawsuit, “regardless of the number of parties against whom the action is
brought or the number of separate claims or actions brought with respect to the same
9 This preemption provision raises the question whether a state that wishes to have no cap
may enact a cap that is so high – say, $1 billion – that it is effectively no cap, and thereby
not be subject to the bill’s cap.
10 Other differences are noted below under “Cap on Punitive Damages” and “Periodic
Payment of Damages.” A difference not noted below is that the definition of “medical
product” in § 9(14) of S. 11 would drop the reference to “biological product” in H.R. 5 (see
note 8, supra). Also not noted below are apparently non-substantive differences in the
wording of the preemption provision (§ 11(b)), and in the (apparently superfluous) provision
stating that economic damages would not be capped (§ 4(a)).

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injury.” As noted, this cap would apply only in states that have no cap before
enactment of H.R. 5 and that do not enact one subsequently.11
Economic damages refer to monetary losses that result from an injury, such as
medical expenses, lost wages, and rehabilitation costs. (H.R. 5 would not cap
economic damages.) Noneconomic damages consist primarily of damages for pain
and suffering. Determining the amount of noneconomic damages “is an area
traditionally subject to broad discretion on the part of juries, who find themselves
forced to equate two variables – money and suffering – which are admittedly
incommensurable.”12 Judges, however, have the authority to reduce damage awards
that they find excessive.13
Pro. Advocates of caps on damages for pain and suffering argue that a lack of
caps “guarantees unevenness and unpredictability in the recovery system, and forces
insurers to counter the uncertainty of awards by charging higher premiums. . . .
[D]isagreement over the amount of pain and suffering damages is a major obstacle
to out-of-court settlement, thus prolonging the plaintiff’s uncompensated
suffering. . . . Additionally, the spectre of a disproportionate jury award causes
insurers to overpay on settlements of smaller claims. The net result is a skewing of
the pattern of compensation, with windfall gains to smaller claimants while the
largest claims go significantly undercompensated. Further complicating the picture
is the inclination of juries to inflate pain and suffering recoveries to cover some or
all of the plaintiff’s attorney’s fees.”14
Con. Caps on noneconomic damages punish the worst afflicted, because the
more pain and suffering that a plaintiff has endured, the more a cap deprives him of
damages to which he would otherwise have been entitled. “By forever freezing
compensation at today’s levels, caps discriminate against a single class of Americans
whose members are destined to suffer a lifetime of deprivation of dignity and
independence.”15 The $250,000 cap that H.R. 5 would impose was adopted by
California in 1975 “at a time when pain-and-suffering awards rarely exceeded that
amount.”16 Twenty years later, in 1995, the median award for pain and suffering in
11 H.R. 5 (§ 4(c)) provides that, for purposes of applying the $250,000 cap, “future
noneconomic damages shall not be discounted to present value.” This apparently means
that, if a jury awards, say, $260,000 in future noneconomic damages, and such amount could
be paid in the form of an annuity that costs $240,000, the higher figure would control, and
the future noneconomic damages would be reduced to $250,000, not to $240,000.
12 Brown and McGuire, Damages for Pain and Suffering: What are the Courts Really
Doing?
, Case and Comment (Nov./Dec. 1978) at 20.
13 See Michael Higgins, Homogenized Damages: Judge suggests using statistical norms to
determine whether pain and suffering awards are excessive
, American Bar Association
Journal (Sept. 1997) at 22.
14 Brown and McGuire, supra note 12, at 21-22.
15 Peter Perlman, Don’t Punish the Injured, American Bar Association Journal (May 1986)
at 34.
16 Edward Felsenthal, Why a Medical Award Cap Remains Stuck at $250,000, Wall Street
(continued...)

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malpractice cases reportedly was $300,000, and inflation has also taken a toll.17
“Instead of embracing arbitrary limits that are unfair if not inhumane – and useless
as a device for controlling insurance premiums – we must continue to rely on our
time-tested jury system for determining what’s right.”18
Cap on Punitive Damages
H.R. 5 (§ 7(a)) provides that punitive damages may be awarded if otherwise
permitted by state law, if the claimant proves “by clear and convincing evidence”
that the defendant “acted with malicious intent to injure the claimant, or . . .
deliberately failed to avoid unnecessary injury that [the defendant] knew the claimant
was substantially certain to suffer.” H.R. 5 would thus preempt state law regarding
the burden of proof and the standard for awarding punitive damages, except in states
that provide greater protection for defendants.19
H.R. 5 (§ 7(b)(2)) would also impose a cap on punitive damages of $250,000
or two times the amount of economic (not all compensatory) damages awarded,
whichever is greater. As with H.R. 5’s cap on noneconomic damages, the cap on
punitive damages would apply only in states that have no cap before enactment of
H.R. 5 and that do not enact one subsequently.
H.R. 5 (§ 7(c)) would provide that “[n]o punitive damages may be awarded
against the manufacturer or distributor of a medical product, or a supplier of any
component or raw material of such medical product,” if the product had been
approved by the Food and Drug Administration or is generally recognized as safe and
effective under FDA regulations. S. 11 (§ 7(c)), by contrast, would require plaintiffs,
to receive punitive damages, to demonstrate by clear and convincing evidence that
the manufacturer or distributor of a medical product, or supplier of any component
or raw material, “failed to comply with a specific requirement of the Federal Food,
Drug, and Cosmetic Act or the regulations promulgated thereunder”; and that “the
harm attributed to the particular medical product resulted from such failure to comply
. . . .”
In 1851, the Supreme Court wrote:
It is a well-established principle of the common law, that in actions . . . for torts,
a jury may inflict what are called exemplary, punitive, or vindictive damages
upon a defendant, having in view the enormity of his offense rather than the
16 (...continued)
Journal (Nov. 1995).
17 Id.
18 Perlman, supra note 15.
19 See CRS Report RL31721, Punitive Damages in Medical Malpractice Actions: Burden
of Proof and Standards for Awards in the Fifty States
.

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measure of compensation to the plaintiff. We are aware that the propriety of this
doctrine has been questioned by some writers.20
When may punitive damages be awarded? A treatise states:
Something more than the mere commission of a tort is always required for
punitive damages. There must be circumstances of aggravation or outrage, such
as spite or “malice,” or a fraudulent or evil motive on the part of the defendant,
or such a conscious and deliberate disregard of the interests of others that the
conduct may be called wilful or wanton. There is general agreement that,
because it lacks this element, mere negligence is not enough, even though it is so
extreme as to be characterized as “gross,” a term of ill-defined content, which
occasionally, in a few jurisdictions, has been stretched to include the element of
conscious indifference to consequences, and so to justify punitive damages.21
Among the restrictions that have been proposed with regard to punitive
damages, besides that they be capped, is (1) that the circumstances in which they may
be awarded be narrowed, (2) that plaintiffs be required to prove by “clear and
convincing” evidence that they are entitled to them (instead of having to prove it by
a mere “preponderance of the evidence.”), (3) that liability for punitive damages be
determined in a separate proceeding from liability for compensatory damages,22 and
(4) that punitive damages be paid in part to the government or to a fund that serves
a public purpose instead of to the plaintiff.23
Pro. Critics charge that punitive damage awards in medical malpractice cases
“are often unfair, arbitrary and unpredictable, and result in overkill. . . . One
publication argues that reform is needed because there has been an outpouring of ‘the
most outrageous punitive damage awards’ in medical malpractice.”24 “Even though
punitive damage awards occur in a small percentage of cases, they can have a
devastating impact on individual defendants and can impose big costs on the
economy as a whole . . . .”25
Con. “The preliminary findings of the American Bar Foundation’s research
indicate that punitive damage awards are not routine. They are not, typically, given
20 Day v. Woodworth, 54 U.S. (13 How.) 363, 371 (1851).
21 W. Page Keeton, supra note 2, § 2.
22 In BMW of North American, Inc. v. Gore, 517 U.S. 559, 618 (1996), the Supreme Court
listed state statutes that provide for this.
23 In BMW of North American, Inc. v. Gore, 517 U.S. 559, 616 (1996), the Supreme Court
listed state statutes that provide for this. Of the four proposals mentioned in the above
paragraph, the fourth one – paying part of the punitive damages award to the government
or a fund – is the only one that H.R. 5 would not implement.
24 Micahel Rustad and Thomas Koenig, Reconceptualizing Punitive Damages in Medical
Malpractice: Targeting Amoral Corporations, Not “Moral Monsters
, 47 Rutgers Law
Review 975, 978, 980-981 (1995).
25 Mark Thompson, Applying the Brakes to Punitives – But is There Anything to Slow
Down?
, American Bar Association Journal (Sept. 1997) at 68, 69.

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in amounts that boggle the mind.”26 Punitive damages have been called “a necessary
tool in the effective control of socially undesirable conduct. . . . Punitive damages
must be allowed to fill the gaps the criminal law leaves open.”27 Finally, trial judges
often reduce punitive damages awards that they find excessive, and a recent Supreme
Court decision “makes it easier for appellate courts to reduce punitive damages.”28
Limiting Joint and Several Liability
H.R. 5 (§ 4(d)) would eliminate joint and several liability in health care lawsuits.
Joint and several liability is the common-law rule that, if more than one defendant
is found liable for a plaintiff’s injuries, then each defendant may be held 100 percent
liable. With joint and several liability, the plaintiff may not recover more than once,
but he may recover all his damages from fewer than all liable defendants, with any
defendant who pays more than its share of the damages entitled to seek contribution
from other liable defendants.
Some states have eliminated joint and several liability, making each defendant
liable only for its share of responsibility for the plaintiff’s injury. Other states have
adopted compromise positions, eliminating joint and several liability only for
noneconomic damages (presumably with the view that it is more important for the
plaintiff to recover all his economic damages than all his noneconomic damages), or
eliminating joint and several liability only for defendants responsible for less than a
specified percentage (e.g., 50 percent) of the plaintiff’s harm (presumably with the
view that it is especially unfair for such defendants to be held liable for up to 100
percent of the damages).
Pro. Advocates of abolishing or limiting joint and several liability argue that
it “frequently operates in a highly inequitable manner – sometimes making
defendants with only a small or even de minimis percentage of fault liable for 100%
of plaintiff’s damage. Accordingly, joint and several liability in the absence of
concerted action has led to the inclusion of many ‘deep pocket’ defendants such as
governments, larger corporations, and insured entities whose involvement is only
tangential and who probably would not be joined except for the existence of joint and
several liability.”29
26 Stephen Daniels, Punitive Damages: The Real Story, American Bar Association Journal
(Aug. 1986) at 60, 63.
27 Lisa M. Broman, Punitive Damages: An Appeal for Deterrence, 61 Nebraska Law Review
651, 680 (1982).
28 Tania Zamorsky, Impact of High Court’s Ruling In “Leatherman”: Punitive awards
reduced in four cases,
National Law Journal (Aug. 1, 2001), citing Cooper Industries, Inc.
v. Leatherman Tool Group, Inc.
, 532 U.S. 424 (2001), which held that appellate courts
should perform de novo review, rather than apply an abuse-of-discretion standard, when
determining whether punitive damages are excessive in violation of the Eighth Amendment.
29 Report of the Tort Policy Working Group on the Causes, Extent and Policy Implications
of the Current Crisis in Insurance Availability and Affordability
(Feb. 1986) at 64.

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Con. Advocates of joint and several liability cite the reason that the common
law adopted it: it is preferable for a wrongdoer to pay more than its share of the
damages than for an injured plaintiff to recover less than the full compensation to
which he is entitled.
Abolishing the Collateral Source Rule
The collateral source rule is the common-law rule that allows an injured party
to recover damages from the defendant even if he is also entitled to receive them
from a third party (a “collateral source”), such as a health insurance company, an
employer, or the government. To abolish the collateral source rule would be to
require courts to reduce damages by amounts a plaintiff receives or is entitled to
receive from collateral sources. H.R. 5 (§ 6) would provide that, in any health care
lawsuit, any party (usually the defendant) may introduce evidence of collateral source
benefits, and the opposing party (usually the plaintiff) may introduce evidence of
amounts paid to secure those benefits (e.g., health insurance premiums). H.R. 5 does
not state that collateral source benefits, minus amounts paid to secure such benefits,
would have to be deducted from damage awards, but that would presumably be the
purpose of introducing evidence of these matters.
Often a collateral source, such as a health insurer or the government, has a right
of subrogation against the tortfeasor (the person responsible for the injury).30 This
means that the collateral source takes over the injured party’s right to sue the
tortfeasor, for up to the amount the collateral source owes the injured party. Though
the collateral source rule may enable the plaintiff to recover from both his insurer and
the defendant, the plaintiff, if there is subrogation, must reimburse his insurer the
amount it paid him. H.R. 5 would prohibit providers of collateral source benefits
from asserting a right of subrogation. This means that plaintiffs would recover only
once (from the collateral source), and the collateral source could not recover the
benefits it paid. H.R. 5 thereby would benefit health care providers and their liability
insurers at the expense of health insurers and other providers of collateral source
benefits.31
30 The Medical Care Recovery Act, 42 U.S.C. § 2651(a), provides: “In any case in which the
United States is authorized or required by law to furnish or pay for hospital, medical,
surgical, or dental care and treatment . . . to a person who is injured or suffers a disease . . .
under circumstances creating a tort liability upon some third person . . . , the United States
shall have a right to recover . . . from said third person, or that person’s insurer, the
reasonable value of the care and treatment . . . and shall as to this right be subrogated to any
right or claim that the injured or diseased person . . . has against such third person to the
extent of the reasonable value of the care and treatment . . . .”
31 By contrast, S. 607, 108th Congress, would abolish the collateral source rule only when
the payor of collateral source benefits has no right of subrogation. This means that, when
the payor has no right of subrogation, the plaintiff’s damages would be reduced, but he
could keep his collateral source benefits, and, as under H.R. 5, health care providers would
benefit at the expense of health insurers. When, however, the payor has a right of
subrogation, the plaintiff’s damages would not be reduced, but he would not recover twice
because he would not be permitted to recover collateral source benefits.

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One commentator has noted that eliminating the collateral source rule could
indirectly reduce damages for pain and suffering, “because juries often render pain
and suffering awards as a multiple of actual economic awards. The extent of this
impact may depend . . . on . . . [w]hat figures will be given to the jury[.] If the
collateral source rule is abolished, will the jury be told that the plaintiff ‘lost’ $3,000
(the amount he or she actually paid out) or $50,000 (the full amount of the medical
bills and/or loss of wages, much of which may have been paid by a collateral
source)? This may seem a technical point, but it can have tremendous practical
implications in the trial of cases, including whether a case involves sufficient
damages to establish diversity jurisdiction in federal court.”32
Pro. Advocates of abolishing the collateral source rule object to the fact that
it “permits the plaintiff to obtain double recovery for certain components of his
damages award,” unless the collateral source is subrogated to the plaintiff’s claim
against the defendants.33 Abolishing the collateral source rule will reduce damage
awards without denying plaintiffs full recovery of their damages.
Con. Advocates of the collateral source rule cite the reason that the common
law adopted it: it is preferable for the victim than for the wrongdoer to profit from the
victim’s prudence (as in buying health insurance) or good fortune (in having some
other collateral source available). One commentator has also noted that, when the
collateral source is the government, and the benefit it provides are future services,
such as physical therapy, there is no guarantee that it will provide such services for
as long as they are needed, as government programs can be cut back.34
Limiting Lawyers’ Contingent Fees
A contingent fee is one in which a lawyer, instead of charging an hourly fee for
his services, agrees, in exchange for representing a plaintiff in a tort suit, to accept
a percentage of the recovery if the plaintiff wins or settles, but to receive nothing if
the plaintiff loses. Recovery is thus contingent upon there being a recovery.
Plaintiffs agree to this arrangement in order to afford representation without having
to pay anything out-of-pocket, and lawyers agree to it because the percentage they
receive – usually from 33a to 40 percent – generally amounts to more than an hourly
fee would.
H.R. 5 (§ 5) would impose a cap with a sliding scale in medical malpractice
cases.35 As of 1989, 25 states reportedly regulated contingent fees in medical
malpractice cases in one or more of the following ways: “(1) establishment of a
sliding scale for the attorney fees; (2) establishment of a maximum percentage of the
32 Id. at 30.
33 Report of the Tort Policy Working Group, supra note 29.
34 Barry J. Nace and Virginia C. Nelson, Plaintiffs’ Lawyers Have Already Seen Many of the
Proposed Tort Reforms in the States, and Find Them Disastrous for Clients
, National Law
Journal (Jan. 17, 1994) at 29.
35 40% of the first $50,000 recovered, 33a% of the next $50,000, 25% of the next
$500,000, and 15% of any additional amount.

CRS-10
award that may be paid for attorney fees; and (3) provision for court review of the
reasonableness of the attorney fees.”36
H.R. 5 does not address whether plaintiffs’ attorneys would be allowed to “add
costs, including expert-witness fees, travel, and photocopying on top of the cap[.]
Or must costs be recouped from the lawyer’s . . . recovery? In medical malpractice
cases, where costs can skyrocket, the difference is significant.”37
Pro. Advocates of limiting contingent fees argue that such fees cause juries to
inflate verdicts, result in windfalls for lawyers, and prompt lawyers to file frivolous
suits in the hope of settling. They also argue that, where there is no dispute as to
liability, but only as to damages, there is no contingency and therefore no justification
for contingent fees. One study proposed that, if a defendant makes a prompt
settlement offer, then counsel fees be “limited to hourly rate charges and capped at
10% of the first $100,000 of the offer and 5% of any greater amounts. . . . When
plaintiffs reject defendants’ early offers, contingency fees may only be charged
against net recoveries in excess of such offers.”38
Con. Opponents of limiting contingent fees argue that such fees enable injured
persons, faced with medical bills and lost wages, to finance lawsuits that they
otherwise could not afford – especially if their injury has disabled them from
working. They argue that lawyers are unlikely to file frivolous lawsuits if they stand
to recover nothing if they lose, and that studies have shown that contingent fees do
not encourage frivolous lawsuits.39 Finally, they note, “[a]n hourly fee arrangement
[such as defendants’ lawyers use] can encourage delay, inefficiency, and unnecessary
action,” whereas “[a] contingent fee is an added inducement for a lawyer to be
efficient and expeditious.”40
Creating a Federal Statute of Limitations
H.R. 5 (§ 3) provides:
The time for the commencement of a health care lawsuit shall be 3 years after the
date of manifestation of injury or 1 year after the claimant discovers, or through
the use of reasonable diligence should have discovered, the injury, whichever
occurs first. In no event shall the time for commencement of a health care
lawsuit exceed 3 years after the date of manifestation of injury unless tolled for
any of the following – (1) upon proof of fraud; (2) intentional concealment; or
36 American Medical Association, AMA Tort Reform Compendium (1989) at 19, 132-134;
see also, Office of Technology Assessment, Impact of Legal Reforms on Medical
Malpractice Costs
(1993) at 93.
37 Schwartz, supra note 6 at 30.
38 The Manhattan Institute, Rethinking Contingency Fees (1994) at 28, 29.
39 See studies cited in Association of Trial Lawyers of American, Keys to the Courthouse:
Quick Facts on the Contingent Fee System
(1994) at 4, 5.
40 Id. at 6.

CRS-11
(3) the presence of a foreign body, which has no therapeutic or diagnostic
purpose or effect, in the person of the injured person.
It is not clear whether this provision is, strictly speaking, a statute of limitations.
A statute of limitations is typically an affirmative defense, which means that the
defendant must raise it; if the defendant fails to raise it, then the plaintiff may sue
regardless of how much time has passed.41 H.R. 5, by contrast, could be interpreted
to place the burden of proof on the plaintiff to show that his injury occurred within
the time period allowed. The Judiciary Committee report calls H.R. 5’s time
limitation a “statute of limitations”42; the Energy and Commerce Committee report
does not.43
The statute of limitations for medical malpractice suits under state law is
typically two or three years, starting on the date of injury. Sometimes, however, the
symptoms of an injury do not appear immediately, or even for years after, malpractice
occurs. Many states therefore have adopted a “discovery” rule, under which the
statute of limitations starts to run only when the plaintiff discovers, or in the exercise
of reasonable diligence, should have discovered, his injury – or, sometimes, his injury
and its cause. Plaintiffs would favor allowing a statute of limitations to run only
upon discovery of an injury and its cause because it may take additional time after
symptoms become manifest to discover that an injury was caused by medical
malpractice.
H.R. 5, rather than imposing a time limitation that begins on the date of injury
or on the date of discovery of the injury, would cut off the right to sue upon the
earlier of two different periods – 3 years and 1 year – that begin, respectively, on the
date of manifestation of injury and discovery of the injury. H.R. 5 defines neither
term, but the Committee on Energy and Commerce explains the former term: “The
term ‘manifestation of injury’ means the injury has become reasonably evident.
Thus, if someone unknowingly receives tainted blood, ‘manifestation of injury’ is not
the date of receiving the blood. Instead, it is the date on which adverse symptoms
become reasonably evident.”44
The discovery of the injury, then, would apparently occur on the date that the
patient learns that his blood is tainted. Suppose that medical tests reveal the tainted
blood one year after the patient experienced his first symptoms. There would still be
two years to run on the three-year manifestation period, but the patient would
apparently have to sue within one year of discovering that his blood is tainted – even
if it takes more than one year to learn that his blood’s being tainted is the result of
medical malpractice. A patient could also apparently discover his injury, perhaps
through a routine medical test, before its symptoms become manifest, and, again, the
one-year discovery time period would apparently apply.
41 See, e.g., Federal Rule of Civil Procedure 8(c).
42 H.Rept. 108-32, Part 1 (Mar. 11, 2003) at 59.
43 H.Rept. 108-32, Part 2 (Mar. 11, 2003) at 28.
44 Id.

CRS-12
Periodic Payment of Damages
Traditionally, damages are paid in a lump sum, even if they are for future
medical care or future lost wages. In recent years, however, “attorneys for both
parties in damages actions have occasionally foregone lump-sum settlements in favor
of structured settlements, which give the plaintiff a steady series of payments over
a period of time through the purchase of an annuity or through self-funding by an
institutional defendant.”45 “There are many forms of periodic payment statutes
throughout the United States. Many of these involve mind boggling calculations,
creating barriers for those who use the periodic payment process.”46
H.R. 5 (§ 8) provides:
In any health care lawsuit, if an award of future damages, without reduction to
present value, equaling or exceeding $50,000, is made against a party with
sufficient insurance or other assets to fund a periodic payment of such a
judgment, the court shall, at the request of any party, enter a judgment ordering
that the future damages be paid by periodic payments. In any health care lawsuit,
the court may be guided by the Uniform Periodic Payment of Judgments Act
promulgated by the National Conference of Commissioners on Uniform State
Law.47
S. 11 (§ 8) is identical except that it would make use of the Uniform Periodic
Payment of Judgments Act mandatory.
By contrast with H.R. 5 and S. 11, the periodic payment provision of President
Clinton’s proposed Health Security Act48 would have allowed any party to request
periodic payments of all damages, not just future damages, and not just damages of
a specified amount.
Section 8 of H.R. 5, quoted above, states that awards of future damages shall not
be reduced to present value for the purpose of determining whether it equals the
$50,000 minimum necessary for a party to require the court to order periodic
payments. This is apparently a different question from whether the amount of the
award of future damages that the defendant must pay would be converted to present
value. Not to require such conversion “could be a very major change, significantly
reducing awards, if it is intended to allow a defendant to pay, for example, a $1
million award over a 10-year period at $100,000 a year. On the other hand, if it
requires the jury award to be converted into present value terms – an annuity with a
present value of $1 million – the reform doesn’t mean that much; as a practical
45 Annotation, Propriety and Effect of “Structured Settlements” Whereby Damages are Paid
in Installments Over a Period of Time, and Attorneys’ Fees Arrangements in Relation
Thereto
, 31 ALR4th 95, 96.
46 Paul J. Lesti, STRUCTURED SETTLEMENTS (2d ed., 1993) at § 21.5.
47 The Uniform Act was promulgated in 1990; it was preceded in 1980 by the Model
Periodic Payment of Judgments Act.
48 Section 5306 of H.R. 3600 and S. 1757, 103d Congress.

CRS-13
matter, the defendant would be paying the same amount as before.”49 The defendant,
that is, would have to spend $1 million for an annuity that would yield the plaintiff
more than $1 million, over the years of its distribution. Had the defendant paid the
plaintiff a lump sum of $1 million, then the plaintiff could have purchased that same
annuity.
H.R. 5 does not explicitly address the question of whether the amount of the
award of future damages would be converted to present value. The Uniform Periodic
Payment of Judgments Act, however, which H.R. 5 incorporates, provides in section
5(a) that, in a trial, “evidence of future changes in the purchasing power of the dollar
is admissible on the issue of future damages.” This suggests that an award of future
damages will be already be increased to take account of future inflation, and there
arguably would be no need to convert it to present value to ensure that the plaintiff
receives his due. The lesser amount that the defendant might pay for an annuity
might, that is, equal the amount he would have paid had evidence of future changes
in the purchasing power of the dollar not been admissible.50
Another issue that H.R. 5 does not explicitly address in connection with periodic
payments is the effect of the plaintiff’s death on unpaid amounts. The Uniform
Periodic Payment of Judgments Act provides in section 13 that, “liability to a
claimant for periodic payments not yet due for medical expenses terminates upon the
claimant’s death.” Damages for other economic losses, however, except in actions
for wrongful death, must be paid to the plaintiff’s estate.
Pro. “Both defendants and plaintiffs are often benefited by such arrangements:
the defendant need not immediately pay out a large sum of money, since the cost of
the annuity or other method of payment is less than a conventional lump-sum
settlement; and the plaintiff is prevented from dissipating a recovery and is provided
a secure, tax-free income for a long period of time without having to assume the costs
and risks of managing an investment portfolio .”51 “Periodic payment of malpractice
awards is nothing more than what lawyers have been doing for years in structured
settlements. It is workable and often the only means of providing full compensation
for an injured claimant when resources are otherwise unavailable.”52
Con. If periodic payments will in fact benefit plaintiffs, then they will agree
to them, as they sometimes do, without legislation. Some plaintiffs, however, may
prefer to invest their awards themselves and not risk the insolvency of the defendant
or the company from which the defendant purchases an annuity.
49 See Schwartz, supra note 6 at 30.
50 The Judiciary Committee report, supra note 42, at 59, is consistent with this
interpretation: “[T]he defendant is able to acquire the annuity or similar system of secured
payment at a price less than the aggregate amount of the damages that must be paid to the
plaintiff.”
51 Annotation, supra note 45, at 96.
52 A. Blackwell Stieglitz, Defense Counsel Will Find the President’s Medical Malpractice
Proposals So Benign as to be Meaningless
, National Law Journal (Jan. 17, 1994) at 27.

CRS-14
Appendix: Fifty State Survey of Caps on Punitive
Damages and Noneconomic Damages
The following chart summarizes state laws that impose caps on punitive
damages and noneconomic damages in medical malpractice cases. An empty box in
the chart indicates that the state apparently imposes no cap in medical malpractice
suits, either because the state constitution prohibits caps or because the state
legislature has chosen not to enact a cap. We quote (in italics) some, but not
necessarily all, state constitutional provisions that prohibit caps.
The caps listed in the chart, as well as the entry “punitive damages prohibited,”
do not necessarily apply to tort actions other than for medical malpractice, though in
many cases they do.
The term “economic damages” refers to past and future monetary expenses of
an injured party, such as medical bills, rehabilitation expenses, and lost wages.
“Noneconomic damages” refers primarily to damages for pain and suffering.
Economic and noneconomic damages are both compensatory damages; i.e., they are
intended to compensate the injured party.
Punitive damages (also called exemplary damages), by contrast, are awarded not
to compensate plaintiffs but to punish and deter particularly egregious conduct on the
part of defendants – generally meaning reckless disregard for the safety of others, and
more than negligence or even gross negligence. Punitive damages are noneconomic
by nature, but state statutes that impose caps on punitive damages usually treat them
separately from compensatory noneconomic damages.
The dollar amount in the right-hand column refers to the cap on compensatory
noneconomic damages, except that “total cap” means a cap on all damages –
economic, noneconomic, and punitive damages – combined. Caps that a state’s
highest court have declared to violate the state’s constitution are not necessarily
noted.

CRS-15
STATE
PUNITIVE DAMAGES
NONECONOMIC DAMAGES
Alabama
§ 6-11-21. The greater of three
§ 6-5-544, which imposes a
times compensatory damages or
$400,000 cap on “noneconomic
$500,000 ($1.5 million if
losses, including punitive
physical injury), except that, if
damages,” held to violate state
the defendant is a small
constitution. Moore v. Mobile
business (net worth of $2
Infirmary Ass’n, 592 So.2d 156
million or less), then cap is
(Ala. 1991).
greater of $50,000 or 10% of
the business’ net worth.
§ 6-5-547. $1,000,000 total cap in
Amounts to be adjusted in
wrongful death actions against a
accordance with the consumer
health care provider; to be
price index. No caps in class
adjusted in accordance with
actions or in actions for
consumer price index.
wrongful death or for intention-
al infliction of physical injury.
Alaska
§ 09.17.020. Greater of 3 times
§ 09.17.010. “$400,000 or the
compensatory damages or
injured person’s life expectancy in
$500,000, except if defendant
years multiplied by $8,000,
was motivated by financial gain
whichever is greater,” but
and actually knew the adverse
“$1,000,000 or the person’s life
consequences, then the greatest
expectancy in years multiplied by
of 4 times compensatory
$25,000, whichever is greater,
damages, 4 times financial gain, when the damages are awarded for
or $7,000,000.
severe permanent physical impair-
ment or severe disfigurement.”
Arizona
Arizona Constitution, Art. 2,
the amount of damages to be
§ 31, provides: “No law shall
recovered for causing the death or
be enacted in this State limiting
injury of any person.”
Arkansas
§ 16-55-208. The greater of
Arkansas Constitution, Art. 5,
$250,000 or three times
§ 32, provides “[N]o law shall be
compensatory damages, not to
enacted limiting the amount to be
exceed $1,000,000, to be
recovered for injuries resulting in
adjusted as of 1/1/06 and at
death or for injuries to persons or
three-year intervals thereafter,
property . . . .”
in accordance with the CPI. No
cap if defendant intentionally
caused injury or damage.
California
Civil Code § 3333.2. $250,000.
Colorado
§ 13-21-102. The amount of
§§ 13-21-102.5, 13-64-302.
actual damages awarded, but 3
$250,000 noneconomic cap, but
times that amount if the
$500,000 cap if court finds
defendant continues to act in a
justification for more than
willful and wanton manner
$250,000. Both caps adjusted for
during the pendancy of the case.
inflation. $1,000,000 total cap in
suits against health care providers.

CRS-16
STATE
PUNITIVE DAMAGES
NONECONOMIC DAMAGES
Connecticut
Delaware
District of
Columbia
Florida
§ 766.207(7)(d). Punitive
§ 766.118, as added by 2003 Fla.
damages prohibited.
Laws Ch. 416, effective 9/15/03.
$500,000, except $1 million cap
on all practitioners in the
aggregate if permanent vegetative
state or death, or if, because of
special circumstances,
noneconomic harm is particularly
severe and injury was catastrophic.
For non-practitioners, above caps
are $750,000 and $1.5 million,
respectively. For emergency
services, caps are $150,000 for
practitioners, $750,000 for non-
practitioners, with maximum
damages recoverable by all
claimants $300,000 and $1.5
million, respectively.
Georgia
§ 51-12-5.1. $250,000.
Hawaii
§ 663-8.7. $375,000 (cap does not
apply to intentional torts).
Idaho
§ 6-1604, as amended by 2003
§ 6-1603. $250,000 for actions
Session Laws, Ch.122. For
accruing after 7/1/03, subject to
actions accruing after 7/1/03,
increase or decrease in accordance
the greater of $250,000 or three
with the average annual wage.
times compensatory damages.
Illinois
735 ILCS 5/2-1115. “Punitive
None. (Cap in 735 ILCS 5/2-
damages are not recoverable in
1115.1 held unconstitutional in
healing art and legal
Best v. Taylor Machine Works,
malpractice cases.”
689 N.E.2d 1057 (Ill. 1997)).
Indiana
§ 34-51-3-4. Greater of 3 times
§ 34-18-14-3. $1,250,000. For
compensatory damages or
“qualified” health care provider,
$50,000.
$250,000 total cap.
Iowa

CRS-17
STATE
PUNITIVE DAMAGES
NONECONOMIC DAMAGES
Kansas
§ 60-3702(e), (f). The lesser of
the defendant’s annual gross
income or $5,000,000, but if
the profitability of the mis-
conduct exceeds such amount,
the cap is 1.5 times the profit.
Kentucky
Kentucky Constitution, § 54,
recovered for injuries resulting in
provides: “The General
death, or for injuries to person or
Assembly shall have no power
property.”
to limit the amount to be
Louisiana
Punitive damages prohibited at
§ 40:1299.42. $500,000 total cap,
common law.
exclusive of “future medical care
and related benefits” (as defined).
“Qualified” health care provider:
$100,000 total cap per patient.
Maine
T. 18-A, § 2-804(b). $75,000
for wrongful death actions.
Maryland
Courts and Judicial Proceedings
§ 11-108. $500,000 if cause of
action arises on or after Oct. 1,
1994, increased by $15,000 on
Oct. 1 of each succeeding year for
causes of action that arise on or
after the date of the increase.
Massachusetts
Ch. 229, § 2. In wrongful death
Ch. 231, § 60H. $500,000, unless
cases, not less than $5,000
death resulted or “special
where punitive damages are
circumstances” are found. Ch.
appropriate. Punitive damages
231, § 85K. $20,000 total cap if
otherwise prohibited at
charitable institution.
common law.
Michigan
Exemplary damages “are
§ 600.1483. $280,000,
awardable where the defendant
“recoverable by all plaintiffs,
commits a voluntary act which
resulting from the negligence of
inspires feelings of humiliation,
all defendants,” but $500,000 if a
outrage, and indignity. . . . The
serious injury enumerated in the
purpose of exemplary damages
statute occurred.
is not to punish the defendant,
but to render the plaintiff
whole. When compensatory
damages can make the injured
party whole, exemplary
damages must not be awarded.”
Jackson Printing Co., Inc. v.
Mitan
, 425 N.W.2d 791 (Mich.
1988).

CRS-18
STATE
PUNITIVE DAMAGES
NONECONOMIC DAMAGES
Minnesota
Mississippi
§ 11-1-65. $20 million if
§ 11-1-60. $500,000 for claims
defendant’s net worth exceeds
filed before 7/1/2011; $750,000
$1 billion; $15 million if it
from 7/1/2011 - 6/30/2017; $1
exceeds $750 million but is not
million from 7/1/2017. Cap does
more than $1 billion; $10
not apply if the judge determines
million if it exceeds $500
that a jury may impose punitive
million but is not more than
damages, and does not limit
$750 million; $7½ million if it
damages for disfigurement.
exceeds $100 million but is not
more than $500 million; $5
million if it exceeds $50
million but is not more than
$100 million; 4% of defen-
dant’s net worth if defendant’s
net worth is $50 million or less.
Missouri
§ 538.210. $350,000 per
defendant, subject to increase or
decrease each January 1 to reflect
inflation or deflation.
Montana
§ 25-9-411. $250,000.
Nebraska
Punitive damages prohibited at
§ 44-2825. $1,250,000.
common law.
Nevada
§ 42.005. Three times
§ 41A.031. $350,000, but a higher
compensatory damages if
award may be made if “gross mal-
compensatory damages are
practice” or if “justified because of
$100,000 or more; $300,000 if
special circumstances.” If
they are less.
defendant has insurance of not less
than $1 million per occurrence and
$3 million in the aggregate, then
noneconomic damages may not
exceed the amount of the policy
after subtracting the economic
damages awarded.
New
§ 507:16. “No punitive
§ 507-C:7. $250,000.
Hampshire
damages shall be awarded in
any action, unless otherwise
provided by statute.” No
statute provides for punitive
damages in medical malpractice
actions.
New Jersey
2A:15-5.14. Greater of 5 times
compensatory damages or
$350,000.

CRS-19
STATE
PUNITIVE DAMAGES
NONECONOMIC DAMAGES
New Mexico
§ 41-5-6. $600,000 total cap,
“[e]xcept for punitive damages
and medical care and related
benefits,” which are not subject to
the cap. “Monetary damages shall
not be awarded for future medical
expenses in malpractice claims.”
New York
North Carolina
§ 1D-25. Greater of 3 times the
amount of compensatory
damages or $250,000.
North Dakota
§ 32-03.2-11(4). Greater of
§ 32-42-02. $500,000.
two times compensatory
damages or $250,000.
Ohio
§ 2323.43, as amended by 2001
Ohio S.B. 281 (approved by the
Governor on Jan. 10, 2003). The
greater of $250,000 or three times
plaintiff’s economic loss, to a
maximum of $350,000 for each
plaintiff or a maximum of
$500,000 for each occurrence.
But, if specified serious injuries
occur, cap is $500,000 for each
plaintiff or $1 million for each
occurrence.
Oklahoma
T. 23, § 9.1. Where reckless
T. 63, § 1-1708.1F (added by Ch.
disregard, greater of $100,000
390, § 6 (2003)). $300,000 per
or actual damages awarded.
action regardless of the number of
Where intentionally and with
defendants, but cap applies only in
malice, greatest of $500,000,
cases involving “[p]regnancy or
twice actual damages awarded,
labor and delivery, including the
or financial benefit derived by
immediate post-partum period,”
defendant. If court finds
and “[e]mergency care in the
beyond a reasonable doubt that
emergency room of a hospital or
defendant engaged in conduct
follow-up to” such care. Cap does
life-threatening to humans, then
not apply if judge finds clear and
no cap.
convincing evidence of negli-
gence, or in wrongful death action.
Cap terminates July 1, 2008.

CRS-20
STATE
PUNITIVE DAMAGES
NONECONOMIC DAMAGES
Oregon
§ 18.550. Prohibited against
§ 18.560. $500,000 cap held to
specified health practitioners.
violate Oregon Constitution, Art.
VII, § 3, which provides that “no
fact tried by a jury shall be
otherwise re-examined.” But the
cap apparently applies in wrongful
death actions because there is no
right to a jury trial for them. Lakin
v. Senko Products, Inc.
, 987 P.2d
463 (Ore. 1999).
Pennsylvania
40 P.S. § 1303.505(d). “Except
Pennsylvania Constitution, Art. 3,
in cases alleging intentional
§ 18, provides: “[I]n no other
misconduct, punitive damages
cases [than those involving
against an individual physician
employees] shall the General
shall not exceed 200% of the
Assembly limit the amount to be
compensatory damages
recovered for injuries resulting in
awarded. Punitive damages,
death, or for injuries to persons or
when awarded, shall not less
property . . . .” (Art. 3, § 18 is
than $100,000 unless a lower
titled “Compensation laws
verdict amount is returned by
allowed to General Assembly,”
the trier of fact.”
which may explain the existence
of a cap on punitive damages.)
40 P.S. § 1303.712(c)(2)(i) caps
total liability of the Medical
Professional Liability Catastrophe
Loss Fund at “$500,000 for each
occurrence and $1,500,000 per
annual aggregate.”
Rhode Island
South Carolina
South Dakota
§ 21-3-11. $500,000 “total
general [noneconomic] damages”;
“no limitation on the amount of
special [economic] damages.”
Tennessee

CRS-21
STATE
PUNITIVE DAMAGES
NONECONOMIC DAMAGES
Texas
Civil Practice and Remedies
Civil Practice and Remedies
§ 41.008, as amended by 2003
§ 74.301 et seq. (2003 Tex. Gen.
Tex. Gen. Laws 204, effective
Laws 204), effective 9/1/03.
9/1/03. Greater of (1) two
$250,000 per claimant against a
times the amount of economic
physician or health care provider
damages plus the amount of
and $250,000 per claimant against
noneconomic damages up to
a health care institution. If more
$750,000; or (2) $ 200,000.
than one health care institution is
liable, cap against them all is
$500,000 per claimant. In
wrongful death or survival action
against a physician or health care
provider, cap on total damages
(including punitive damages) is
$500,000 per claimant, subject to
increase or decrease in accordance
with consumer price index.
Utah
§ 78-14-7.1. $400,000, adjusted
for inflation.
Vermont
Virginia
§ 8.01-38.1. $350,000.
§ 8.01-581.15. $1.5 million total
cap, to increase by $50,000 every
July 1 from 2000 through 2006,
and by $75,000 on July 1, 2007
and 2008, with no subsequent
increases.
Washington
Punitive damages prohibited at
common law.
West Virginia
§ 55-7B-8 (as amended in 2003).
$250,000 per occurrence,
regardless of the number of
plaintiffs or defendants, except cap
is $500,000 if death or permanent
serious injury. Annual increases
based on consumer price index.
Caps apply only if defendant has
insurance of at least $1 million per
occurrence.
Wisconsin
§§ 655.017, 893.55(4), 895.04(4).
$350,000, adjusted annually to
reflect changes in the consumer
price index, except $500,000 in
the case of a deceased minor.

CRS-22
STATE
PUNITIVE DAMAGES
NONECONOMIC DAMAGES
Wyoming
Wyoming Constitution, Art. 10,
amount of damages to be
§ 4, provides: “No law shall be
recovered for causing the injury
enacted limiting the
or death of any person.”