.

Medical Malpractice Liability Reform:
Legal Issues and 50-State Surveys of Caps on
Noneconomic and Punitive Damages and of
Punitive Damages Burden of Proof Standards
Vivian S. Chu
Legislative Attorney
March 1, 2011
Congressional Research Service
7-5700
www.crs.gov
R41661
CRS Report for Congress
P
repared for Members and Committees of Congress

---

.
Medical Malpractice Liability Reform: Fifty-State Surveys

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 enact tort reform laws that would
affect actions for medical malpractice liability brought under state law. In the 112th Congress,
H.R. 5, the Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act was
introduced by Representative Phil Gingrey on January 24, 2011, and was marked up on February
9 and 16, 2011, by the House Committee on the Judiciary. This bill would preempt state law with
respect to certain aspects of medical malpractice lawsuits. Past Congresses have considered
similar measures.
This report does not examine the effects of medical malpractice litigation or medical malpractice
liability reform on the health care system or on the cost of liability insurance premiums; rather, it
explains specific tort reform proposals that are commonly included in medical malpractice
liability reform bills, and discusses the individual arguments in favor of and against such
proposals from a legal perspective. These proposals include imposing caps on noneconomic
damages and punitive damages; permitting defendants to be held liable for no more than their
share of responsibility for a plaintiff’s injuries; requiring that damage awards be reduced by
amounts plaintiffs receive from collateral sources such as health insurance; limiting lawyers’
contingent fees; creating a federal statute of limitations; and requiring that awards of future
damages in some cases be paid periodically rather than in a lump sum. It also includes, where
appropriate, a description of H.R. 5’s provisions with respect to these categories.
An Appendix to this report includes two tables. The first table (Table A-1) is a 50-state survey of
caps on noneconomic and punitive damages. The second table (Table A-2) is a 50-state survey of
the burden of proof standards for punitive damages and whether a state requires a separate
proceeding to determine such damages.

Congressional Research Service

---

.
Medical Malpractice Liability Reform: Fifty-State Surveys

Contents
Introduction ................................................................................................................................ 1
The Tort of Medical Malpractice ................................................................................................. 1
Noneconomic Damages............................................................................................................... 2
Arguments For Caps on Noneconomic Damages ................................................................... 3
Arguments Against Caps on Noneconomic Damages............................................................. 3
Punitive Damages ....................................................................................................................... 3
Arguments For Caps on Punitive Damages............................................................................ 5
Arguments Against Caps on Punitive Damages ..................................................................... 5
Limiting Joint and Several Liability ............................................................................................ 6
Arguments For Limiting Joint and Several Liability .............................................................. 6
Arguments Against Limiting Joint and Several Liability ........................................................ 7
Abolishing the Collateral Source Rule......................................................................................... 7
Arguments For Abolishing the Collateral Source Rule........................................................... 8
Arguments Against Abolishing the Collateral Source Rule..................................................... 8
Limiting Attorneys’ Contingent Fees ........................................................................................... 8
Arguments For Limiting Attorneys’ Contingent Fees ............................................................. 9
Arguments Against Limiting Attorneys’ Contingent Fees....................................................... 9
Periodic Payment of Damages................................................................................................... 10
Arguments For the Periodic Payment of Damages ............................................................... 11
Arguments Against the Periodic Payment of Damages......................................................... 11
Creating a Federal Statute of Limitations................................................................................... 11

Tables
Table A-1. State Caps on Noneconomic and Punitive Damages in Medical Malpractice
Lawsuits ................................................................................................................................ 14
Table A-2. Punitive Damages—Burden of Proof, Standard, and Separate Proceeding................. 25

Appendixes
Appendix. Fifty-State Surveys................................................................................................... 13

Contacts
Author Contact Information ...................................................................................................... 33
Acknowledgments .................................................................................................................... 33

Congressional Research Service

---

.
Medical Malpractice Liability Reform: Fifty-State Surveys

Introduction
This report does not examine the merits or possible effects of medical malpractice litigation or
medical malpractice liability reform on the health care system or on the cost of liability insurance
premiums.1 Rather, this report explains specific tort reform proposals that are commonly
considered in medical malpractice liability reform measures, and discusses their individual
arguments in favor of and against such proposals from a legal perspective. These include
imposing caps on noneconomic damages and punitive damages; permitting defendants to be held
liable for no more than their share of responsibility for a plaintiff’s injuries; requiring that damage
awards be reduced by amounts plaintiffs receive from collateral sources such as health insurance;
limiting lawyers’ contingent fees; creating a federal statute of limitations; and requiring that
awards of future damages in some cases be paid periodically rather than in a lump sum. Where
appropriate, the report includes a brief summary of the tort reform measures included in H.R. 5.
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 50 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 enact tort reform laws
that would affect actions for medical malpractice liability brought under state law.
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.”2 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.”3 The following is a
traditional description of the standard of care to which doctors are held to avoid liability for
medical malpractice:

1 For example, advocates of medical malpractice liability reform argue that current state tort law provides a costly and
inefficient mechanism for resolving claims of health care liability and compensating injured patients, and that
increasing liability insurance premiums are forcing doctors to curtail their medical practices and to engage in excessive
“defensive medicine.” Opponents of medical malpractice reform have argued that there is a very minimal relationship
between health care costs and malpractice litigation, and that, “in reality, very few injured patients ever file a medical
negligence lawsuit.” See American Association for Justice, Medical Negligence: A Primer, February 2011 at 8. See
also David M. Studdert, Michelle M. Mello, Atul A. Gawande, Tejal K. Ghandi, Allen Kachalia, Catherin Yoon, Ann
Lousie Puopolo, Troyen A. Brenna, Claims, Errors and Compensation Payments in Medical Malpractice Litigation,
354 New Eng. J. Med. 2024 (2006). For more information on medical malpractice insurance and health reform, see
CRS Report R40862, Medical Malpractice Insurance and Health Reform, by Baird Webel, Vivian S. Chu, and
Bernadette Fernandez.
2 Restatement (Second) of Torts, § 282.
3 W. Page Keeton, Prosser and Keeton on Torts, § 31 (5th ed. 1984).
Congressional Research Service
1

---

.
Medical Malpractice Liability Reform: Fifty-State Surveys

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.4
Today, however, many jurisdictions utilize some variation of the national standard of care. As one
U.S. court of appeals explained:
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
While most medical malpractice actions rely on the theory of negligence, medical malpractice
liability, as noted, may arise from an intentional tort as well as from negligence. In such actions,
the practitioner is generally alleged to have intentionally acted in a fashion that ultimately caused
harm to the patient.6 The general difference between an action based in negligence and one based
in intentional tort is that “a medical procedure poorly performed might constitute negligence,
while a medical procedure correctly performed that was not consented to might constitute an
intentional tort.”7
Noneconomic Damages
Economic damages refer to monetary losses that result from an injury, such as medical expenses,
lost wages, and rehabilitation costs. Noneconomic damages consist primarily of damages for pain
and suffering. Determining the amount of noneconomic damages is traditionally subject to broad
discretion on the part of juries, which must equate two variables—money and suffering—that are
essentially incommensurable. Judges, however, have the authority to reduce damage awards that
they find excessive.8
Section 4 of the H.R. 5 would not limit the amount of economic damages a claimant recovers in a
health care lawsuit.9 Economic damages under the bill would be defined as monetary losses
incurred, such as past and future medical expenses, loss of past and future earnings, cost of
obtaining domestic services, loss of employment, and loss of business or employment
opportunities.10 However, it generally would limit noneconomic damages, if awarded, to

4 David M. Harney, Medical Malpractice § 21.2 (3d ed. 1993).
5 Nalder v. West Park Hospital, 254 F.3d 1168, 1176 (10th Cir. 2001).
6 Marcia M. Boumil, et al., Medical Liability 65 (2d ed. 2003).
7 Id.
8 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.
9 H.R. 5, § 4(a). A “health care lawsuit,” defined as: any health care liability claim ... or action concerning the provision
of health care goods or services or any medical product in or affecting interstate commerce, brought in a State or
Federal court or pursuant to an alternative dispute resolution system against a health care provider, a health care
organization, or the manufacturer, distributor, supplier, marketer, promoter, or seller of a medical product regardless of
the theory of liability on which the claim is based, or the number of claimants, plaintiffs, defendants, or other parties, or
the number of claims or causes of action, in which the claimant alleges a health care liability claim (emphasis added).
H.R. 5 § 9(7).
10 H.R. 5, § 9(6).
Congressional Research Service
2

---

.
Medical Malpractice Liability Reform: Fifty-State Surveys

$250,000, 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 injury.11 Noneconomic damages
would be defined as damages for physical and emotional pain, suffering, inconvenience, physical
impairment, mental anguish, disfigurement, loss of enjoyment of life, loss of society and
companionship, loss of consortium (other than loss of domestic service), hedonic damages, injury
to reputation, and all other nonpecuniary losses of any kind of nature.12
Arguments For Caps on Noneconomic Damages
Advocates for caps on noneconomic damages argue that a lack of caps guarantees inconsistency
and unpredictability in the tort system, and forces insurers to counter this uncertainty by charging
higher premiums. Disagreement over the amount of pain and suffering damages is a major
obstacle to out-of-court settlement, thus increasing litigation and, as advocates maintain, coercing
insurers to overpay on settlements of smaller claims. Further complicating the problem, they
argue, is a tendency of juries to inflate pain and suffering awards to cover some or all of the
plaintiff’s attorney’s fees.
Arguments Against Caps on Noneconomic Damages
It has been argued that caps on noneconomic damages could have disparate effects on different
patient populations.13 For example, elderly plaintiffs and poorer individuals who are involved in a
malpractice case may not be able to claim much in economic damages, such as lost wages. Thus,
capping noneconomic damages would leave these types of plaintiffs little in damages from a
malpractice suit and therefore decreased incentive for a lawyer to represent them. Furthermore,
opponents of a cap assert that the $250,000, included in H.R. 5, was adopted by California in
1975 “at a time when pain-and-suffering awards rarely exceeded that amount,” and that more than
thirty years later inflation has taken a toll.14
Punitive Damages
Punitive damages (also called exemplary damages) 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.

11 H.R. 5, § 4(b). Section 11 of provides that H.R. 5 would not preempt “any State law (whether effective before, on or
after the date of enactment ... ) that specifies a particular monetary amount of compensation 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.” H.R. 5 § 11(c).
12 H.R. 5, § 9(15).
13 Health Affairs, Medical Malpractice and Errors: Issue Update, Medical Liability and the Prospect of National Tort
Reform, September 7, 2010. See also Peter Perlman, Don’t Punish the Injured, American Bar Association Journal (May
1986) at 34 (“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.”).
14 An amendment to H.R. 5 to increase the $250,000 cap to $1,977,500 and index it to the Consumer Price Index
Edward was rejected during the House Committee on the Judiciary mark up. See also Felsenthal, Why a Medical Award
Cap Remains Stuck at $250,000, Wall Street Journal (Nov. 1995).
Congressional Research Service
3

---

.
Medical Malpractice Liability Reform: Fifty-State Surveys

Punitive damages are noneconomic by nature, but state statutes that impose caps on punitive
damages usually treat them separately from compensatory noneconomic damages.15
The mere commission of a tort is generally not sufficient to obtain an award of punitive damages.
As one treatise states:
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.16
Among the restrictions that have been proposed with regard to punitive damages, besides that
they be capped, are (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, 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.17
Section 7 of H.R. 5 would limit punitive damages to the greater of $250,000 or two times the
amount of economic damages awarded, although a jury would not be informed of the limitation.18
Punitive damages would not be awarded in a health care lawsuit where a judgment for
compensatory (i.e., economic and noneconomic) damages is not rendered.19
Under the bill, a claimant would not be permitted to make a demand for punitive damages when
initially filing the health care lawsuit. Upon a motion by the claimant, a court would be permitted
to allow the claimant to amend his or her pleading only after a hearing and a finding by the court
that the claimant has established by a substantial probability that he or she will prevail on the
claim for punitive damages.20 H.R. 5 provides that punitive damages only would be awarded if it
is proven by clear and convincing evidence that the defendant acted with malicious intent to
injure or that the defendant deliberately failed to avoid unnecessary injury that he or she knew the

15 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 measure of compensation to the plaintiff. We are aware that the propriety of this
doctrine has been questioned by some writers.” Day v. Woodworth, 54 U.S. (13 How.) 363, 371 (1851).
16 W. Page Keeton, supra note 3, § 2.
17 In BMW of North American, Inc. v. Gore, 517 U.S. 559, 616 (1996), the Supreme Court listed state statutes that
provide for this restriction.
18 H.R. 5, § 7(b)(2).
19 Like noneconomic damages, it is possible that a state’s law on punitive damages would not be affected. Section 11 of
H.R. 5 provides that the bill would not preempt “any State law (whether effective before, on or after the date of
enactment ... ) that specifies a particular monetary amount of compensation 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” (emphasis added). H.R. 5 § 11(c)
20 H.R. 5, § 7(a).
Congressional Research Service
4

---

.
Medical Malpractice Liability Reform: Fifty-State Surveys

claimant would suffer.21 Malicious intent to injure would be defined as intentionally causing or
attempting to cause physical injury other than providing health care goods or services.22
After the claimant is permitted to amend his pleading to make a demand for punitive damages,
either party would be allowed to request that the trier of fact consider: (1) whether punitive
damages are to be awarded and the amount of such award, and (2) the amount of punitive
damages following a determination of punitive liability. If there is a separate proceeding, then no
evidence relevant to the claim for punitive damages would be admissible in any proceeding to
determine whether compensatory damages, which cover both economic and noneconomic
damages, are to be awarded.23 In determining the amount of punitive damages, the trier of fact
would be required to consider only the following: (1) the severity of the harm caused by the
conduct of such party; (2) the duration of the conduct or any concealment of it by such party; (3)
the profitability of the conduct to such party; (4) the number of products sold or medical
procedures rendered for compensation, as the case may be, that caused the harm complained of
by the claimant; (5) any criminal penalties imposed on such party as a result of the conduct
complained of; and (6) the amount of any civil fines assessed against such party as a result of the
conduct complained of by the claimant.24
Arguments For Caps on Punitive Damages
Similar to the arguments for capping noneconomic damages, advocates argue that a lack of cap
on punitive damages contributes to instability in the insurance system, among other things.25
Critics charge that punitive damage awards in medical malpractice cases “are often unfair,
arbitrary and unpredictable, and result in overkill.... [and] that reform is needed because there has
been an outpouring of ‘the most outrageous punitive damage awards’ in medical malpractice.”26
Although it has been acknowledged that punitive damage awards occur in a small number of
cases, “they can have a devastating impact on individual defendants and can impose big costs on
the economy as a whole.”27
Arguments Against Caps on Punitive Damages
Some argue that a cap on punitive damages does not lead to a reduction in medical malpractice
insurance premiums28 and that awards are not “multimillion dollar jackpots,” because of skewed

21 H.R. 5, § 7(a).
22 H.R. 5, § 9(13)
23 H.R. 5, § 7(a).
24 H.R. 5, § 7(b).
25 John C. Nelson, M.D., AMA President-Elect, AMA To Congress: Our Nation’s Liability System Threatens Patients’
Access to Health Care (Oct. 2003). See also Steven Salbu, Developing Rational Punitive Damage Policies: Beyond the
Constitution, 49 Fla. L. Rev. 247 (1997).
26 Michael Rustad and Thomas Koenig, Reconceptualizing Punitive Damages in Medical Malpractice: Targeting
Amoral Corporations, Not “Moral Monsters,” 47 Rutgers L. Rev. 975, 978, 980-981 (1995).
27 Mark Thompson, Applying the Brakes to Punitives—But is There Anything to Slow Down?, American Bar
Association Journal (Sept. 1997) at 68, 69.
28 Adam Glassman, The Imposition of Federal Caps in Medical Malpractice Liability Actions: Will They Cure the
Current Crisis in Health Care?, 37 Akron L. Rev. 417 (2004).
Congressional Research Service
5

---

.
Medical Malpractice Liability Reform: Fifty-State Surveys

data.29 Because punitive damages are meant to deter others, it has been said that they “must be
allowed to fill the gaps the criminal law leaves open.”30 Finally, plaintiffs often do not recover the
amounts that juries award, because trial judges often reduce punitive damages awards that they
find excessive. Furthermore, a recent Supreme Court decision “makes it easier for appellate
courts to reduce punitive damages.”31 It has been reported that “[s]ometimes, even before a jury
rules, a plaintiff has signed an agreement that limits how much money actually changes hands.”32
Limiting Joint and Several Liability
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. A plaintiff may not
recover more than once, but he may recover all his damages from fewer than all liable defendants.
Any defendant who pays more than its share of the damages is 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
such as 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.
Section 4 of the bill, which primarily addresses a cap on noneconomic damages, also provides
that where there are multiple defendants, the bill would make each party responsible for an
amount of damages that is in direct proportion to its individual percentage of fault, and it would
not make an individual liable for the share of any other person. The trier of fact would determine
the responsibility of each party for the claimant’s harm.33
Arguments For Limiting Joint and Several Liability
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

29 American Association for Justice, Medical Negligence: A primer for the Nation’s Health Care Debate at 10.
30 Lisa M. Broman, Punitive Damages: An Appeal for Deterrence, 61 Neb. L. Rev. 651, 680 (1982).
31 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.
32 Joseph T. Hallinan, In Malpractice Trials, Juries Rarely Have the Last Word, Wall Street Journal (Nov. 30, 2004).
33 H.R. 5, § 4(d).
Congressional Research Service
6

---

.
Medical Malpractice Liability Reform: Fifty-State Surveys

only tangential and who probably would not be joined except for the existence of joint and
several liability.”34
Arguments Against Limiting Joint and Several Liability
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. Common third
parties, i.e., collateral sources, include a health insurance company, an employer, or the
government. To abolish the collateral source rule would be to allow or require courts to reduce
damages by amounts a plaintiff receives or is entitled to receive from collateral sources.
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).35 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 or has paid the injured party. Though the collateral source rule may enable the
plaintiff to recover from both his insurer and the defendant, if there is subrogation, the plaintiff
must reimburse his insurer the amount it paid him. If the collateral source rule were eliminated,
then the defendant would not have to pay the portion of damages covered by a collateral source,
and the collateral source would apparently not be able to recover the amount it paid the plaintiff
through subrogation. In the medical malpractice context, therefore, eliminating the collateral
source rule would benefit liability insurers at the expense of health insurers.
There are some jurisdictions, however, have abolished the collateral source rule only in cases in
which there is no right of subrogation. In jurisdictions where there is no right of subrogation, the
collateral source would be unaffected by elimination of the collateral source rule (i.e., the health
insurer would still not recover its money), and the defendant would benefit by not having to pay
the plaintiff.36
Some proposals to abolish the collateral source rule have taken into account that the plaintiff may
have paid insurance premiums for his collateral source benefit. Such proposals, instead of
allowing a damage award to be reduced by the full amount of a collateral source benefit, allow it

34 Report of the Tort Policy Working Group on the Causes, Extent and Policy Implications of the Current Crisis in
Insurance Availability and Affordability 64 (Feb. 1986).
35 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....”
36 Michael F. Flynn, Private Medical Insurance and the Collateral Source Rule: A Good Bet?, 22 U. Told. L. Rev. 39,
49 (1990).
Congressional Research Service
7

---

.
Medical Malpractice Liability Reform: Fifty-State Surveys

to be reduced by the full amount of a collateral source benefit minus the amount the plaintiff paid
to secure that benefit. Other proposals would allow the defendant to introduce evidence of
collateral source payments, but do not specify whether the jury must reduce economic damages
awards by the amount of such payments.
Eliminating the collateral source rule could also indirectly reduce noneconomic damages awards,
because juries often set such awards as a multiple of economic damages. If the collateral source
rule were abolished, then the plaintiff could disclose to the jury only her out-of-pocket expenses,
or she could disclose her total economic damages before collateral source payments are deducted.
If the former, then the plaintiff might receive a lesser award of noneconomic damages.
H.R. 5 included a provision on collateral source benefits and introduction of evidence.. An
amendment that was adopted during the House Committee on the Judiciary mark-up eliminated
this provision from the bill.37
Arguments For Abolishing the Collateral Source Rule
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.38 Abolishing the collateral
source rule will reduce damage awards without denying plaintiffs full recovery of their damages.
Arguments Against Abolishing the Collateral Source Rule
Advocates of the collateral source rule cite the reason that the common law adopted it: it is
preferable for the victim rather than 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 may be cut back.39
Limiting Attorneys’ 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. Payment is
thus contingent upon there being a recovery. Plaintiffs agree to this arrangement in order to afford
representation without paying anything out-of-pocket, and lawyers agree to it because the
percentage they receive—usually from 33⅓ to 40%—generally amounts to more than an hourly
fee would. Many states regulate 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

37 Amendment 14 to H.R. 5.
38 Report of the Tort Policy Working Group, supra note 35.
39 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.
Congressional Research Service
8

---

.
Medical Malpractice Liability Reform: Fifty-State Surveys

of a maximum percentage of the award that may be paid for attorney fees; and (3) provision for
court review of the reasonableness of the attorney fees.”40
Legislation to limit contingency fees might consider specifying whether plaintiffs’ attorneys
would be allowed to add costs, including expert-witness fees, travel, and photocopying on top of
the cap, or whether costs would only be recovered from the amount the attorney recoups under
the cap. In medical malpractice cases, where costs can skyrocket, the difference is significant.
Section 5 of the H.R. 5 would empower the court to supervise the arrangements for the payment
of damages to protect against conflicts of interest (e.g., a claimant’s attorney having a financial
stake in the outcome by virtue of a contingency fee). The court would have the power to restrict
the payment of a claimant’s damage recovery to such attorney, and to redirect the damages to the
claimant.
The bill would impose a sliding scale for attorney fees. In any health care lawsuit, the total of all
contingency fees for representing all claimants would not exceed: (1) 40% of the first $50,000
recovered by the claimant(s); (2) 33⅓ % of the next $50,000 recovered by the claimant(s); (3)
25% of the next $500,000 recovered by the claimant(s); and (4) 15% of any amount where the
recovery is in excess of $600,000. The sliding scale would be applicable regardless of whether
the recovery is by judgment, settlement, mediation, arbitration, or any other form of alternative
dispute resolution.41
Arguments For Limiting Attorneys’ Contingent Fees
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.”42
Arguments Against Limiting Attorneys’ Contingent Fees
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 injuries have disabled them from working. They argue that lawyers are unlikely to file
frivolous lawsuits if they stand to recover nothing if they lose,43 and that studies have shown that

40 See National Conference of State Legislatures, State Medical Malpractice Laws 2010, available at
http://www.ncsl.org/default.aspx?tabid=18516.
41 H.R. 5, § 5.
42 The Manhattan Institute, Rethinking Contingency Fees 28, 29 (1994).
43 Stephen Daniels and Joanne Martin, It’s Deja Vu All Over Again: Plaintiff’s Lawyers and the Evolution of Tort Law
and Practice in Texas, American Bar Foundation (Mar. 2009), http://www.americanbarfoundation.org/research/project/
20.
Congressional Research Service
9

---

.
Medical Malpractice Liability Reform: Fifty-State Surveys

contingent fees do not encourage frivolous lawsuits.44 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.”45
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.”46 Many forms of periodic payment statutes
exist throughout the United States, and they can involve complicated calculations, “creating
barriers for those who use the periodic payment process.”47
Proposals concerning the periodic payment of damages have been applied to future damages as
well as to all damages. An issue that may arise in connection with awards of future damages is
whether such awards should 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.”48 Yet, if a jury is
required to convert an award—an annuity with a present value of $1 million—into its present
value, then the reform doesn’t mean that much. As a practical matter, the defendant would be
paying the same amount as before, because it would have to spend $1 million for an annuity that,
as it earned interest over the years of its distribution, would yield the plaintiff more than $1
million. Had the defendant paid the plaintiff a lump sum of $1 million, then the plaintiff could
have purchased that same annuity.49
If Congress addresses periodic payment of future damages, it may consider utilizing the Uniform
Periodic Payment of Judgments Act for guidance. For example, the uniform act includes sections
that would account for inflation and for the effect of the plaintiff’s death on unpaid amounts.
Section 5(a) of the uniform act provides that, in a trial, “evidence of future changes in the
purchasing power of the dollar is admissible on the issue of future damages.” Section 13 provides
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.
Section 8 of the bill would permit any party to request to the court that future damages be paid by
period payment, if an award of future damages is made that equals or exceeds $50,000, without a

44 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.
45 Id. at 6.
46 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 ALR 4th 95, 96.
47 Paul J. Lesti, Structured Settlements § 21.5 (2d ed., 1993).
48 Victor E. Schwartz, Doctors’ Delight, Attorneys’ Dilemma, Legal Times, Health-Care Law Supplement (Feb. 28,
1994) at 30.
49 Id.
Congressional Research Service
10

---

.
Medical Malpractice Liability Reform: Fifty-State Surveys

reduction to a present value. This would be permitted so long as the party against whom the
judgment was made has sufficient insurance or other assets to fund a periodic payment of such
judgment. H.R. 5 provides that “the court may be guided by the Uniform Periodic Payment of
Judgments Act promulgated by the National Conference of Commissioners on Uniform State
Laws.”50
Arguments For the Periodic Payment of Damages
Advocates argue that generally, both parties are benefitted by a period payment scheme because
the defendant need not immediately pay out a large sum of money, and the plaintiff is prevented
from dissipating a recovery and is provided a secure, tax-free income for a long period, without
having to assume the costs and risks of managing an investment portfolio.51 Periodic payments
are not very different than the structured settlements that lawyers utilize in other transactions.
“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
Arguments Against the Periodic Payment of Damages
Some argue that if periodic payments will in fact benefit plaintiffs, then they will agree to them,
as they sometimes do, without the need for legislation. Some plaintiffs 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.
Creating a Federal Statute of Limitations
The statute of limitations—the period within which a lawsuit must be filed—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.
Section 3 of H.R. 5 would require a health care lawsuit to be brought within either three years
after the date of manifestation of the injury, or within one year after the claimant discovers, or
through the use of reasonable diligence should have discovered, the injury, whichever occurs first.
No lawsuit could be brought after three years of the date of manifestation of the injury, but such a
limitation could be extended upon a showing of (1) proof of fraud; (2) intentional concealment; or

50 This uniform act was promulgated in 1990; it was preceded by the 1980 Model Periodic Payment of Judgments Act.
Both appear in volume 14 of the UNIFORM LAWS ANNOTATED.
51 Annotation, supra note 46, 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.
Congressional Research Service
11

---

.
Medical Malpractice Liability Reform: Fifty-State Surveys

(3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the
person of the injured party. For minors, the action must be commenced within three years from
the date of the manifestation of injury, except that actions by a minor under the full age of six
must be commenced within three years of the manifestation of the injury or prior to the minor’s
eighth birthday, whichever provides a longer period. In the event of fraud, the statute of
limitations for a minor could be tolled.53

53 To toll the statute of limitations means to stop its running.
Congressional Research Service
12

---

.
Medical Malpractice Liability Reform: Fifty-State Surveys

Appendix. Fifty-State Surveys
Table A-1 summarizes state laws that impose caps on punitive damages and noneconomic
damages in medical malpractice cases. If a box states “no statute found,” this 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 some, but
not necessarily all, state constitutional provisions that prohibit caps.
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. As mentioned
earlier, punitive damages are awarded not to compensate plaintiffs but to punish and deter
particularly egregious conduct on the part of defendants. Though noneconomic by nature,
punitive damages are usually treated separately from 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. We have attempted to note where a state’s highest court has
declared the cap to violate the state’s constitution.
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.
Congressional Research Service
13

---

.
Medical Malpractice Liability Reform: Fifty-State Surveys

Table A-1. State Caps on Noneconomic and Punitive Damages
in Medical Malpractice Lawsuits
State
Noneconomic Damages
Punitive Damages
Alabama
Ala. Code § 6-5-544 (2011)
Ala. Code § 6-11-21 (2011)
Imposes a $400,000 cap on noneconomic
The greater of three times compensatory
losses, including punitive damages.
damages or $500,000 ($1.5 million if physical
injury), with exceptions.
Held unconstitutional. Moore v. Mobile
Infirmary Ass’n, 592 So. 2d 156 (Ala. 1991).
Ala. Code § 6-5-547 (2011)
$1,000,000 total cap in wrongful death actions
against a health care provider.
This provision was held to violate state
constitution. Smith v. Schulte, 671 So. 2d 1334
(Ala. 1995), cert. denied, 517 U.S. 1220 (1996).
Alaska
Alaska Stat. § 09.17.010 (2011)
Alaska Stat. § 09.17.020 (2011)
Imposes a $400,000 cap or the injured
The greater of three times compensatory
person’s life expectancy in years multiplied by
damages or $500,000, except if defendant was
$8,000, whichever is greater, but $1,000,000
motivated by financial gain and actually knew
or the person’s life expectancy in years
the adverse consequences, then the greatest of
multiplied by $25,000, whichever is greater,
four times compensatory damages, four times
when the damages are awarded for severe
financial gain, or $7,000,000.
permanent physical impairment or severe
disfigurement.
Arizona
Ariz. Const. Art. II, § 31 (2011)
Ariz. Const. Art. II, § 31 (2011)
No law shall be enacted in this State limiting
No law shall be enacted in this State limiting the
the amount of damages to be recovered for
amount of damages to be recovered for causing
causing the death or injury of any person.
the death or injury of any person.
Arkansas
Ark. Const. Art. 5, § 32 (2010)
Ark. Code Ann. § 16-55-208 (2010)
No law shall be enacted limiting the amount to
The greater of $250,000 or three times
be recovered for injuries resulting in death or
compensatory damages, not to exceed
for injuries to persons or property.
$1,000,000, to be adjusted as of January 1, 2006
and at three-year intervals thereafter, in
accordance with the Consumer Price Index. No
cap if defendant intentionally caused injury or
damage.
California
Cal. Civ. Code § 3333.2 (2010)
No statute found.
$250,000.
Colorado
Colo. Rev. Stat. §§ 13-21-102.5, 13-64-
Colo. Rev. Stat. § 13-21-102 (2010)
302 (2010)
The amount of actual damages awarded, but
$250,000 noneconomic cap, but $500,000 cap
three times that amount if the defendant
if court finds justification for more than
continues to act in a willful and wanton manner
$250,000. Both caps adjusted for inflation.
during the pendency of the case.
$1,000,000 total cap in suits against health care
providers.
Congressional Research Service
14

---

.
Medical Malpractice Liability Reform: Fifty-State Surveys

State
Noneconomic Damages
Punitive Damages
Connecticut
Conn. Gen. Stat. § 52-228c (2010)
No statute found.
Whenever, the jury renders a verdict

specifying noneconomic damages in an amount
exceeding one million dollars, the court shall
review the evidence presented to the jury to
determine if the amount is excessive as a
matter of law.
Delaware
No statute found.
No statute found.
District of
No statute found.
No statute found.
Columbia
Florida
Fla. Stat. Ann. § 766.118(2) (2010)
Fla. Stat. Ann. § 768.73(1) (2010)
$500,000, except $1 million cap on all
The greater of three times compensatory
practitioners in the aggregate if permanent
damages or $500,000, except, if wrongful
vegetative state or death, or if, because of
conduct was motivated solely by unreasonable
special circumstances, noneconomic harm is
financial gain, and unreasonably dangerous
particularly severe and injury was catastrophic.
nature of the conduct and high likelihood of
For non-practitioners, above caps are
injury were known, then the greater of four
$750,000 and $1.5 million, respectively. For
times compensatory damages or $2 million. No
emergency services, caps are $150,000 for
cap where specific intent to harm plaintiff.
practitioners, $750,000 for non-practitioners,
with maximum damages recoverable by all
Fla. Stat. Ann. § 766.207(7)(d) (2010)
claimants $300,000 and $1.5 million,
Punitive damages prohibited in voluntary
respectively.
binding arbitration.
Georgia
Ga. Code Ann. § 51-13-1 (2011)
Ga. Code Ann. § 51-12-5.1 (2011)
Health care providers or medical facility:
$250,000.
$350,000. Medical facilities: $750,000. The
aggregate amount of noneconomic damages
If it is found that the defendant acted, or failed
recoverable under such subsections shal in no
to act, with the specific intent to cause harm,
event exceed $1,050,000.00.
or that the defendant acted or failed to act
while under the influence of alcohol, drugs
This provision held unconstitutional. Atlanta
other than lawfully prescribed drugs
Oculoplastic Surgery, P.C. v. Nestlehutt, 691
administered in accordance with prescription,
S.E.2d 218 (Ga. 2010).
or any intentionally consumed glue, aerosol, or
other toxic vapor to that degree that his or her
judgment is substantially impaired, there shall
be no limitation regarding the amount which
may be awarded.
Hawaii
Haw. Rev. Stat. Ann. § 663-8.7 (2010)
No statute found.
$375,000 (cap does not apply to intentional
torts).
Idaho
Idaho Code Ann. § 6-1603 (2010)
Idaho Code Ann. § 6-1604 (2010)
For actions accruing after July 1, 2003,
For actions accruing after July 1, 2003, the
$250,000 subject to increase or decrease in
greater of $250,000 or three times
accordance with the average annual wage.
compensatory damages.
Congressional Research Service
15

---

.
Medical Malpractice Liability Reform: Fifty-State Surveys

State
Noneconomic Damages
Punitive Damages
Illinois
735 Ill. Comp. Stat. Ann. 5/2-1706.5
735 Ill. Comp. Stat. Ann. 5/2-1115 (2011)
(2011)
Punitive damages are not recoverable in healing
Hospital and its personnel or hospital affiliates:
art and legal malpractice cases.
$1 million.
Physician and the physician’s business or
corporate entity and personnel or health care
professional: $500,000.
This provision held unconstitutional. Lebron v.
Gottlieb Mem. Hosp., 930 N.E.2d 895 (Ill.
2010).
Indiana
Ind. Code Ann. § 34-18-14-3 (2011)
Ind. Code Ann. § 34-51-3-4 (2011)
$1,250,000., total cap.
Greater of three times compensatory damages
or $50,000.
Qualified health care provider: $250,000 total
cap.
Iowa
No statute found.
No statute found.
Kansas
Kan. Stat. Ann. § 60-19a02(b) (2009)
Kan. Stat. Ann. § 60-3702(e), (f) (2009)
$250,000 by each party from al defendants.
The lesser of the defendant’s annual gross
income or $5,000,000, but if the profitability of
the misconduct exceeds such amount, the cap
is 1.5 times the profit.
Kentucky
Ky. Const. § 54 (2010)
Ky. Const. § 54 (2010)
The General Assembly shall have no power to
The General Assembly shall have no power to
limit the amount to be recovered for injuries
limit the amount to be recovered for injuries
resulting in death, or for injuries to person or
resulting in death, or for injuries to person or
property.
property.
Louisiana
La. Rev. Stat. Ann. § 40:1299.42 (2011)
Punitive damages prohibited at common law.
$500,000 total cap, exclusive of future medical
care and related benefits.
Qualified health care provider: $100,000 total
cap per patient.
Maine
Me. Rev. Stat. tit. 18-A, § 2-804(b) (2011) Me. Rev. Stat. tit. 18-A, § 2-804(b) (2011)
Wrongful death actions: $500,000 for the loss
Wrongful death actions: $250,000.
of comfort, society and companionship of the
deceased, including any damages for emotional
distress arising from the same facts.
Congressional Research Service
16

---

.
Medical Malpractice Liability Reform: Fifty-State Surveys

State
Noneconomic Damages
Punitive Damages
Maryland
Md. Code Ann., Cts. & Jud. Proc. § 3-2A-
No statute found
09 (2011)
1) (i) Except as provided in paragraph (2)(i ), a
cause of action arising between January 1,
2005, and December 31, 2008, inclusive, may
not exceed $650,000.
(ii) The limitation increase by $15,000 on
January 1 of each year beginning January 1,
2009. The increased amount shal apply to
causes of action arising between January 1 and
December 31 of that year, inclusive.

(2) (i) Except as provided in subparagraph (i )
of this paragraph, the limitation under
paragraph (1) shall apply in the aggregate to all
claims for personal injury and wrongful death
arising from the same medical injury,
regardless of the number of claims, claimants,
plaintiffs, beneficiaries, or defendants.
(i ) If there is a wrongful death action in
which there are two or more claimants or
beneficiaries, whether or not there is a
personal injury action arising from the same
medical injury, the total amount awarded for
noneconomic damages for al actions may not
exceed 125% of the limitation established
under paragraph (1) of this subsection,
regardless of the number of claims, claimants,
plaintiffs, beneficiaries, or defendants.
Md. Code Ann., Cts. & Jud. Proc. § 11-
108 (2011)
$500,000 if cause of action arises on or after
October 1, 1994, increased by $15,000 on
October 1 of each succeeding year for causes
of action that arise on or after the date of the
increase.
Massachusetts Mass. Ann. Laws, ch. 231, § 60H (2010)
Mass. Ann. Laws, ch. 229, § 2 (2010)
$500,000, unless death resulted or “special
In wrongful death cases, not less than $5,000
circumstances” are found.
where decedent’s death was caused by the
malicious, willful, wanton or reckless conduct of
Mass. Ann. Laws, ch. 231, § 85K (2010)
the defendant or by the gross negligence of the
Charitable institution: $20,000 total cap.
defendant.
Punitive damages otherwise prohibited at
common law.
Congressional Research Service
17

---

.
Medical Malpractice Liability Reform: Fifty-State Surveys

State
Noneconomic Damages
Punitive Damages
Michigan
Mich. Comp. Laws. Serv. § 600.1483
No statute found.
(2011)
$280,000, recoverable by al plaintiffs, resulting
from the negligence of all defendants, but
$500,000 if a serious injury enumerated in the
statute occurred.
Minnesota
No statute found.
No statute found.
Mississippi
Miss. Code Ann. § 11-1-60 (2010)
Miss. Code Ann. § 11-1-65 (2010)
$500,000 cap for injury based on malpractice
$20 million if defendant’s net worth exceeds $1
or breach of standard of care against a
billion; $15 million if it exceeds $750 million but
provider of health care, including institutions
is not more than $1 billion; $10 million if it
for aged or infirm.
exceeds $500 million but is not more than
$750 million; $7½ million if it 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 defendant’s net worth
if defendant’s net worth is $50 million or less.
Missouri
Mo. Rev. Stat. § 538.210 (2011)
No statute found.
Not to exceed $350,000 irrespective of the
number of defendants.
Montana
Mont. Code Ann. § 25-9-411 (2010)
Mont. Code Ann. § 27-1-220 (2010)
$250,000 cap on noneconomic damages for
$10 million or 3% of a defendant’s net worth,
actions based on the same act or series of acts
whichever is less.
that allegedly caused the injury, injuries, death
or deaths; or regardless the number of

defendant health care providers.
Nebraska
Neb. Rev. Stat. Ann. § 44-2825 (2010)
Punitive damages prohibited at common law.
Healthcare provider and the Excess Liability
Fund: $1,750,000, total cap.
Healthcare provider: $500,000.
Nevada
Nev. Rev. Stat. Ann. § 41A.035 (2010)
Nev. Rev. Stat. Ann. § 42.005 (2010)
Not to exceed $350,000.
Three times compensatory damages if
compensatory damages are $100,000 or more;
$300,000 if the compensatory damages are less
than $100,000.
New
N.H. Rev. Stat Ann. § 507-C:7 (2010)
N.H. Rev. Stat Ann. § 507:16 (2010)
Hampshire
Not to exceed $250,000.
No punitive damages shal be awarded in any
action, unless otherwise provided by statute.
This provision held unconstitutional. Carson v.
Maurer, 424 A.2d 825 (N.H. 1980).
No statute provides for punitive damages in
medical malpractice actions.
New Jersey
No statute found.
N.J. Rev. Stat. 2A:15-5.14 (2011)
Greater of five times compensatory damages or
$350,000.

Congressional Research Service
18

---

.
Medical Malpractice Liability Reform: Fifty-State Surveys

State
Noneconomic Damages
Punitive Damages
New Mexico
N.M. Stat. Ann. § 41-5-6 (2010)
N.M. Stat. Ann. § 41-5-6 (2010)
$600,000 total cap. Monetary damages shal
Punitive damages and medical care and related
not be awarded for future medical expenses in
benefits are not subject to the $600,000 cap.
malpractice claims.
New York
No statute found.
No statute found
North
No statute found.
N.C. Gen. Stat. § 1D-25 (2010)
Carolina
Greater of three times the amount of
compensatory damages or $250,000.
North Dakota N.D. Cent. Code § 32-42-02 (2011)
N.D. Cent. Code § 32-03.2-11(4) (2011)
Not to exceed $500,000 cap on noneconomic
Greater of two times compensatory damages
damages regardless the number of health care
or $250,000.
providers.
Ohio
Ohio Rev. Code Ann. § 2323.43 (2011)
Ohio Rev. Code Ann. § 2315.21 (2011)
The greater of $250,000 or three times
Punitive or exemplary damages in excess of two
plaintiff’s economic loss, to a maximum of
times the amount of the compensatory
$350,000 for each plaintiff or a maximum of
damages;
$500,000 for each occurrence. But, if specified
serious injuries occur, cap is $500,000 for each Small employer or individual: lesser of two
plaintiff or $1 million for each occurrence.
times the amount of the compensatory
damages or 10% of the employer's or
individual's net worth, up to $350,000.
Except where the alleged injury, death, or loss
to person or property resulted from the
defendant acting with one or more of the
culpable mental states described in statute.
Oklahoma
Okla. Stat. tit., 23, § 61.2 (2010)
Okla. Stat. tit., 23, § 9.1 (2010)
$400,000.00, regardless of the number of
Where reckless disregard, greater of $100,000
parties against whom the action is brought or
or actual damages awarded. Where intentional
the number of actions brought.
and with malice, greatest of $500,000, twice
actual damages awarded, or financial benefit
No limit on noneconomic damages arising
derived by defendant. If court finds beyond a
from a claimed bodily injury resulting from
reasonable doubt that defendant engaged in
professional negligence against a physician if
conduct life-threatening to humans, then no
the judge and jury finds, by clear and
cap.
convincing evidence, that:
1. The plaintiff or injured person has suffered
permanent and substantial physical abnormality
or disfigurement, loss of use of a limb, or loss
of, or substantial impairment to, a major body
organ or system; or
2. The plaintiff or injured person has
suffered permanent physical functional injury
which prevents them from being able to
independently care for themselves and
perform life sustaining activities; or
3. The defendant's acts or failures to act
were: a. in reckless disregard for the rights of
others,
b. grossly negligent, c. fraudulent, or d.
intentional or with malice.
Congressional Research Service
19

---

.
Medical Malpractice Liability Reform: Fifty-State Surveys

State
Noneconomic Damages
Punitive Damages
Oregon
Or. Rev. Stat. § 31.710 (2009)
Or. Rev. Stat. § 31.740 (2009)
Not to exceed $500,000.
Prohibited against specified health practitioners.
This provision held unconstitutional where
damages are recoverable under common law.
Lakin v. Senko Products, Inc., 987 P.2d 463
(Ore. 1999).
Pennsylvania
Pa. Const. Art. 3, § 18 (2010)
40 Pa. Cons. Stat. § 1303.505(d) (2010)
The General Assembly may enact laws
Except in cases alleging intentional misconduct,
requiring the payment by employers, or
punitive damages against an individual physician
employers and employees jointly, of
shall not exceed 200% of the compensatory
reasonable compensation for injuries to
damages awarded. Punitive damages, when
employees arising in the course of their
awarded, shal not less than $100,000 unless a
employment, and for occupational diseases of
lower verdict amount is returned by the trier
employees, whether or not such injuries or
of fact.
diseases result in death, and regardless of fault
of employer or employee, and fixing the basis
of ascertainment of such compensation and the
maximum and minimum limits thereof, and
providing special or general remedies for the
collection thereof; but in no other cases shall
the General Assembly limit the amount to be
recovered for injuries resulting in death, or for
injuries to persons or property, and in case of
death from such injuries, the right of action
shall survive, and the General Assembly shall
prescribe for whose benefit such actions shall
be prosecuted.
40 Pa. Cons. Stat. § 1303.712(c)(2)(i)
(2010)
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
No statute found.
No statute found.
Congressional Research Service
20

---

.
Medical Malpractice Liability Reform: Fifty-State Surveys

State
Noneconomic Damages
Punitive Damages
South
S.C. Code Ann. § 15-32-220 (2010)
S.C. Code Ann. § 15-32-220 (2010)
Carolina
A single health care provider or a single health
This section does not limit the amount of
care institution: $350,000 for each claimant,
punitive damages in cases where the plaintiff is
regardless of the number of separate causes of
able to prove an entitlement to an award of
action.
punitive damages as required by law.

One health care institution, or more than one
health care provider, or any combination
thereof, the limit of civil liability for
noneconomic damages for each health care
institution and each health care provider is
limited to an amount not to exceed $350,000
for each claimant, and the limit of civil liability
for noneconomic damages for al health care
institutions and health care providers is limited
to an amount not to exceed $1,050,000 for
each claimant.
(E) The limitations for noneconomic damages
rendered against any health care provider or
health care institution do not apply if the jury
or court determines that the defendant was
grossly negligent, willful, wanton, or reckless,
and such conduct was the proximate cause of
the claimant's noneconomic damages, or if the
defendant has engaged in fraud or
misrepresentation related to the claim, or if
the defendant altered or destroyed medical
records with the purpose of avoiding a claim
or liability to the claimant.
South Dakota
S.D. Codified Laws § 21-3-11 (2010)
No statute found.
The total general damages which may be
awarded may not exceed the sum of five
hundred thousand dol ars. There is no
limitation on the amount of special damages
which may be awarded.
Tennessee
No statute found.
No statute found.
Congressional Research Service
21

---

.
Medical Malpractice Liability Reform: Fifty-State Surveys

State
Noneconomic Damages
Punitive Damages
Texas
Tex. Civ. Prac. & Rem. §§ 74.301, 302
Tex. Civ. Prac. & Rem. § 41.008 (2010)
(2010)
Greater of (1) two times the amount of
$250,000 per claimant against a physician or
economic damages plus the amount of
health care provider and $250,000 per
noneconomic damages up to $750,000; or (2)
claimant against a health care institution. If
$200,000.
more than one health care institution is liable,
cap against them all is $500,000 per claimant.
Tex. Civ. Prac. & Rem. § 74.303 (2010)
Tex. Civ. Prac. & Rem. § 74.303 (2010)
In a wrongful death or survival action on a
health care liability claim where final judgment
In a wrongful death or survival action on a
is rendered against a physician or health care
health care liability claim where final judgment
provider, the limit of civil liability for all
is rendered against a physician or health care
damages, including exemplary damages, shall be
provider, the limit of civil liability for all
limited to an amount not to exceed $500,000
damages, including exemplary damages, shall be for each claimant, regardless of the number of
limited to an amount not to exceed $500,000
defendant physicians or health care providers
for each claimant, regardless of the number of
against whom the claim is asserted or the
defendant physicians or health care providers
number of separate causes of action on which
against whom the claim is asserted or the
the claim is based, subject to increase or
number of separate causes of action on which
decrease in accordance with consumer price
the claim is based, subject to increase or
index.
decrease in accordance with consumer price
index.
Utah
Utah Code Ann. § 78B-3-410 (2011)
Utah Code Ann. § 78B-3-410 (2011)
(1)(a) for a cause of action arising before July 1, The limitations provided in this section do not
2001, $250,000;
apply to punitive damages.
(b) for a cause of action arising on or after July
1, 2001 and before July 1, 2002, the limitation
is adjusted for inflation to $400,000;
(c) for a cause of action arising on or after July
1, 2002, and before May 15, 2010 the $400,000
limitation described in Subsection (1)(b) shall
be adjusted for inflation as provided in
Subsection (2); and
(d) for a cause of action arising on or after May
15, 2010, $450,000.
(2) (a) Beginning July 1, 2002 and each July 1
thereafter until July 1, 2009, the limit for
damages under Subsection (1)(c) shall be
adjusted for inflation by the state treasurer.
Vermont
No statute found.
No statute found.
Virginia
Va. Code Ann. § 8.01-581.15 (2010)
Va. Code Ann. § 8.01-38.1 (2010)
$1.5 million total cap, to increase by $50,000
Not to exceed $350,000 cap.
every July 1 from 2000 through 2006, and by
$75,000 on July 1, 2007 and 2008. The July 1,
2008, increase shal be the final annual
increase.
Congressional Research Service
22

---

.
Medical Malpractice Liability Reform: Fifty-State Surveys

State
Noneconomic Damages
Punitive Damages
Washington
Wash. Rev. Code Ann. § 4.56.250 (2011)
Punitive damages prohibited at common law.
Amount determined by multiplying 0.43 by the
average annual wage and by the life expectancy
of the person incurring noneconomic damages,
as the life expectancy is determined by the life
expectancy tables adopted by the insurance
commissioner.
This provision held unconstitutional. Sofie v.
Fibreboard Corp., 771 P.2d 711 (Wash. 1989).
West Virginia
W. Va. Code Ann. § 55-7B-8 (2011)
No statute found.
$250,000 per occurrence, regardless of the
number of plaintiffs or defendants, except cap
is $500,000 if (1) Wrongful death; (2)
permanent and substantial physical deformity,
loss of use of a limb or loss of a bodily organ
system; or (3) permanent physical or mental
functional injury that permanently prevents the
injured person from being able to
independently care for himself or herself and
perform life sustaining activities. Annual
increases based on Consumer Price Index.
Caps apply only if defendant has insurance of
at least $1 million per occurrence.
Wisconsin
Wis. Stat. §§ 655.017, 893.55(4)(d)(1)
Wis. Stat. § 895.043(6) (2011)- 2011 Wis.
(2010)
Act 2, enacted on 1/27/2011
$750,000 for each occurrence under on or
Not to exceed twice the amount of any
after April 6, 2006.
compensatory damages recovered by the
plaintiff or $ 200,000, whichever is greater.
A $350,000 cap was held unconstitutional in
Ferdon ex rel. Petrucelli v. Wisconsin Patients
Compensation Fund, 701 N.W.2d 440 (2005).
Wyoming
Wyo. Const. Art. 10, § 4 (2011)
Wyo. Const. Art. 10, § 4 (2011)
No law shall be enacted limiting the amount of
No law shall be enacted limiting the amount of
damages to be recovered for causing the injury damages to be recovered for causing the injury
or death of any person.
or death of any person.
Source: LexisNexis.
Congressional Research Service
23

---

.
Medical Malpractice Liability Reform: Fifty-State Surveys

Table A-2 sets forth the burden of proof and standards for awards of punitive damages in medical
malpractice suits in the 50 states, as well as whether the state requires or permits a separate
hearing to determine punitive damages. The burden of proof refers to the plaintiff’s duty to
present evidence to prove his case. Although the lowest burden, which usually applies in civil
cases, is “preponderance of the evidence,” many states impose a higher burden of proof to
recover punitive damages—proof by “clear and convincing evidence.” One state—Colorado—
however, requires proof “beyond a reasonable doubt,” which is the highest standard—usually the
burden that the government must meet in criminal prosecutions.
Standards for awards of punitive damages refer to what the plaintiff must prove to receive an
award of punitive damages. To recover compensatory damages in a medical malpractice case, the
plaintiff typically must prove negligence. To recover punitive damages, the plaintiff must prove
that the defendant’s conduct was more egregious than negligence, and usually more egregious
than gross negligence.
Separate proceedings for punitive damages refer to whether the computation and award of
punitive damages occurs during the initial trial or in a subsequent trial. Such punitive damages
proceedings usually include the same jury as in the original trial, but additional discovery can
occur and additional evidence can be presented (such as evidence related to the financial
condition of the defendant). This report sets forth the specific availability of this bifurcated trial
process, noting whether the process is available on the motion of one of the parties, or is
mandatory in all proceedings resulting in the award of punitive damages. Where “N/A” is entered
does not mean that bifurcation of a punitive damages claim is prohibited or non-existent. Rather,
it means that the state: (1) may not have a specific statute that addresses bifurcation with respect
to punitive damages, or (2) that the its civil procedure rules grants the courts the discretion to
have a separate trial on any claim if it would be conducive to expedition or economy. For
example, Rule 42 of West Virginia Civil Procedure states that the court may have separate trials
on any claim if it would be conducive or expeditious to do so.
Most of the provisions listed in the chart apply to punitive damages not only in medical
malpractice cases, but in other tort cases as well. Where “punitive damages prohibited” appears,
the prohibition may be limited to medical malpractice cases, or it may apply to other tort cases as
well.
Congressional Research Service
24

---

.
Medical Malpractice Liability Reform: Fifty-State Surveys

Table A-2. Punitive Damages—Burden of Proof, Standard, and Separate Proceeding
State and
Citation
Burden of Proof
Standard
Separate Proceeding
Alabama
Ala. Code § 6-11-20
Ala. Code § 6-11-20 (2011) Ala. Code § 6-11-23

(2011)
(2011) Available.
“[T]he defendant consciously
Clear and convincing
or deliberately engaged in
evidence.
oppression, fraud, wantonness,
or malice.”
Alaska
Alaska Stat. § 09.17.020
Alaska Stat. § 09.17.020
Alaska Stat. § 09.17.020

(2011)
(2011) “[D]efendant’s
(2011) Mandatory.
conduct (1) was outrageous,
Clear and convincing
including acts done with
evidence.
malice or bad motives; or (2)
evidenced reckless
indifference to the interest of
another person.”
Arizona
Clear and convincing
Defendant engaged in
N/A.

evidence.
“reprehensible conduct” and
acted “with an evil mind.”
Linthicum v. Nationwide Life Ins. Linthicum v. Nationwide Life Ins.
Co., 723 P.2d 675, 681 (1986). Co., 723 P.2d 675, 680 (1986).

Arkansas
Ark. Code Ann. § 16-55-
Ark. Code Ann. § 16-55-
Ark. Code Ann. § 16-55-

207 (2010)
206 (2010) “[D]efendant
211 (2010)
knew or ought to have known
Clear and convincing
... that his or her conduct
Available.
evidence.
would naturally and probably
result in injury or damage and
that he or she continued the
conduct with malice or in
reckless disregard of the
consequences ...” or
“defendant intentional y
pursued a course of conduct
for the purpose of causing
injury or damages.”
California
Cal. Civ. Code § 3294
Cal. Civ. Code § 3294
N/A.

(2010)
(2010)

Clear and convincing
“[O]ppression, fraud, or
evidence.
malice.”
Colorado
Colo. Rev. Stat. §13-25-
Colo. Rev. Stat. § 13-21-
N/A.
127(2) (2010)
102 (2010)
Beyond a reasonable doubt.
“[F]raud, malice, or willful and
wanton conduct.”
Connecticut
Preponderance of the
“{A] reckless indifference to
N/A.

evidence.
the rights of others or an
intentional and wanton
Freeman v. Alamo Management violation of those rights.”
Co., 607 A.2d 370, 373 (Conn.
1992).
Sorrentino v. All Seasons Servs.,
717 A.2d 150, 161 (Conn.
1998).
Congressional Research Service
25

---

.
Medical Malpractice Liability Reform: Fifty-State Surveys

State and
Citation
Burden of Proof
Standard
Separate Proceeding
Delaware
Undefined, but likely
Del. Code Ann. tit. 18, §
N/A.

preponderance of the
6855 (2010)
evidence.
“[I]njury complained of was
maliciously intended or was
the result of wilful or wanton
misconduct by the health care
provider.”
District of
Clear and convincing
“[E]gregious conduct.”
N/A.
Columbia
evidence.

Railan v. Katyal, 766 A.2d 998,
Croley v. Republican Nat’l
1012 (D.C. 2001).
Comm., 759 A.2d 682, 695
(D.C. 2000).
“[M]alice or its equivalent.”
Croley v. Republican Nat’l
Comm., 759 A.2d 682, 695
(D.C. 2000).
Florida
Fla. Stat. Ann. § 768.72(2) Fla. Stat. Ann. §
N/A.

(2010)
768.72(2)(2010)
Clear and convincing
“[I]ntentional misconduct or
evidence.
gross negligence.”
Georgia
Ga. Code Ann. § 51-12-
Ga. Code Ann. § 51-12-
Ga. Code Ann. § 51-12-

5.1(b) (2011)
5.1(b) (2011)
5.1(d)(2) (2011)
Clear and convincing
“[W]illful misconduct, malice,
Mandatory.
evidence.
fraud, wantonness, oppression,
or that entire want of care
which would raise the
presumption of conscious
indifference to consequences.”
Hawaii
Clear and convincing
“[D]efendant has acted
N/A.

evidence.
wantonly or oppressively or
with such malice as implies a
Amfac, Inc. v. Waikiki
spirit of mischief or criminal
Beachcomber Inv. Co., 839
indifference to civil obligations,
P.2d 10, 37 (1992)
or where there has been

some wilful misconduct or
that entire want of care which
would raise the presumption
of conscious indifference to
the consequences.”
Amfac, Inc. v. Waikiki
Beachcomber Inv. Co., 839 P.2d
10, 37 (1992)
Idaho
Idaho Code Ann. § 6-1604 Idaho Code Ann. § 6-
N/A.

(2010)
1604(2010)
Clear and convincing
“[O]ppressive, fraudulent,
evidence.
malicious or outrageous
conduct.”
Congressional Research Service
26

---

.
Medical Malpractice Liability Reform: Fifty-State Surveys

State and
Citation
Burden of Proof
Standard
Separate Proceeding
Illinois
735 Ill. Comp. Stat. Ann.



5/2-1115 (2005)
Punitive damages prohibited
in medical malpractice cases.
Indiana
Ind. Code Ann. § 34-51-3-
“[A]ct[ing] with malice, fraud,
N/A.

2 (2011)
gross negligence, or
oppressiveness which was not
Clear and convincing
the result of a mistake of fact
evidence.
or law, honest error or
judgment, overzealousness,
mere negligence, or other
human failing.”
USA Life One Ins. Co. of Indiana
v. Nuckolls, 682 N.E.2d 534,
541 (Ind. 1997).
Iowa
Iowa Code Ann. § 668A.1
Iowa Code Ann. § 668A.1
N/A.

(2010)
(2010)
“[P]reponderance of clear,
“[W]illful and wanton
convincing, and satisfactory
disregard for the rights or
evidence.”
safety of another.”
Kansas
Kan. Stat. Ann. § 60-3701
Kan. Stat. Ann. § 60-3701
Kan. Stat. Ann. § 60-

(2009)
(2009)
3701 (2009)
Clear and convincing
“[W]illful conduct, wanton
Mandatory.
evidence.
conduct, fraud or malice.”
Kentucky
Ky. Rev. Stat. Ann. §
Ky. Rev. Stat. Ann. §
N/A.

411.184 (2010)
411.184 (2010),
Clear and convincing
“[O]ppression, fraud or
evidence.
malice.”
Louisiana
Punitive damages unavailable



in medical malpractice claims.
See Naquin v. Fluor Daniel
Services Corp., 935 F. Supp.
847, 849) (E.D. La. 1996)
(noting that punitive damages
are only available under
Louisiana law if specifically
permitted by a statute).
Congressional Research Service
27

---

.
Medical Malpractice Liability Reform: Fifty-State Surveys

State and
Citation
Burden of Proof
Standard
Separate Proceeding
Maine
Clear and convincing
Malice, either express (where
N/A

evidence.
the defendant “is motivated by
ill will toward the plaintiff”), or
St. Francis de Sales Federal
implied (defendant’s conduct
Credit Union v. Sun Insurance
“is so outrageous that malice
Company of New York, 818
toward a person injured as a
A.2d 995, 1001 (Me. 2002,
result of that conduct can be
revised 2003).
implied.”) Implied malice is not
established “by the defendant’s
mere reckless disregard of the
circumstances.”
St. Francis de Sales Federal
Credit Union v. Sun Insurance
Company of New York, 818
A.2d 995, 1001 (Me. 2002,
revised 2003).
Maryland
Clear and convincing
“[E]vil motive, intent to injure, N/A.

evidence.
ill will, or fraud.”
Owens-Illinois, Inc. v. Zenobia,
Owens-Illinois, Inc. v. Zenobia,
601 A.2d 633, 657 (Md.
601 A.2d 633, 652 (Md. 1992).
1992).
Massachusetts
Mass. Ann. Laws, ch. 229
Mass. Ann. Laws, ch. 229 § N/A.

§ 2 (2010)
2 (2010)
Preponderance of the
In wrongful death cases,
evidence in wrongful death
“malicious, willful, wanton or
cases.
reckless conduct ... or gross
negligence.”
But, punitive damages for
medical malpractice
But, punitive damages for
otherwise prohibited.
medical malpractice otherwise
prohibited.

Michigan
Undefined, but likely
Conduct that “inspires feelings N/A.

preponderance of the
of humiliation, outrage and
evidence.
indignity” and is “malicious or
so willful and wanton as to
demonstrate a reckless
disregard of plaintiff's rights.”
Veselenak v. Smith, 327
N.W.2d 261, 264 (1982).
Minnesota
Minn. Stat. Ann. § 549.20
Minn. Stat. Ann. § 549.20
Minn. Stat. Ann. §

(2010)
(2010)
549.20 (2010)
Clear and convincing
“[D]eliberate disregard for the Mandatory.
evidence.
rights or safety of others.”
Congressional Research Service
28

---

.
Medical Malpractice Liability Reform: Fifty-State Surveys

State and
Citation
Burden of Proof
Standard
Separate Proceeding
Mississippi
Miss. Code Ann. § 11-1-
Miss. Code Ann. § 11-1-
Miss. Code Ann. § 11-1-

65(1)(a)(2010)
65(1)(a)(2010)
65(1)(e)(2010)
Clear and convincing
“[A]ctual malice, gross
Mandatory.
evidence.
negligence which evidences a
willful, wanton or reckless
disregard for the safety of
others, or committed actual
fraud.”
Missouri
Clear and convincing
Mo. Rev. Stat. § 538.210.5
Mo. Rev. Stat. § 510.263

evidence.
(2011)
(2011)
Rodriguez v. Suzuki Motor
For medical malpractice
Available.
Corp., 936 S.W.2d 104, 111
actions, “willful, wanton, or
(Mo. 1996).
malicious misconduct.” §
538.210.5 (2010).

Montana
Mont. Code Ann. § 27-1-
Mont. Code Ann. § 27-1-
Mont. Code Ann. § 27-

221 (2010)
221 (2010)
1-221 (2010)
Clear and convincing
“[A]ctual fraud or actual
Mandatory.
evidence.
malice.”
Nebraska
Punitive damages prohibited.



Mil er v. Kingsley, 230 N.W.2d
472, 474 (Neb. 1975).
Nevada
Nev. Rev. Stat. Ann. §
Nev. Rev. Stat. Ann. §
Nev. Rev. Stat. Ann. §

42.005 (2010)
42.005 (2010)
42.005 (2010)
Clear and convincing
“[O]ppression, fraud or
Mandatory.
evidence.
malice, express or implied.”
New Hampshire
N.H. Rev. Stat. Ann. §



507:16 (2010)
Punitive damages prohibited.
New Jersey
N.J. Rev. Stat. § 2A:15-
N.J. Rev. Stat. § 2A:15-5.12 N/A.

5.12 (2011)
(2011) “[A]ctuated by actual
malice or accompanied by a
Clear and convincing
wanton and willful disregard of
evidence.
persons who foreseeably
might be harmed.”
New Mexico
Preponderance of the
“[M]alicious, fraudulent,
N/A.

evidence.
oppressive, or committed
recklessly with a wanton
United Nuclear Corp. v.
disregard for the plaintiff's
Allendale Mut. Ins. Co., 709
rights.” Albuquerque Concrete
P.2d 649, 654 (N.M. 1985).
Coring Co., Inc. v. Pan Am World
Services, Inc., 879 P.2d 772, 775
(1994).
Congressional Research Service
29

---

.
Medical Malpractice Liability Reform: Fifty-State Surveys

State and
Citation
Burden of Proof
Standard
Separate Proceeding
New York
Undefined, but likely
“[I]ntentional or deliberate
Recommended.
preponderance of the
wrongdoing, aggravating or

evidence.
outrageous circumstances,
Rupert v. Sel ers, 368
fraudulent or evil motive, or
N.Y.S.2d 904, 912 (N.Y.
conscious act in willful and
App. Div. 1975)
wanton disregard of another’s
rights”
Pearlman v. Friedman, Alpern &
Green, LLP, 750 N.Y.S.2d 869
(2002).
North Carolina
N.C. Gen. Stat. § 1D-15
N.C. Gen. Stat. § 1D-15
N.C. Gen. Stat. § 1D-30

(2010)
(2010)
(2010)
Clear and convincing
“(1) Fraud. (2) Malice. (3)
Available.
evidence.
Willful or wanton conduct.”
North Dakota
N.D. Cent. Code § 32-
N.D. Cent. Code § 32-
N.D. Cent. Code § 32-

03.2-11 (2011)
03.2-11 (2011)
03.2-11 (2011)
Clear and convincing
“[O]ppression, fraud, or actual Available.
evidence.
malice.”
Ohio
Ohio Rev. Code Ann. §
Ohio Rev. Code Ann. §
Mandatory.

2315.21 (2011)
2315.21 (2011)
Ohio Rev. Code Ann. §
Clear and convincing
“[M]alice or aggravated or
2315.21 (2011), overruled
evidence.
egregious fraud.”
by Havel v. Villa St. Joseph,
No. 94677, (Ohio Ct. App.
Oct. 28, 2010).
Oklahoma
Okla. Stat. tit., 23, § 9.1.
Okla. Stat. tit., 23, § 9.1
N/A.

(2010)
(2010)
Clear and convincing
Lower cap on punitive
evidence.
damages for “reckless
disregard,” but a higher cap
for “intentionally and with
malice toward others.”
Oregon
Or. Rev. Stat. § 31.730
Or. Rev. Stat. § 31.740
N/A.

(2009)
(2009)
Clear and convincing
“Malice” for medical
evidence.
malpractice cases.
Pennsylvania
Preponderance of the
40 Pa. Const. Stat.
N/A.

evidence.
§ 1303.505 (2010)
DiSal e v. P.G. Pub. Co., 544
“[W]illful or wanton conduct
A.2d 1345, 1371 n. 24 (Pa.
or reckless indifference to the
Super. Ct. 1988) (citing Martin rights of others.”
v. Johns-Manville Corp., 494
A.2d 1088, 1098 (Pa. 1985)).

Rhode Island
Preponderance of the
“[E]vidence of such willfulness, N/A

evidence
recklessness, or wickedness, ...
as amounts to criminality.”
Palmisano v. Toth, 624 A.2d,
314 (1993).
Congressional Research Service
30

---

.
Medical Malpractice Liability Reform: Fifty-State Surveys

State and
Citation
Burden of Proof
Standard
Separate Proceeding
South Carolina
S.C. Code Ann. § 15-33-
“[W]illful, wanton, or in
N/A

135 (2010)
reckless disregard of the
plaintiff’s rights.” Mel en v.
Clear and convincing
Lane, 377 S.C. 261 (2008).
evidence.
South Dakota
S.D. Codified Laws § 21-1-
S.D. Codified Laws § 21-3-
N/A.

4.1 (2010)
2 (2010)
Before one can submit a claim Preponderance of the
for punitive damages, “the
evidence “[W]here defendant
court shall find, after a
has been guilty of oppression,
hearing based upon clear and
fraud, or malice, actual or
convincing evidence, that
presumed.”
there is reasonable basis to
believe that there has been
See also Flockhart v. Wyant, 467
willful, wanton, or malicious
N.W.2d 473 (1991) (upheld
conduct on the part of the
trial court decision to instruct
party claimed against.”
jury to decide an award of
punitive damages based on the
preponderance of the
evidence standard).

Tennessee
Clear and convincing
“[I]ntentional, fraudulent,
Available.

evidence.
malicious, or reckless
conduct.”
Hodges v. S.C. Toof & Co.,
Hodges v. S.C. Toof & Co., 833
833 S.W.2d 896 (Tenn.
S.W.2d 896 (Tenn. 1992).
Hodges v. S.C. Toof & Co., 833
1992) (“[T]he court, upon
S.W.2d 896 (Tenn. 1992)
motion of the defendant ,
shall bifurcate the trial.”).
Texas
Tex. Civ. Prac. & Rem. §
Tex. Civ. Prac. & Rem. §
Tex. Civ. Prac. & Rem.
41.003 (2010)
41.003 (2010)
§ 41.009 (2010)
Clear and convincing
“[D]amages result from: (1)
Available.
evidence.
fraud; (2) malice; or (3) wilful
act or omission or gross
neglect in wrongful death
actions.”
Utah
Utah Code Ann. § 78B-8-
Utah Code Ann. § 78B-8-
N/A.

201 (2011).
201 (2011).
Clear and convincing
“[W]illful and malicious or
evidence.
intentionally fraudulent
conduct, or conduct that
manifests a knowing and
reckless indifference toward,
and a disregard of, the rights
of others.”
Vermont
Undefined but likely
“[C]onduct manifesting
N/A.
preponderance of the
personal ill will, evidencing
evidence.
insult or oppression, or
showing a reckless or wanton
McCormick v. McCormick, 621
disregard of [a party’s] rights.”
A.2d 238 (Vt. 1993).
McCormick v. McCormick, 621
A.2d 238 (Vt. 1993).
Congressional Research Service
31

---

.
Medical Malpractice Liability Reform: Fifty-State Surveys

State and
Citation
Burden of Proof
Standard
Separate Proceeding
Virginia
Undefined but likely
“[D]efendant’s conduct was
N/A.

preponderance of the
willful or wanton. Willful and
evidence.
wanton negligence is action
undertaken in conscious
Woods v. Mendez, 574 S.E.2d
disregard of another’s rights
263 (2003).
or with reckless indifference
to consequences with the
defendant aware, from his
knowledge of existing
circumstances and conditions,
that his conduct probably
would cause injury to
another.”
Woods v. Mendez, 574 S.E.2d
263 (2003).
Washington
Punitive damages not al owed



unless authorized by state
legislature.
Barr v. Interbay Citizens Bank,
635 P.2d 441 (1981).
West Virginia
Undefined, but likely
“[N]ot only mean-spirited
N/A.

preponderance of the
conduct, but also extremely
evidence.
negligent conduct that is likely
to cause serious harm”
TXO Prod. Corp. v. Alliance
Resources Corp., 419 S.E.2d
TXO Prod. Corp. v. Alliance
870 (1992).
Resources Corp., 419 S.E.2d 870
(1992). See also Mayer v. Frobe,
22 S.E. 58 (1895)
(“[D]efendant has acted
wantonly or oppressively, or
with such malice as implies a
spirit of mischief or criminal
indifference to civil
obligations.”).
Wisconsin
Unclear after re-codification
Wis. Stat. § 895.043(3)
N/A.

of punitive damages statute,
(2010)
but likely clear and convincing
evidence.
“The plaintiff may receive
punitive damages if evidence is
See City of W. Allis v. Wisc.
submitted showing that the
Elec. Power Co., 635 N.W.2d
defendant acted maliciously
873 (Wisc. App. 2001)
toward the plaintiff or in an
(“Before the question of
intentional disregard of the
punitive damages can be
rights of the plaintiff.”
submitted to a jury, the
circuit court must determine
See also Groshek v. Trewin, 784
... that to a reasonable
N.W.2d 163 (2010).
certainty the conduct was
‘outrageous.’ ... The evidence
must also be ‘clear and
convincing.’”).
Congressional Research Service
32

---

.
Medical Malpractice Liability Reform: Fifty-State Surveys

State and
Citation
Burden of Proof
Standard
Separate Proceeding
Wyoming
Preponderance of the
“Outrageous conduct, malice,
N/A.

evidence.
and willful and wanton
misconduct” Alexander v.
Meduna, 47 P.3d 206 (Wyo.
2002).
Source: LexisNexis.

Author Contact Information

Vivian S. Chu

Legislative Attorney
vchu@crs.loc.gov, 7-4576


Acknowledgments
Cassandra Foley, Law Librarian, contributed to this report.
Joseph Schoorl, Law Clerk, contributed to this report.

Congressional Research Service
33

---