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 five tables. The first table (Table A-1) is a 50-state survey of definitions of a medical malpractice action or to whom state medical malpractice statutes apply. The second table (Table A-2) is a 50-state survey of caps on noneconomic and punitive damages. The third table (Table A-3) 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. The fourth table (Table A-4) is a 50-state survey of whether the doctrine of joint and several liability applies to malpractice actions in a state and whether periodic payment of damages is to be considered in an award for a medical malpractice action. The fifth table (Table A-5) is a 50-state survey of limits on attorneys’ contingency fees. The sixth table (Table A-6) is a 50-state survey of statute of limitation provisions for both medical malpractice and product liability actions.
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 five tables. The first table (Table A-1) is a 50-state survey of definitions of a medical malpractice action or to whom state medical malpractice statutes apply. The second table (Table A-2) is a 50-state survey of caps on noneconomic and punitive damages. The third table (Table A-3) 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. The fourth table (Table A-4) is a 50-state survey of whether the doctrine of joint and several liability applies to malpractice actions in a state and whether periodic payment of damages is to be considered in an award for a medical malpractice action. The fifth table (Table A-5) is a 50-state survey of limits on attorneys' contingency fees. The sixth table (Table A-6) is a 50-state survey of statute of limitation provisions for both medical malpractice and product liability actions.
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.
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:
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
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 See Table A-2 for a 50-state survey of caps on noneconomic and punitive damages.
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 $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
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.
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 30 years later inflation has taken a toll.14
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. 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 See Table A-3 for 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.
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 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
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
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 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
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."33 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."34
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."35 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.36
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. See Table A-4 for a 50-state survey of whether periodic payment of damages is to be considered in an award for a medical malpractice action.
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 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."37
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.38 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."39
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.
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% 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%) 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% of the damages. See Table A-4 for a 50-state survey of whether the doctrine of joint and several liability applies to malpractice actions in a state.
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.40
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.41
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.
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, that is, 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).42 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.
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.43
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 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.44
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.45 Abolishing the collateral source rule will reduce damage awards without denying plaintiffs full recovery of their damages.
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.46
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 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."47
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. See Table A-5 for a 50-state survey of limits on attorneys' contingency fees.
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.48
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."49
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,50 and that studies have shown that contingent fees do not encourage frivolous lawsuits.51 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."52
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. See Table A-6 for a 50-state survey on general statute of limitation provisions for both medical malpractice and product liability actions, as some tort reform proposals' provisions would affect the statute of limitations for both types of actions.
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 (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
Table A-1 sets forth the definition of a medical malpractice action in the 50 states. As not all states use the words "medical malpractice action" in their statutes, this table was compiled by using variations and combinations of the terms medical, health care, liability, malpractice, negligence, injury, and claim. This table does not cover the definition of malpractice actions where a state had a separate statutory scheme for other medical specialties, for example, dentistry. Where possible, this table provides state definitions of medical malpractice or health care liability action and to whom such provisions apply. Where a state had provisions on medical liability tort reform but no explicit definition of a medical malpractice action, the table reflects to which groups these provisions apply to give a sense of the scope of the parties that are covered under the medical malpractice statutes. For example, if the state had a specific statute of limitation on actions for medical malpractice, the table provides the definition of "health care provider" as used applicable to that statute. Where "no statute found" is entered means that there may have been state statutes governing medical malpractice actions, but that CRS could not identify a specific provision that defines an action for medical malpractice, or similar phrases, or a specific definition of the individuals to whom the provisions apply.
Table A-1. State Definitions of Medical Malpractice or Health Care Lawsuit
|
State |
Definition |
|
Alabama |
Ala. Code § 6-5-481 (2011) Medical Liability Actions: Definitions. "Medical liability" means a finding by a judge, jury, or arbitration panel that a physician, dentist, medical institution, or other health care provider did not meet the applicable standard of care, and that such failure was the proximate cause of the injury complained of, resulting in damage to the patient. |
|
Alaska |
Alaska Stat. § 09.55.560 (2011) Medical Malpractice Actions: Definitions. "Professional negligence" means a negligent act or omission by a health care provider in rendering professional services. "Health care provider" means an acupuncturist licensed under AS 08.06; an audiologist or speech-language pathologist licensed under AS 08.11; a chiropractor licensed under AS 08.20; a dental hygienist licensed under AS 08.32; a dentist licensed under AS 08.36; a nurse licensed under AS 08.68; a dispensing optician licensed under AS 08.71; a naturopath licensed under AS 08.45; an optometrist licensed under AS 08.72; a pharmacist licensed under AS 08.80; a physical therapist or occupational therapist licensed under AS 08.84; a physician or physician assistant licensed under AS 08.64; a podiatrist; a psychologist and a psychological associate licensed under AS 08.86; a hospital as defined in AS 47.32.900, including a governmentally owned or operated hospital; an employee of a health care provider acting within the course and scope of employment; an ambulatory surgical facility and other organizations whose primary purpose is the delivery of health care, including a health maintenance organization, individual practice association, integrated delivery system, preferred provider organization or arrangement, and a physical hospital organization. |
|
Arizona |
Ariz. Rev. Stat. § 12-561 (2011) Actions Relating To Health Care: Definitions. "Medical malpractice action" or "cause of action for medical malpractice" means an action for injury or death against a licensed health care provider based upon such provider's alleged negligence, misconduct, errors or omissions, or breach of contract in the rendering of health care, medical services, nursing services or other health-related services or for the rendering of such health care, medical services, nursing services or other health-related services, without express or implied consent including an action based upon the alleged negligence, misconduct, errors or omissions or breach of contract in collecting, processing or distributing whole human blood, blood components, plasma, blood fractions or blood derivatives. "Licensed health care provider" means both: (a) a person, corporation or institution or certified by the state health care, medical services or health-related services and includes the officers, employees and agents thereof working under the supervision of such person, corporation or institution in providing such health care, medical services, nursing services or other health-related services; (b) a federally licensed, regulated or registered blood bank, blood center or plasma center collecting, processing or distributing whole human blood, blood components, plasma, blood fractions or derivatives for use by licensed health care provider and includes officers, employees, agents working under the supervision of the blood bank, blood center or plasma center. |
|
Arkansas |
Ark. Code Ann. § 16-114-201 (2010) Actions for Medical Injury: Definitions. As used in this subchapter, unless the context otherwise requires: "Action for medical injury" means any action against a medical care provider, whether based in tort, contract, or otherwise, to recover damages on account of medical injury; "Medical care provider" means a physician, certified registered nurse anesthetist, physician's assistant, nurse, optometrist, chiropractor, physical therapist, dentist, podiatrist, pharmacist, veterinarian, hospital, nursing home, community mental health center, psychologist, clinic, or not-for-profit home health care agency licensed by the state or otherwise lawfully providing professional medical care or services, or an officer, employee or agent thereof acting in the course and scope of employment in the providing of such medical care or medical services; and "Medical injury" or "injury" means any adverse consequences arising out of or sustained in the course of the professional services being rendered by a medical care provider, whether resulting from negligence, error, or omission in the performance of such services; or from rendition of such services without informed consent or in breach of warranty or in violation of contract; or from failure to diagnose; or from premature abandonment of a patient or of a course of treatment; or from failure to properly maintain equipment or appliances necessary to the rendition of such services; or otherwise arising out of or sustained in the course of such services. |
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California |
Cal. Civ. Code §§ 3333.1, 3333.2 (2010) Collateral Benefits and Noneconomic Losses in Medical Malpractice Actions. "Professional negligence" means a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital. "Health care provider" means any person licensed or certified pursuant to Division 2 (commencing with Section 500) of the Business and Professions Code, or licensed pursuant to the Osteopathic Initiative Act, or the Chiropractor Initiative Act, or licensed to Chapter 2.5 (commencing with Section 1440) of Division 2 of the Health and Safety Code; and any clinic, health dispensary, or health facility, licensed pursuant to Division 2 (commencing with Section 1200) of the Health and Safety Code. Health care provider includes the legal representatives of a health care provider. See also Cal. Civ. Proc. Code §§ 340.5, 364, 667.7, 1295 (2010) |
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Colorado |
No statute found. |
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Connecticut |
Conn. Gen. Stat. § 52-184c (2010) Standard of Care in Negligence Action Against Health Care Provider. Qualifications of Expert Witness. In any civil action to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, in which it is alleged that such injury or death resulted from the negligence of a health care provider, as defined in section 52-184b, the claimant shall have the burden of proving by the preponderance of the evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider. The prevailing professional standard of care for a given health care provider shall be that level of care, skill and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers. Conn. Gen. Stat. § 52-184b (2010) Failure to bill and advance payments inadmissible in malpractice cases. For the purposes of this section, "health care provider" means any person, corporation, facility or institution licensed by this state to provide health care or professional services, or an officer, employee or agent thereof acting in the course and scope of his employment. |
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Delaware |
Del. Code Ann. tit. 18, § 6801 (2011) Health Care Medical Negligence Insurance Litigation: Definitions. "Medical negligence" means any tort or breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider to a patient. The standard of skill and care required of every health care provider in rendering professional services or health care to a patient shall be that degree of skill and care ordinarily employed in the same or similar field of medicine as defendant, and the use of reasonable care and diligence. |
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District of Columbia |
No statute found. |
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Florida |
Fla. Stat. Ann. § 766.102 (2011) Medical Negligence; Standards of Recovery; Expert Witness. In any action for recovery of damages based on the death or personal injury of any person in which it is alleged that such death or injury resulted from the negligence of a health care provider as defined in s. 766.202(4), the claimant shall have the burden of proving by the greater weight of evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider. The prevailing professional standard of care for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers. Fla. Stat. Stat. § 766.202 (2011) Medical Malpractice And Related Matters: Definitions. "Health care provider" means any hospital, ambulatory surgical center, or mobile surgical facility as defined and licensed under chapter 395; a birth center licensed under chapter 383; any person licensed under chapter 458, chapter 459, chapter 460, chapter 461, chapter 462, chapter 463, part I of chapter 464, chapter 466, chapter 467, or chapter 486; a clinical lab licensed under chapter 483; a health maintenance organization certificated under part I of chapter 641; a blood bank; a plasma center; an industrial clinic; a renal dialysis facility; or a professional association partnership, corporation, joint venture, or other association for professional activity by health care providers. |
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Georgia |
Ga. Code Ann. § 9-3-70 (2011) Action for Medical Malpractice Defined. As used in this article, the term "action for medical malpractice" means any claim for damages resulting from the death of or injury to any person arising out of: (1) Health, medical, dental, or surgical service, diagnosis, prescription, treatment, or care rendered by a person authorized by law to perform such service or by any person acting under the supervision and control of the lawfully authorized person; or (2) Care or service rendered by any public or private hospital, nursing home, clinic, hospital authority, facility, or institution, or by any officer, agent, or employee thereof acting within the scope of his employment. Ga. Code Ann. § 9-9-60 (2011) Arbitration: "Medical malpractice claim" defined.
(2) Care or service rendered by any public or private hospital, nursing home, clinic, hospital authority, facility, or institution, or by any officer, agent, or employee thereof acting within the scope of his employment. See also Ga. Code Ann. §§ 9-11-8, 9-11-54 (2011) |
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Hawaii |
Haw. Rev. Stat. Ann. § 671-1 (2011) Medical Torts: Definitions. "Medical tort" means professional negligence, the rendering of professional service without informed consent, or an error or omission in professional practice, by a health care provider, which proximately causes death, injury, or other damage to a patient. "Health care provider" means physician, osteopathic physician, surgeon, or physician assistant licensed under chapter 453, a podiatrist licensed under 463E, a health care facility as defined in section 323D-2, and the employees of any of them. Health care provider shall not mean any nursing institution, nursing service conducted by and for those who rely upon treatment by spiritual means through prayer alone, or employees of the institution or service. |
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Idaho |
Idaho Code Ann. § 6-1012 (2011) Medical Malpractice: Proof of Community Standard of Health Care Practice in Malpractice Case. In any case, claim or action for damages due to injury to or death of any person, brought against any physician and surgeon or other provider of health care, including, without limitation, any dentist, physicians' assistant, nurse practitioner, registered nurse, licensed practical nurse, nurse anesthetist, medical technologist, physical therapist, hospital or nursing home, or any person vicariously liable for the negligence of them or any of them, on account of the provision of or failure to provide health care or on account of any matter incidental or related thereto, such claimant or plaintiff must, as an essential part of his or her case in chief, affirmatively prove by direct expert testimony and by a preponderance of all the competent evidence, that such defendant then and there negligently failed to meet the applicable standard of health care practice of the community in which such care allegedly was or should have been provided, as such standard existed at the time and place of the alleged negligence of such physician and surgeon, hospital or other such health care provider and as such standard then and there existed with respect to the class of health care provider that such defendant then and there belonged to and in which capacity he, she or it was functioning. Such individual providers of health care shall be judged in such cases in comparison with similarly trained and qualified providers of the same class in the same community, taking into account his or her training, experience, and fields of medical specialization, if any. If there be no other like provider in the community and the standard of practice is therefore indeterminable, evidence of such standard in similar Idaho communities at said time may be considered. As used in this act, the term "community" refers to that geographical area ordinarily served by the licensed general hospital at or nearest to which such care was or allegedly should have been provided. |
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Illinois |
735 Ill. Comp. Stat. Ann. § 5/2-1704 (2011) Medical Malpractice Action. As used in this Part, "medical malpractice action" means any action, whether in tort, contract or otherwise, in which the plaintiff seeks damages for injuries or death by reason of medical, hospital, or other healing art malpractice. The term "healing art" shall not include care and treatment by spiritual means through prayer in accord with the tenets and practices of a recognized church or religious denomination. |
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Indiana |
Ind. Code Ann. § 34-18-2-18 (2011) Malpractice. "Malpractice" means a tort or breach of contract based on health care or professional services that were provided, or that should have been provided, by a health care provider, to a patient. Ind. Code Ann. § 34-18-2-14 (2011) Health Care Provider. "Health care provider" means an individual, a partnership, a limited liability company, a corporation, a professional corporation, a facility, or an institution licensed or legally authorized by this state to provide health care or professional services as a physician, psychiatric hospital, hospital, health facility, emergency ambulance service ( IC 16-18-2-107), dentist, registered or licensed practical nurse, physician assistant, midwife, optometrist, podiatrist, chiropractor, physical therapist, respiratory care practitioner, occupational therapist, psychologist, paramedic, emergency medical technician-intermediate, emergency medical technician-basic advanced, or emergency medical technician, or a person who is an officer, employee, or agent of the individual, partnership, corporation, professional corporation, facility, or institution acting in the course and scope of the person's employment It also includes: college, university, or junior college that provides health care to a student, faculty member, or employee, and the governing board or a person who is an officer, employee, or agent of the college, university, or junior college acting in the course and scope of the person's employment; a blood bank, community mental health center, community mental retardation center, community health center, or migrant health center; a home health agency (as defined in IC 16-27-1-2); a health maintenance organization (as defined in IC 27-13-1-19)'; a health care organization whose members, shareholders, or partners are health care providers under subdivision (1); a corporation, limited liability company, partnership, or professional corporation not otherwise qualified under this section that, as one its functions, provides health care, or is organized or registered under state law, and is determined to be eligible for coverage as a health care provider under this article for its health care function. |
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Iowa |
Iowa Code Ann. § 614.1 (2010) Limitations on Actions. Period. Limitation on time for "malpractice" which is an action founded on injuries to persons for wrongful death against any physician and surgeon, osteopathic physician and surgeon, dentist, podiatrist, physician, optometrist, pharmacist, chiropractor, physician assistant, or nurse, licensed under chapter 147, or hospital licensed under chapter 135B, arising out of patient care. |
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Kansas |
No statute found. |
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Kentucky |
Ky. Rev. Stat. Ann. § 304.40-260 (2010) Health Care Malpractice Insurance Claims: Definitions. As used in KRS 304.40-250 to 304.40-320, the following words and terms shall be defined as follows: "Malpractice" means any tort or breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider to the patient, "Health care" means any act, or treatment performed or furnished, or which should have been performed or furnished, by any health care provider to a patient during that patient's care, treatment, or confinement for a physical or mental condition. |
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Louisiana |
La. Rev. Stat. Ann. 40:1299.41 (2011) Medical Malpractice: Definitions and general applications. "Malpractice" means any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely and the handling of a patient, including loading and unloading of a patient, and also includes all legal responsibility of a health care provider arising from acts or omissions during the procurement of blood or blood components, in the training or supervision of health care providers, or from defects in blood, tissue, transplants, drugs, and medicines, or from defects in or failures of prosthetic devices implanted in or used on or in the person of a patient. |
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Maine |
No statute found. |
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Maryland |
Md. Code Cts. & Jud. Proc. Code Ann. § 3-2A-01 (2011) Health Care Malpractice Claims: Definitions. "Medical injury" means injury arising or resulting from the rendering or failure to render health care. "Health care provider" means a hospital, a related institution as defined in § 19-301 of the Health - General Article, a medical day care center, a hospice care program, an assisted living program, a freestanding ambulatory care facility as defined in § 19-3B-01 of the Health - General Article, a physician, an osteopath, an optometrist, a chiropractor, a registered or licensed practical nurse, a dentist, a podiatrist, a psychologist, a licensed certified social worker-clinical, and a physical therapist, licensed or authorized to provide one or more health care services in Maryland. "Health care provider" does not include any nursing institution conducted by and for those who rely upon treatment by spiritual means through prayer alone in accordance with the tenets and practices of a recognized church or religious denomination. |
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Massachusetts |
Mass. Ann. Laws, ch. 231, § 60B (2010) Tribunal for Screening of Medical Malpractice Claims; Evidence Considered; Subpoena Power; Witnesses; Bond Requirements; Provider of Health Care Defined. For the purposes of this section, a provider of health care shall mean a person, corporation, facility or institution licensed by the commonwealth to provide health care or professional services as a physician, hospital, clinic or nursing home, dentist, registered or licensed nurse, optometrist, podiatrist, chiropractor, physical therapist, psychologist, social worker, or acupuncturist, or an officer, employee or agent thereof acting in the course and scope of his employment. |
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Michigan |
Mich. Comp. Laws. Serv. § 600.2912a (2011) Action alleging malpractice; Burden of Proof. In an action alleging malpractice, the plaintiff has the burden of proving that in light of the state of the art existing at the time of the alleged malpractice: (a) The defendant, if a general practitioner, failed to provide the plaintiff the recognized standard of acceptable professional practice or care in the community in which the defendant practices or in a similar community, and that as a proximate result of the defendant failing to provide that standard, the plaintiff suffered an injury. (b) The defendant, if a specialist, failed to provide the recognized standard of practice or care within that specialty as reasonably applied in light of the facilities available in the community or other facilities reasonably available under the circumstances, and as a proximate result of the defendant failing to provide that standard, the plaintiff suffered an injury. |
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Minnesota |
Minn. Stat. Ann. § 541.076 (2010) Health Care Provider Action: Limitation of Time. For purposes of this section, "health care provider" means a physician, surgeon, dentist, occupational therapist, or other health care professionals as defined in section 145.61, hospital, treatment or facility. |
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Mississippi |
Mississippi Code Ann. § 15-1-36 (2010) Actions for Medical Malpractice: Limitation of Time. Specific time limitation for an action against a licensed physician, osteopath, dentist, hospital, nurse, pharmacist, podiatrist, optometrist or chiropractor for injuries or wrongful death arising out of course of medical, surgical, or other professional services. |
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Missouri |
Missouri § 516.015 (2011) Statute of Limitations: Actions against health care providers (medical malpractice). Actions against physicians, hospitals, dentists, registered or licensed practical nurses, optometrists, podiatrists, pharmacists, chiropractors, professional physical therapists, and any other entity providing health care services and all employees of any of the foregoing acting in the course and scope of their employment, for damages for malpractice, negligence, error or mistake related to health care. Missouri § 538.205 (2011) Tort Actions Based on Improper Health Care. Definitions. "Health care provider" means any physician, hospital, health maintenance organization, ambulatory surgical center, long-term facility, dentist, registered or licensed practical nurse, optometrist, podiatrist, pharmacist, chiropractor, professional physical therapist, psychologist, physician-in-training, and any other entity that provides health care services under the authority of a license or certificate. "Health care services" means any services rendered by a health care provider in the ordinary course of the health care provider's profession, or, if the health care provider is an institution, in the ordinary course of furthering the purposes for which is organized. Professional services shall include, but are not limited to, transfer to a patient of goods or services incidental to or pursuant to the practice of the health care provider's profession. |
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Montana |
Mont. Code Ann. § 25-9-411 (2010) (Temporary)Medical malpractice Noneconomic Damages Limitation. "Malpractice claim" means a claim based on a negligent act or omission by a health care provider in the rendering of professional services that is the proximate cause of a personal injury or wrongful death. Mont. Code Ann. § 27-6-103 (2010) Montana Medical Legal Panel Act: Definitions. "Malpractice claim" means a claim or potential claim of a claimant against a health care provider for medical or dental treatment, lack of medical or dental treatment, or other alleged departure from accepted standards of health care that proximately results in damage to the claimant, whether the claimant's claim or potential claim sounds in tort or contract, and includes but is not limited to allegations of battery or wrongful death. |
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Nebraska |
Neb. Rev. Stat. Ann. § 44-2810 (2010) Nebraska Hospital-Medical Liability Act: Malpractice or Professional Negligence, Defined. Malpractice or professional negligence shall mean that, in rendering professional services, a health care provider has failed to use the ordinary and reasonable care, skill, and knowledge ordinarily possessed and used under like circumstances by members of his profession engaged in a similar practice in his or in similar localities. In determining what constitutes reasonable and ordinary care, skill, diligence on the part of a health care provider in a particular community, the test shall be that which health care providers, in the same community or similar communities and engaged in the same or similar lines of work, would ordinarily exercise and devote to the benefit of their patients under like circumstances. Neb. Rev. Stat. Ann. § 44-2803 (2010) Nebraska Hospital-Medical Liability Act; Health Care Provider, Defined. Health care provider means: (1) a physician; (2) a certified registered nurse anesthetist; (3) an individual, partnership, limited liability company, corporation, association, facility, institution, or other entity authorized by law to provide professional medical services by physicians or certified nurse anesthetists; (4) a hospital; or (5) a personal representative as defined in section 30-2209 who is successor or assignee of any health care provider designated in subdivisions (1)-(4). |
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Nevada |
Nev. Rev. Stat. Ann. § 41A.009 (2010) Actions for Medical or Dental Malpractice: "Medical malpractice" Defined. "Medical malpractice" means the failure of a physician, hospital or employee of a hospital, in rendering services, to use the reasonable care, skill or knowledge ordinarily used under similar circumstances. Nev. Rev. Stat. Ann. § 630A.060 (2010) Homeopathic Medicine: "Malpractice" Defined. "Malpractice" means failure on the part of a homeopathic physician to exercise the degree of care, diligence and skill ordinarily exercised by homeopathic physicians in good standing in the community in which he or she practices. As used in this section, "community" embraces the entire area customarily served by homeopathic physicians among whom a patient may reasonably choose, not merely the particular area inhabited by the patients of that individual physician or the particular city or place where the homeopathic physician has an office. Nev. Rev. Stat. Ann. § 633.071 (2010) Osteopathic Medicine: "Malpractice" Defined. "Malpractice" means failure on the part of an osteopathic physician to exercise the degree of care, diligence and skill ordinarily exercised by osteopathic physicians in good standing in the community in which he or she practices. |
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New Hampshire |
N.H. Rev. Stat. Ann. § 507-C:1 (2011) Actions for Medical Injury: Definitions. "Action for medical injury" means any action against a medical care provider, whether based in tort, contract, or otherwise, to recover damages on account of medical injury. "Medical care provider" means a physician's assistant, registered or licensed practical nurse, hospital, clinic or not-for-profit home health care agency licensed by the state or otherwise lawfully providing medical care or services, or an officer, employee or agent thereof acting in the course and scope of employment. "Medical injury" or "injury" means any adverse, untoward or undesired consequences arising out of or sustained in the course of professional services rendered by a medical care provider, whether resulting from negligence, error or omission in the performance of such services; from rendition of such services without informed consent or in breach of warranty or in violation of contract; from failure to diagnose; from premature abandonment of a patient or of a course of treatment; from failure properly to maintain equipment or appliances necessary to the rendition of such services; or otherwise arising out of sustained in the course of such service. See also N.H. Rev. Stat. Ann. § 507-E: 1 (2011) Medical Injury Actions Definitions. |
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New Jersey |
No statute found. |
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New Mexico |
N.M. Stat. Ann. § 41-5-3 (2010) Medical Malpractice Act: Definitions. "Malpractice claim" includes any cause of action arising in this state against a health care provider for medical treatment, lack of medical treatment or other claimed departure from accepted standards of health care which proximately results in injury to the patient, whether the patient's claim or cause of action sounds in tort or contract, and includes but is not limited to actions based on battery or wrongful death; "malpractice claim" does not include a cause of action arising out of the driving, flying or nonmedical acts involved in the operation, use or maintenance of a vehicular or aircraft ambulance. "Health care provider" means a person, corporation, organization, facility or institution licensed or certified by this state to provide health care or professional services as a doctor of medicine, hospital, outpatient health care facility, doctor of osteopathy, chiropractor, podiatrist, nurse anesthetist or physician's assistant. |
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New York |
No statute found. |
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North Carolina |
N.C. Gen. Stat. § 90-21.11 (2010) Medical Malpractice Actions: Definitions. As used in this Article, the term "medical malpractice action" means a civil action for damages for personal injury or death arising out of the furnishing or failure to furnish professional services in the performance of medical, dental, or other health care by a health care provider. As used in this Article, the term "health care provider" means without limitation any person who pursuant to the provisions of Chapter 90 of the General Statutes is licensed, or is otherwise registered or certified to engage in the practice of or otherwise performs duties associated with any of the following: medicine, surgery, dentistry, pharmacy, optometry, midwifery, osteopathy, podiatry, chiropractic, radiology, nursing, physiotherapy, pathology, anesthesiology, anesthesia, laboratory analysis, rendering assistance to a physician, dental hygiene, psychiatry, psychology; or a hospital or a nursing home; or any other person who is legally responsible for the negligence of such person, hospital or nursing home; or any other person acting at the direction or under the supervision of any of the foregoing persons, hospital, or nursing home. |
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North Dakota |
N.D. Cent. Code § 32-42-01 (2011) Alternative Dispute Resolution: Definitions. "Health care malpractice action" means a claim for relief brought against a health care provider, or other defendant joined in the action, regardless of the theory of liability on which the claim is based, in which the claimant alleges a health care malpractice claim. "Health care malpractice claim" means a claim brought against a health care provider or other defendant joined in a claim alleging that an injury was suffered by the claimant as a result of health care negligence or gross negligence, breach of express or implied warranty or contract, failure to discharge a duty to warn, or failure to obtain consent arising from the provision of or failure to provide health care services. "Health care negligence" means an act or omission by a health care provider which deviates from the applicable standard of care and causes an injury. |
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Ohio |
Ohio Rev. Code Ann. § 2305.113 (2011) Time Limitations for Bringing Medical, Dental, Optometric, or Chiropractic Claims. "Medical claim" means any claim that is asserted in any civil action against a physician, podiatrist, hospital, home, or residential facility, against any employee or agent of a physician, podiatrist, hospital, home, or residential facility, or against a licensed practical nurse, registered nurse, advanced practice nurse, physical therapist, physician assistant, emergency medical technician-basic, emergency medical technician-intermediate, or emergency medical technician-paramedic, and that arises out of the medical diagnosis, care, or treatment of any person. |
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Oklahoma |
Okla. Stat. tit. 63, § 1-1708.1C (2010) Affordable Access To Health Care Act: Definitions. "Medical liability action" means any civil action involving, or contingent upon, personal injury or wrongful death brought against a health care provider based on professional negligence. "Health care provider" means any person or other entity who is licensed pursuant to provision Title 59 or Title 63 of the Oklahoma Statutes, or pursuant to the laws of another state, to render health care services in the practice of a profession or in the ordinary course of business. "Health care services" means any services provided by a health care provider, or by an individual working under the supervision of a health care provider, that relate to diagnosis, assessment, prevention, treatment or care of any human illness, disease, injury or condition. |
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Oregon |
No statute found. |
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Pennsylvania |
42 Pa. Cons. Stat. § 5101.1, 40 (2010) Venue in Medical Professional Liability Actions. 40 Pa. Cons. Stat. § 1303.103 (2010) Medical Care Availability and Reduction of Error Act. "Medical professional liability action" means any proceeding in which a medical professional liability claim is asserted, including an action in a court of law or an arbitration proceeding. "Medical professional liability claim" means any claim seeking the recovery of damages or loss from a health care provider arising out of any tort or breach of contract causing injury or death resulting from the furnishing of health care services which were or should have been provided. "Health care provider" means any primary health care center, a personal care home licensed by the Department of Public Welfare, or a person including a corporation, university or other education institution licensed or approved by the Commonwealth to provide health care or professional medical services as a physician, certified nurse midwife, a podiatrist, hospital, nursing home, birth center, and an officer, employee or agent of any of them acting in the course and scope of employment. |
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Rhode Island |
R.I. Gen. Laws § 5-37-1 (2011) Board Of Medical Licensure And Discipline: Definitions. "Medical malpractice" or "malpractice" means any tort, or breach of contract based on health care or professional services rendered, or which should have been rendered, by a physician, dentist, hospital, clinic, health maintenance organization or professional service corporation providing health care services and organized under chapter 5.1 of title 7, to a patient or the rendering of medically unnecessary services except at the informed request of the patient. |
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South Carolina |
S.C. Code Ann. § 15-79-110 (2010) Medical Malpractice Actions: Definitions. "Medical malpractice" means doing that which the reasonably prudent health care provider or health care institution would not do or not doing that which the reasonably prudent health care provider or health care institution would do in the same or similar circumstances. "Health care institution" means an ambulatory surgical facility, a hospital, an institutional general infirmary, a nursing home, and a renal dialysis facility. "Health care provider" means a physician, surgeon, osteopath, nurse, oral surgeon, dentist, pharmacist, chiropractor, optometrist, podiatrist, or any similar category of licensed health care provider, including health care practice, association, partnership, or other legal entity. |
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South Dakota |
S.D. Codified Laws § 15-2-14.1 (2010) Medical Malpractice Action: Two-year limitation. An action against a physician, surgeon, dentist, hospital, sanitarium, registered nurse, licensed practice nurse, chiropractor, or other practitioner of the health arts for malpractice, error, mistake or failure to cure, whether based upon tort or contract, can be commenced only within two years after the alleged malpractice. |
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Tennessee |
Tenn. Code Ann. § 56-54-103 (2011) Tennessee Medical Malpractice Reporting Act: Chapter Definitions. "Medical malpractice" means an actual or alleged negligent act, error, or omission in providing or failing to provide health care services. "Health care provider" means (A) a person licensed in either title 63, except chapter 12, or title 68 to provide health care or related services, including, but not limited to, an acupuncturist, a physician, a surgeon, an osteopathic physician, a dentist, a nurse, an optometrist, a podiatrist, a chiropractor, a physical therapist, a psychologist, a pharmacist, an optician, a physician assistant, a certified professional midwife, an orthopedic physician assistant, or a nurse practitioner. |
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Texas |
Tex. Civ. Prac. & Rem. Code § 74.001 (2010) Medical Liability: Definitions. "Health care liability claim" means a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to death of a claimant, whether the claimant's claim or cause of actions sounds in tort or contract. "Health care provider" means any person, partnership, professional association, corporation, facility, or institution duly licensed, certified, registered, or chartered by the State of Texas to provide health care, including: a registered nurse; a dentist; a podiatrist; a pharmacist; a chiropractor; an optometrist; or health care institution. (B) The term includes: (i) an officer, director, shareholder, member, partner, manager, owner, or affiliate of a health care provider or physician; and (ii) an employee, independent contractor, or agent of a health care provider or physician acting in the course and scope of the employment or contractual relationship. |
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Utah |
Utah Code Ann. § 78B-3-403 (2011) Utah Health Care Malpractice Act: Definitions. "Malpractice action against a health care provider" means any action against a health care provider, whether in contract, tort, breach of warranty, wrongful death, or otherwise, based upon alleged personal injuries relating to or arising out of health care rendered or which should have been rendered by the health care provider. "Health care provider" includes any person, partnership, association, corporation, or other facility or institution who causes to be rendered or who renders health care or professional services as a hospital, health care facility, physician, registered nurse, licensed practical nurse, nurse-midwife, licensed Direct-entry midwife, dentist, dental hygienist, optometrist, clinical laboratory technologist, pharmacist, physical therapist, physical therapist assistant, podiatric physician, psychologist, chiropractic physician, naturopathic physician, osteopathic physician, osteopathic physician and surgeon, audiologist, speech-language pathologist, clinical social worker, certified social worker, social service worker, marriage and family counselor, practitioner of obstetrics, or others rendering similar care and services relating to or arising out of the health needs of persons or groups of persons and officers, employees, or agents of any of the above acting in the course and scope of their employment. |
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Vermont |
Vt. Stat. Ann. tit. 12, § 1908 (2011) Conduct of Trial: Burden of proof. For the purpose of this section, malpractice shall mean professional medical negligence comprised of the elements listed herein. In a malpractice action based on the negligence of the personnel of a hospital, a physician licensed under chapter 23 of Title 26, a dentist licensed under chapter 13 of Title 26, a podiatrist licensed under chapter 7 of Title 26, a chiropractor licensed under chapter 9 of Title 26, a nurse licensed under chapter 27 of Title 26, or an osteopathic physician licensed under chapter 33 of Title 26. |
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Virginia |
Va. Code Ann. § 8.01-581.1 (2011) Medical Malpractice Review Panels; Arbitration Of Malpractice Claims: Definitions. "Malpractice" means any tort action or breach of contract action for personal injuries or wrongful death, based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient. "Health care provider" means (i) a person, corporation, facility or institution licensed by this Commonwealth to provide health care or professional services as a physician or hospital, dentist, pharmacist, registered nurse or licensed practical nurse or a person who holds a multistate privilege to practice such nursing under the Nurse Licensure Compact, optometrist, podiatrist, chiropractor, physical therapist, physical therapy assistant, clinical psychologist, clinical social worker, professional counselor, licensed marriage and family therapist, licensed dental hygienist, health maintenance organization, or emergency medical care attendant or technician who provides services on a fee basis; (ii) a professional corporation, all of whose shareholders or members are so licensed; (iii) a partnership, all of whose partners are so licensed; (iv) a nursing home as defined in § 54.1-3100 except those nursing institutions conducted by and for those who rely upon treatment by spiritual means alone through prayer in accordance with a recognized church or religious denomination; (v) a professional limited liability company comprised of members as described in subdivision A 2 of § 13.1-1102; (vi) a corporation, partnership, limited liability company or any other entity, except a state-operated facility, which employs or engages a licensed health care provider and which primarily renders health care services; or (vii) a director, officer, employee, independent contractor, or agent of the persons or entities referenced herein, acting within the course and scope of his employment or engagement as related to health care or professional services. |
|
Washington |
Wash. Rev. Code Ann. § 48.140.010 (2011) Medical Malpractice Closed Claim Reporting: Definitions. "Medical malpractice" means an actual or alleged negligent act, error, or omission in providing or failing to provide health care services that is actionable under chapter 7.70 RCW. Was. Rev. Code Ann. § 7.70.020 (2011) Actions For Injuries Resulting from Health Care: Definitions. In this chapter, "health care provider" means either: (1) A person licensed by this state to provide health care or related services including, but not limited to, an East Asian medicine practitioner, a physician, osteopathic physician, dentist, nurse, optometrist, podiatric physician and surgeon, chiropractor, physical therapist, psychologist, pharmacist, optician, physician assistant, midwife, osteopathic physician's assistant, nurse practitioner, or physician's trained mobile intensive care paramedic, including, in the event such person is deceased, his or her estate or personal representative; (2) An employee or agent of a person described in part (1) above, acting in the course and scope of his employment, including, in the event such employee or agent is deceased, his or her estate or personal representative; or (3) An entity, whether or not incorporated, facility, or institution employing one or more persons described in part (1) above, including, but not limited to, a hospital, clinic, health maintenance organization, or nursing home; or an officer, director, employee, or agent thereof acting in the course and scope of his or her employment, including in the event such officer, director, employee, or agent is deceased, his or her estate or personal representative. |
|
West Virginia |
W. Va. Code Ann. § 55-7B-2 (2011) Medical Professional Liability: Definitions. "Medical professional liability" means any liability for damages resulting from the death or injury of a person for any tort or breach of contract based on health care services rendered, or which should have been rendered, by a health care provider or health care facility to a patient. "Health care" means any act or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to or on behalf of a patient during the patient's medical care, treatment or confinement. "Medical injury" means injury or death to a patient arising or resulting from the rendering of or failure to render health care. |
|
Wisconsin |
Wis. Stat. § 655.001 (2010) Health Care Liability and Injured Patients And Families Compensation: Definitions. Chapter 655 of the Wisconsin statutes covers health care liability actions. This applies to: "Health care practitioner" means a health care professional, as defined in s. 180.1901 (1m), who is an employee of a health care provider described in s. 655.002 (1) (d), (e), (em), or (f) and who has the authority to provide health care services that are not in collaboration with a physician under s. 441.15 (2) (b) or under the direction and supervision of a physician or nurse anesthetist. "Health care provider" means a person to whom this chapter applies under s. 655.002 (1) or a person who elects to be subject to this chapter under s. 655.002 (2). |
|
Wyoming |
Wyo. Stat. Ann. § 1-1-130 (2011) Actions Against Health Care Providers; Admissibility of Evidence. In any civil action or arbitration brought by an alleged victim of an unanticipated outcome of medical care against a health care provider. For purposes of this section: "Health care provider" means a person who is licensed, certified or otherwise authorized or permitted by the laws of this state to administer health care in the ordinary course of business or practice of a profession "Unanticipated outcome" means the result of a medical treatment or procedure that differs from an expected result. Wyo. Stat. Ann. § 9-2-1515 (2011). Medical Review Panel: Definitions. |
Table A-2 summarizes state laws that impose caps on punitive damages and noneconomic damages in medical malpractice cases. Where "no statute found" is entered, 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. This table quotes some, but not necessarily all, state constitutional provisions that prohibit caps.
As discussed in "Noneconomic Damages," 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; that is, 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.
Table A-2. State Caps on Noneconomic and Punitive Damages
in Medical Malpractice Lawsuits
|
State |
Noneconomic Damages |
Punitive Damages |
|
Alabama |
Ala. Code § 6-5-544 (2011) Imposes a $400,000 cap on noneconomic losses, including punitive damages. 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). |
Ala. Code § 6-11-21 (2011) The greater of three times compensatory damages or $500,000 ($1.5 million if physical injury), with exceptions. |
|
Alaska |
Alaska Stat. § 09.17.010 (2011) Imposes a $400,000 cap or the injured person's life expectancy in years multiplied by $8,000, whichever is greater, but $1,000,000 or the person's life expectancy in years multiplied by $25,000, whichever is greater, when the damages are awarded for severe permanent physical impairment or severe disfigurement. |
Alaska Stat. § 09.17.020 (2011) The greater of three times compensatory damages or $500,000, except if defendant was motivated by financial gain and actually knew the adverse consequences, then the greatest of four times compensatory damages, four times financial gain, or $7,000,000. |
|
Arizona |
Ariz. Const. Art. II, § 31 (2011) No law shall be enacted in this State limiting the amount of damages to be recovered for causing the death or injury of any person. |
Ariz. Const. Art. II, § 31 (2011) No law shall be enacted in this State limiting the amount of damages to be recovered for causing the death or injury of any person. |
|
Arkansas |
Ark. Const. Art. 5, § 32 (2010) No law shall be enacted limiting the amount to be recovered for injuries resulting in death or for injuries to persons or property. |
Ark. Code Ann. § 16-55-208 (2010) The greater of $250,000 or three times compensatory damages, not to exceed $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) $250,000. |
No statute found. |
|
Colorado |
Colo. Rev. Stat. §§ 13-21-102.5, 13-64-302 (2010) $250,000 noneconomic cap, but $500,000 cap if court finds justification for more than $250,000. Both caps adjusted for inflation. $1,000,000 total cap in suits against health care providers. |
Colo. Rev. Stat. § 13-21-102 (2010) The amount of actual damages awarded, but three times that amount if the defendant continues to act in a willful and wanton manner during the pendency of the case. |
|
Connecticut |
Conn. Gen. Stat. § 52-228c (2010) 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. |
No statute found. |
|
Delaware |
No statute found. |
No statute found. |
|
District of Columbia |
No statute found. |
No statute found. |
|
Florida |
Fla. Stat. Ann. § 766.118(2) (2011) $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. |
Fla. Stat. Ann. § 768.73(1) (2011) The greater of three times compensatory damages or $500,000, except, if wrongful conduct was motivated solely by unreasonable financial gain, and unreasonably dangerous nature of the conduct and high likelihood of injury were known, then the greater of four times compensatory damages or $2 million. No cap where specific intent to harm plaintiff. Fla. Stat. Ann. § 766.207(7)(d) (2011) Punitive damages prohibited in voluntary binding arbitration. |
|
Georgia |
Ga. Code Ann. § 51-13-1 (2011) Health care providers or medical facility: $350,000. Medical facilities: $750,000. The aggregate amount of noneconomic damages recoverable under such subsections shall in no event exceed $1,050,000.00. This provision held unconstitutional. Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 691 S.E.2d 218 (Ga. 2010). |
Ga. Code Ann. § 51-12-5.1 (2011) $250,000. If it is found that the defendant acted, or failed to act, with the specific intent to cause harm, or that the defendant acted or failed to act while under the influence of alcohol, drugs other than lawfully prescribed drugs administered in accordance with prescription, 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 (2011) $375,000 (cap does not apply to intentional torts). |
No statute found. |
|
Idaho |
Idaho Code Ann. § 6-1603 (2011) For actions accruing after July 1, 2003, $250,000 subject to increase or decrease in accordance with the average annual wage. |
Idaho Code Ann. § 6-1604 (2011) For actions accruing after July 1, 2003, the greater of $250,000 or three times compensatory damages. |
|
Illinois |
735 Ill. Comp. Stat. Ann. 5/2-1706.5 (2011) Hospital and its personnel or hospital affiliates: $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). |
735 Ill. Comp. Stat. Ann. 5/2-1115 (2011) Punitive damages are not recoverable in healing art and legal malpractice cases. |
|
Indiana |
Ind. Code Ann. § 34-18-14-3 (2011) $1,250,000., total cap. Qualified health care provider: $250,000 total cap. |
Ind. Code Ann. § 34-51-3-4 (2011) Greater of three times compensatory damages or $50,000. |
|
Iowa |
No statute found. |
No statute found. |
|
Kansas |
Kan. Stat. Ann. § 60-19a02(b) (2009) $250,000 by each party from all defendants. |
Kan. Stat. Ann. § 60-3702(e), (f) (2009) 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) The General Assembly shall have no power to limit the amount to be recovered for injuries resulting in death, or for injuries to person or property. |
Ky. Const. § 54 (2010) The General Assembly shall have no power to limit the amount to be recovered for injuries resulting in death, or for injuries to person or property. |
|
Louisiana |
La. Rev. Stat. Ann. § 40:1299.42 (2011) $500,000 total cap, exclusive of future medical care and related benefits. Qualified health care provider: $100,000 total cap per patient. |
Punitive damages prohibited at common law. |
|
Maine |
Me. Rev. Stat. tit. 18-A, § 2-804(b) (2011) Wrongful death actions: $500,000 for the loss of comfort, society and companionship of the deceased, including any damages for emotional distress arising from the same facts. |
Me. Rev. Stat. tit. 18-A, § 2-804(b) (2011) Wrongful death actions: $250,000. |
|
Maryland |
Md. Code Ann., Cts. & Jud. Proc. § 3-2A-09 (2011) 1) (i) Except as provided in paragraph (2)(ii), a cause of action arising between January 1, 2005, and December 31, 2008, inclusive, may not exceed $650,000. 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. |
No statute found |
|
Massachusetts |
Mass. Ann. Laws, ch. 231, § 60H (2010) $500,000, unless death resulted or "special circumstances" are found. Mass. Ann. Laws, ch. 231, § 85K (2010) Charitable institution: $20,000 total cap. |
Mass. Ann. Laws, ch. 229, § 2 (2010) In wrongful death cases, not less than $5,000 where decedent's death was caused by the malicious, willful, wanton or reckless conduct of the defendant or by the gross negligence of the defendant. Punitive damages otherwise prohibited at common law. |
|
Michigan |
Mich. Comp. Laws. Serv. § 600.1483 (2011) $280,000, recoverable by all plaintiffs, resulting from the negligence of all defendants, but $500,000 if a serious injury enumerated in the statute occurred. |
No statute found. |
|
Minnesota |
No statute found. |
No statute found. |
|
Mississippi |
Miss. Code Ann. § 11-1-60 (2010) $500,000 cap for injury based on malpractice or breach of standard of care against a provider of health care, including institutions for aged or infirm. |
Miss. Code Ann. § 11-1-65 (2010) $20 million if defendant's net worth exceeds $1 billion; $15 million if it exceeds $750 million but is not more than $1 billion; $10 million if it 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) Not to exceed $350,000 irrespective of the number of defendants. |
No statute found. |
|
Montana |
Mont. Code Ann. § 25-9-411 (2010) $250,000 cap on noneconomic damages for actions based on the same act or series of acts that allegedly caused the injury, injuries, death or deaths; or regardless the number of defendant health care providers. |
Mont. Code Ann. § 27-1-220 (2010) $10 million or 3% of a defendant's net worth, whichever is less. |
|
Nebraska |
Neb. Rev. Stat. Ann. § 44-2825 (2010) Healthcare provider and the Excess Liability Fund: $1,750,000, total cap. Healthcare provider: $500,000. |
Punitive damages prohibited at common law. |
|
Nevada |
Nev. Rev. Stat. Ann. § 41A.035 (2010) Not to exceed $350,000. |
Nev. Rev. Stat. Ann. § 42.005 (2010) Three times compensatory damages if compensatory damages are $100,000 or more; $300,000 if the compensatory damages are less than $100,000. |
|
New Hampshire |
N.H. Rev. Stat Ann. § 507-C:7 (2011) Not to exceed $250,000. This provision held unconstitutional. Carson v. Maurer, 424 A.2d 825 (N.H. 1980). |
N.H. Rev. Stat Ann. § 507:16 (2011) No punitive damages shall be awarded in any action, unless otherwise provided by statute. 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. |
|
New Mexico |
N.M. Stat. Ann. § 41-5-6 (2010) $600,000 total cap. Monetary damages shall not be awarded for future medical expenses in malpractice claims. |
N.M. Stat. Ann. § 41-5-6 (2010) Punitive damages and medical care and related benefits are not subject to the $600,000 cap. |
|
New York |
No statute found. |
No statute found |
|
North Carolina |
No statute found. |
N.C. Gen. Stat. § 1D-25 (2010) Greater of three times the amount of compensatory damages or $250,000. |
|
North Dakota |
N.D. Cent. Code § 32-42-02 (2011) Not to exceed $500,000 cap on noneconomic damages regardless the number of health care providers. |
N.D. Cent. Code § 32-03.2-11(4) (2011) Greater of two times compensatory damages or $250,000. |
|
Ohio |
Ohio Rev. Code Ann. § 2323.43 (2011) 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. |
Ohio Rev. Code Ann. § 2315.21 (2011) Punitive or exemplary damages in excess of two times the amount of the compensatory damages; Small employer or individual: lesser of two 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) $400,000.00, regardless of the number of parties against whom the action is brought or the number of actions brought. No limit on noneconomic damages arising from a claimed bodily injury resulting from professional negligence against a physician if the judge and jury finds, by clear and convincing evidence, that: |
Okla. Stat. tit., 23, § 9.1 (2010) Where reckless disregard, greater of $100,000 or actual damages awarded. Where intentional and with malice, greatest of $500,000, twice actual damages awarded, or financial benefit derived by defendant. If court finds beyond a reasonable doubt that defendant engaged in conduct life-threatening to humans, then no cap. |
|
Oregon |
Or. Rev. Stat. § 31.710 (2010) Not to exceed $500,000. This provision held unconstitutional where damages are recoverable under common law. Lakin v. Senko Products, Inc., 987 P.2d 463 (Ore. 1999). |
Or. Rev. Stat. § 31.740 (2010) Prohibited against specified health practitioners. |
|
Pennsylvania |
Pa. Const. Art. 3, § 18 (2010) The General Assembly may enact laws requiring the payment by employers, or employers and employees jointly, of reasonable compensation for injuries to employees arising in the course of their employment, and for occupational diseases of employees, whether or not such injuries or 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. |
40 Pa. Cons. Stat. § 1303.505(d) (2010) Except in cases alleging intentional misconduct, punitive damages against an individual physician shall not exceed 200% of the compensatory damages awarded. Punitive damages, when awarded, shall not less than $100,000 unless a lower verdict amount is returned by the trier of fact. |
|
Rhode Island |
No statute found. |
No statute found. |
|
South Carolina |
S.C. Code Ann. § 15-32-220 (2010) A single health care provider or a single health care institution: $350,000 for each claimant, regardless of the number of separate causes of action. 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 all 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. |
S.C. Code Ann. § 15-32-220 (2010) This section does not limit the amount of punitive damages in cases where the plaintiff is able to prove an entitlement to an award of punitive damages as required by law. |
|
South Dakota |
S.D. Codified Laws § 21-3-11 (2011) The total general damages which may be awarded may not exceed the sum of five hundred thousand dollars. There is no limitation on the amount of special damages which may be awarded. |
No statute found. |
|
Tennessee |
No statute found. |
No statute found. |
|
Texas |
Tex. Civ. Prac. & Rem. §§ 74.301, 302 (2010) $250,000 per claimant against a physician or health care provider and $250,000 per claimant against a health care institution. If more than one health care institution is liable, cap against them all is $500,000 per claimant. Tex. Civ. Prac. & Rem. § 74.303 (2010) In a wrongful death or survival action on a health care liability claim where final judgment is rendered against a physician or health care provider, the limit of civil liability for all damages, including exemplary damages, shall be limited to an amount not to exceed $500,000 for each claimant, regardless of the number of defendant physicians or health care providers against whom the claim is asserted or the number of separate causes of action on which the claim is based, subject to increase or decrease in accordance with consumer price index. |
Tex. Civ. Prac. & Rem. § 41.008 (2010) Greater of (1) two times the amount of economic damages plus the amount of noneconomic damages up to $750,000; or (2) $200,000. Tex. Civ. Prac. & Rem. § 74.303 (2010) In a wrongful death or survival action on a health care liability claim where final judgment is rendered against a physician or health care provider, the limit of civil liability for all damages, including exemplary damages, shall be limited to an amount not to exceed $500,000 for each claimant, regardless of the number of defendant physicians or health care providers against whom the claim is asserted or the number of separate causes of action on which the claim is based, subject to increase or decrease in accordance with consumer price index. |
|
Utah |
Utah Code Ann. § 78B-3-410 (2011) (1)(a) for a cause of action arising before July 1, 2001, $250,000; (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. |
Utah Code Ann. § 78B-3-410 (2011) The limitations provided in this section do not apply to punitive damages. |
|
Vermont |
No statute found. |
No statute found. |
|
Virginia |
Va. Code Ann. § 8.01-581.15 (2011) $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. The July 1, 2008, increase shall be the final annual increase. |
Va. Code Ann. § 8.01-38.1 (2011) Not to exceed $350,000 cap. |
|
Washington |
Wash. Rev. Code Ann. § 4.56.250 (2011) 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). |
Punitive damages prohibited at common law. |
|
West Virginia |
W. Va. Code Ann. § 55-7B-8 (2011) $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. |
No statute found. |
|
Wisconsin |
Wis. Stat. §§ 655.017, 893.55(4)(d)(1) (2010) $750,000 for each occurrence under on or after April 6, 2006. A $350,000 cap was held unconstitutional in Ferdon ex rel. Petrucelli v. Wisconsin Patients Compensation Fund, 701 N.W.2d 440 (2005). |
Wis. Stat. § 895.043(6) (2011)- 2011 Wis. Act 2, enacted on 1/27/2011 Not to exceed twice the amount of any compensatory damages recovered by the plaintiff or $ 200,000, whichever is greater. |
|
Wyoming |
Wyo. Const. Art. 10, § 4 (2011) No law shall be enacted limiting the amount of damages to be recovered for causing the injury or death of any person. |
Wyo. Const. Art. 10, § 4 (2011) No law shall be enacted limiting the amount of damages to be recovered for causing the injury or death of any person. |
Table A-3 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.54
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.
Table A-3. Punitive Damages—Burden of Proof, Standard, and Separate Proceeding
|
State and Citation |
Burden of Proof |
Standard |
Separate Proceeding |
|
Alabama |
Ala. Code § 6-11-20 (2011) Clear and convincing evidence. |
Ala. Code § 6-11-20 (2011) "[T]he defendant consciously or deliberately engaged in oppression, fraud, wantonness, or malice." |
Ala. Code § 6-11-23 (2011) Available. |
|
Alaska |
Alaska Stat. § 09.17.020 (2011) Clear and convincing evidence. |
Alaska Stat. § 09.17.020 (2011) "[D]efendant's conduct (1) was outrageous, including acts done with malice or bad motives; or (2) evidenced reckless indifference to the interest of another person." |
Alaska Stat. § 09.17.020 (2011) Mandatory. |
|
Arizona |
Clear and convincing evidence. Linthicum v. Nationwide Life Ins. Co., 723 P.2d 675, 681 (1986). |
Defendant engaged in "reprehensible conduct" and acted "with an evil mind." Linthicum v. Nationwide Life Ins. Co., 723 P.2d 675, 680 (1986). |
N/A. |
|
Arkansas |
Ark. Code Ann. § 16-55-207 (2010) Clear and convincing evidence. |
Ark. Code Ann. § 16-55-206 (2010) "[D]efendant knew or ought to have known ... that his or her conduct 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 intentionally pursued a course of conduct for the purpose of causing injury or damages." |
Ark. Code Ann. § 16-55-211 (2010) Available. |
|
California |
Cal. Civ. Code § 3294 (2010) Clear and convincing evidence. |
Cal. Civ. Code § 3294 (2010) "[O]ppression, fraud, or malice." |
N/A.
|
|
Colorado |
Colo. Rev. Stat. §13-25-127(2) (2010) Beyond a reasonable doubt. |
Colo. Rev. Stat. § 13-21-102 (2010) "[F]raud, malice, or willful and wanton conduct." |
N/A. |
|
Connecticut |
Preponderance of the evidence. Freeman v. Alamo Management Co., 607 A.2d 370, 373 (Conn. 1992). |
"{A] reckless indifference to the rights of others or an intentional and wanton violation of those rights." Sorrentino v. All Seasons Servs., 717 A.2d 150, 161 (Conn. 1998). |
N/A. |
|
Delaware |
Undefined, but likely preponderance of the evidence. |
Del. Code Ann. tit. 18, § 6855 (2011) "[I]njury complained of was maliciously intended or was the result of wilful or wanton misconduct by the health care provider." |
N/A. |
|
District of Columbia |
Clear and convincing evidence. Croley v. Republican Nat'l Comm., 759 A.2d 682, 695 (D.C. 2000). |
"[E]gregious conduct." Railan v. Katyal, 766 A.2d 998, 1012 (D.C. 2001). "[M]alice or its equivalent." Croley v. Republican Nat'l Comm., 759 A.2d 682, 695 (D.C. 2000). |
N/A. |
|
Florida |
Fla. Stat. Ann. § 768.72(2) (2011) Clear and convincing evidence. |
Fla. Stat. Ann. § 768.72(2)(2011) "[I]ntentional misconduct or gross negligence." |
N/A. |
|
Georgia |
Ga. Code Ann. § 51-12-5.1(b) (2011) Clear and convincing evidence. |
Ga. Code Ann. § 51-12-5.1(b) (2011) "[W]illful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences." |
Ga. Code Ann. § 51-12-5.1(d)(2) (2011) Mandatory. |
|
Hawaii |
Clear and convincing evidence. Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 839 P.2d 10, 37 (1992) |
"[D]efendant has acted wantonly or oppressively or with such malice as implies a spirit of mischief or criminal indifference to civil obligations, 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) |
N/A. |
|
Idaho |
Idaho Code Ann. § 6-1604 (2011) Clear and convincing evidence. |
Idaho Code Ann. § 6-1604(2011) "[O]ppressive, fraudulent, malicious or outrageous conduct." |
N/A. |
|
Illinois |
735 Ill. Comp. Stat. Ann. 5/2-1115 (2011) Punitive damages prohibited in medical malpractice cases. |
||
|
Indiana |
Ind. Code Ann. § 34-51-3-2 (2011) Clear and convincing evidence. |
"[A]ct[ing] with malice, fraud, gross negligence, or oppressiveness which was not the result of a mistake of fact 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). |
N/A. |
|
Iowa |
Iowa Code Ann. § 668A.1 (2010) "[P]reponderance of clear, convincing, and satisfactory evidence." |
Iowa Code Ann. § 668A.1 (2010) "[W]illful and wanton disregard for the rights or safety of another." |
N/A. |
|
Kansas |
Kan. Stat. Ann. § 60-3701 (2009) Clear and convincing evidence. |
Kan. Stat. Ann. § 60-3701 (2009) "[W]illful conduct, wanton conduct, fraud or malice." |
Kan. Stat. Ann. § 60-3701 (2009) Mandatory. |
|
Kentucky |
Ky. Rev. Stat. Ann. § 411.184 (2010) Clear and convincing evidence. |
Ky. Rev. Stat. Ann. § 411.184 (2010) "[O]ppression, fraud or malice." |
N/A. |
|
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). |
||
|
Maine |
Clear and convincing evidence. St. Francis de Sales Federal Credit Union v. Sun Insurance Company of New York, 818 A.2d 995, 1001 (Me. 2002, revised 2003). |
Malice, either express (where the defendant "is motivated by ill will toward the plaintiff"), or implied (defendant's conduct "is so outrageous that malice toward a person injured as a result of that conduct can be 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). |
N/A |
|
Maryland |
Clear and convincing evidence. Owens-Illinois, Inc. v. Zenobia, 601 A.2d 633, 657 (Md. 1992). |
"[E]vil motive, intent to injure, ill will, or fraud." Owens-Illinois, Inc. v. Zenobia, 601 A.2d 633, 652 (Md. 1992). |
N/A. |
|
Massachusetts |
Mass. Ann. Laws, ch. 229, § 2 (2010) Preponderance of the evidence in wrongful death cases. But, punitive damages for medical malpractice otherwise prohibited. |
Mass. Ann. Laws, ch. 229, § 2 (2010) In wrongful death cases, "malicious, willful, wanton or reckless conduct ... or gross negligence." But, punitive damages for medical malpractice otherwise prohibited. |
N/A. |
|
Michigan |
Undefined, but likely preponderance of the evidence. |
Conduct that "inspires feelings of humiliation, outrage and 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). |
N/A. |
|
Minnesota |
Minn. Stat. Ann. § 549.20 (2010) Clear and convincing evidence. |
Minn. Stat. Ann. § 549.20 (2010) "[D]eliberate disregard for the rights or safety of others." |
Minn. Stat. Ann. § 549.20 (2010) Mandatory. |
|
Mississippi |
Miss. Code Ann. § 11-1-65(1)(a)(2010) Clear and convincing evidence. |
Miss. Code Ann. § 11-1-65(1)(a)(2010) "[A]ctual malice, gross negligence which evidences a willful, wanton or reckless disregard for the safety of others, or committed actual fraud." |
Miss. Code Ann. § 11-1-65(1)(e)(2010) Mandatory. |
|
Missouri |
Clear and convincing evidence. Rodriguez v. Suzuki Motor Corp., 936 S.W.2d 104, 111 (Mo. 1996). |
Mo. Rev. Stat. § 538.210.5 (2011) For medical malpractice actions, "willful, wanton, or malicious misconduct." § 538.210.5 (2010). |
Mo. Rev. Stat. § 510.263 (2011) Available. |
|
Montana |
Mont. Code Ann. § 27-1-221 (2010) Clear and convincing evidence. |
Mont. Code Ann. § 27-1-221 (2010) "[A]ctual fraud or actual malice." |
Mont. Code Ann. § 27-1-221 (2010) Mandatory. |
|
Nebraska |
Punitive damages prohibited. Miller v. Kingsley, 230 N.W.2d 472, 474 (Neb. 1975). |
||
|
Nevada |
Nev. Rev. Stat. Ann. § 42.005 (2010) Clear and convincing evidence. |
Nev. Rev. Stat. Ann. § 42.005 (2010) "[O]ppression, fraud or malice, express or implied." |
Nev. Rev. Stat. Ann. § 42.005 (2010) Mandatory. |
|
New Hampshire |
N.H. Rev. Stat. Ann. § 507:16 (2011) Punitive damages prohibited. |
||
|
New Jersey |
N.J. Rev. Stat. § 2A:15-5.12 (2011) Clear and convincing evidence. |
N.J. Rev. Stat. § 2A:15-5.12 (2011) "[A]ctuated by actual malice or accompanied by a wanton and willful disregard of persons who foreseeably might be harmed." |
N/A. |
|
New Mexico |
Preponderance of the evidence. United Nuclear Corp. v. Allendale Mut. Ins. Co., 709 P.2d 649, 654 (N.M. 1985). |
"[M]alicious, fraudulent, oppressive, or committed recklessly with a wanton disregard for the plaintiff's rights." Albuquerque Concrete Coring Co., Inc. v. Pan Am World Services, Inc., 879 P.2d 772, 775 (1994). |
N/A. |
|
New York |
Undefined, but likely preponderance of the evidence. |
"[I]ntentional or deliberate wrongdoing, aggravating or outrageous circumstances, fraudulent or evil motive, or conscious act in willful and wanton disregard of another's rights" Pearlman v. Friedman, Alpern & Green, LLP, 750 N.Y.S.2d 869 (2002). |
Recommended. Rupert v. Sellers, 368 N.Y.S.2d 904, 912 (N.Y. App. Div. 1975) |
|
North Carolina |
N.C. Gen. Stat. § 1D-15 (2010) Clear and convincing evidence. |
N.C. Gen. Stat. § 1D-15 (2010) "(1) Fraud. (2) Malice. (3) Willful or wanton conduct." |
N.C. Gen. Stat. § 1D-30 (2010) Available. |
|
North Dakota |
N.D. Cent. Code § 32-03.2-11 (2011) Clear and convincing evidence. |
N.D. Cent. Code § 32-03.2-11 (2011) "[O]ppression, fraud, or actual malice." |
N.D. Cent. Code § 32-03.2-11 (2011) Available. |
|
Ohio |
Ohio Rev. Code Ann. § 2315.21 (2011) Clear and convincing evidence. |
Ohio Rev. Code Ann. § 2315.21 (2011) "[M]alice or aggravated or egregious fraud." |
Mandatory. Ohio Rev. Code Ann. § 2315.21 (2011), overruled by Havel v. Villa St. Joseph, No. 94677, (Ohio Ct. App. Oct. 28, 2010). |
|
Oklahoma |
Okla. Stat. tit., 23, § 9.1 (2010) Clear and convincing evidence. |
Okla. Stat. tit., 23, § 9.1 (2010) Lower cap on punitive damages for "reckless disregard," but a higher cap for "intentionally and with malice toward others." |
N/A. |
|
Oregon |
Or. Rev. Stat. § 31.730 (2010) Clear and convincing evidence. |
Or. Rev. Stat. § 31.740 (2010) "Malice" for medical malpractice cases. |
N/A. |
|
Pennsylvania |
Preponderance of the evidence. DiSalle v. P.G. Pub. Co., 544 A.2d 1345, 1371 n. 24 (Pa. Super. Ct. 1988) (citing Martin v. Johns-Manville Corp., 494 A.2d 1088, 1098 (Pa. 1985)). |
40 Pa. Const. Stat. § 1303.505 (2010) "[W]illful or wanton conduct or reckless indifference to the rights of others."
|
N/A. |
|
Rhode Island |
Preponderance of the evidence |
"[E]vidence of such willfulness, recklessness, or wickedness, ... as amounts to criminality." Palmisano v. Toth, 624 A.2d, 314 (1993). |
N/A |
|
South Carolina |
S.C. Code Ann. § 15-33-135 (2010) Clear and convincing evidence. |
"[W]illful, wanton, or in reckless disregard of the plaintiff's rights." Mellen v. Lane, 377 S.C. 261 (2008). |
N/A |
|
South Dakota |
S.D. Codified Laws § 21-1-4.1 (2011) Before one can submit a claim for punitive damages, "the court shall find, after a hearing based upon clear and convincing evidence, that there is reasonable basis to believe that there has been willful, wanton, or malicious conduct on the part of the party claimed against." |
S.D. Codified Laws § 21-3-2 (2011) Preponderance of the evidence "[W]here defendant has been guilty of oppression, fraud, or malice, actual or presumed." See also Flockhart v. Wyant, 467 N.W.2d 473 (1991) (upheld trial court decision to instruct jury to decide an award of punitive damages based on the preponderance of the evidence standard). |
N/A. |
|
Tennessee |
Clear and convincing evidence. Hodges v. S.C. Toof & Co., 833 S.W.2d 896 (Tenn. 1992). |
"[I]ntentional, fraudulent, malicious, or reckless conduct." Hodges v. S.C. Toof & Co., 833 S.W.2d 896 (Tenn. 1992) |
Available. Hodges v. S.C. Toof & Co., 833 S.W.2d 896 (Tenn. 1992) ("[T]he court, upon motion of the defendant , shall bifurcate the trial."). |
|
Texas |
Tex. Civ. Prac. & Rem. § 41.003 (2010) Clear and convincing evidence. |
Tex. Civ. Prac. & Rem. § 41.003 (2010) "[D]amages result from: (1) fraud; (2) malice; or (3) wilful act or omission or gross neglect in wrongful death actions." |
Tex. Civ. Prac. & Rem. § 41.009 (2010) Available. |
|
Utah |
Utah Code Ann. § 78B-8-201 (2011). Clear and convincing evidence. |
Utah Code Ann. § 78B-8-201 (2011). "[W]illful and malicious or intentionally fraudulent conduct, or conduct that manifests a knowing and reckless indifference toward, and a disregard of, the rights of others." |
N/A. |
|
Vermont |
Undefined but likely preponderance of the evidence. McCormick v. McCormick, 621 A.2d 238 (Vt. 1993). |
"[C]onduct manifesting personal ill will, evidencing insult or oppression, or showing a reckless or wanton disregard of [a party's] rights." McCormick v. McCormick, 621 A.2d 238 (Vt. 1993). |
N/A. |
|
Virginia |
Undefined but likely preponderance of the evidence. Woods v. Mendez, 574 S.E.2d 263 (2003). |
"[D]efendant's conduct was willful or wanton. Willful and wanton negligence is action undertaken in conscious disregard of another's rights 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). |
N/A. |
|
Washington |
Punitive damages not allowed unless authorized by state legislature. Barr v. Interbay Citizens Bank, 635 P.2d 441 (1981). |
||
|
West Virginia |
Undefined, but likely preponderance of the evidence. TXO Prod. Corp. v. Alliance Resources Corp., 419 S.E.2d 870 (1992). |
"[N]ot only mean-spirited conduct, but also extremely negligent conduct that is likely to cause serious harm" TXO Prod. Corp. v. Alliance 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."). |
N/A. |
|
Wisconsin |
Unclear after re-codification of punitive damages statute, but likely clear and convincing evidence. See City of W. Allis v. Wisc. Elec. Power Co., 635 N.W.2d 873 (Wisc. App. 2001) ("Before the question of punitive damages can be submitted to a jury, the circuit court must determine ... that to a reasonable certainty the conduct was 'outrageous.' ... The evidence must also be 'clear and convincing.'"). |
Wis. Stat. § 895.043(3) (2010) "The plaintiff may receive punitive damages if evidence is submitted showing that the defendant acted maliciously toward the plaintiff or in an intentional disregard of the rights of the plaintiff." See also Groshek v. Trewin, 784 N.W.2d 163 (2010). |
N/A. |
|
Wyoming |
Preponderance of the evidence. |
"Outrageous conduct, malice, and willful and wanton misconduct" Alexander v. Meduna, 47 P.3d 206 (Wyo. 2002). |
N/A. |
Table A-4 sets forth the doctrine of joint and several liability and provisions for periodic payment for damages in the 50 states.
As discussed in "Limiting Joint and Several Liability," the doctrine of 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% liable. Any defendant who pays for more than its share of the damages is entitled to seek contribution from other liable defendants. In this 50-state survey of joint and several liability, we note whether the doctrine of joint and several liability applies in the state, whether there is some modified version, or whether the doctrine has been abolished and only several liability applies, making each defendant liable only for its share of responsibility for the plaintiff's injury.
How one characterizes a statute as modified joint and several liability or several liability will vary. In this table, we use the term "modified joint and several liability" to refer to instances where the statute tends to find defendants jointly and severally liable for certain types of damages but not others. For example, in Hawaii joint and several liability applies when recovering economic damages, but several liability applies when recovering noneconomic damages if a defendant's negligence is found to be more than 25% or more of the total fault.55 We use the term "modified joint and several liability" where joint and several liability is triggered once a defendant is found to be negligent by a certain percentage of fault or where joint, or where joint and several liability applies to recover certain damages but not others. For example, in Iowa the rule of joint and several liability does not apply to a defendant who is found to bear less than 50% of the total fault assigned to all parties, but the doctrine will apply where a defendant is found to bear more than 50% and only in the recovery for economic damages.56 The term "several liability" is used where statutes generally abolished joint and several liability, though in some instances joint and several liability still applies where the tort-feasors acted in concert or with intent to commit the tort. For example, in Idaho the doctrine of joint and several liability is abolished except where joint tort-feasors acted in concert or when a person was acting as an agent or servant of another party.57
As discussed in "Periodic Payment of Damages," damages are traditionally paid in lump sum, even if they are for future medical care of future lost wages. With respect to malpractice actions, some states mandate that courts, upon the request of a party, enter a judgment for periodic payment of future damages that exceed a certain amount. Most states have general provisions that govern structured settlements, which usually includes an award for damages in a tort suit. For example, Massachusetts ch. 231C, §§1 et seq. governs structured settlement contracts generally; in Hawaii, the Hawaii Revised Statutes §§ 676-1 et seq. is the state's Structured Settlement Protection Act; and in New Jersey, N.J. Stat. Ann. §§ 2A:16-63 et seq. governs structured settlements. These types of general structured settlement statutes are not captured in this table. Where "no statute found" is entered means that CRS could not locate a statute specific to medical malpractice actions on periodic payment.
Table A-4. State Provisions on Joint and Several Liability and Periodic Payment of Damages
|
State |
Joint and Several Liability |
Periodic Payment of Damages |
|
Alabama |
Joint and several liability. Where the actions of two or more tort-feasors combine to produce an indivisible injury, each tort-feasor's act is considered to be proximate cause of the injury, and each tort-feasor is jointly and severally liable for the entire injury and judgment. See General Motors Corp., v. Edwards, 482 So.2d 1176 (Ala. 1985). |
Ala. Code § 6-5-543 (2011) If the future damages assessed, is greater than $150,000, the court shall require payment of future damages by periodic payments. Held unconstitutional. Lloyd Noland Hosp. v. Durham, 906 So.2d 157 (Ala. 2005). |
|
Alaska |
Alaska Stat. § 9.17.080 (2011) Several liability. The court shall enter judgment against each party on the basis of several liability in accordance with that party's percentage of fault. |
Alaska Stat. § 9.55.548(a) (2011) The court may enter a judgment that future damages be paid in whole or in part by periodic payments rather than by lump-sum payment . Alaska Stat. § 9.17.040 (2011) At the request of an injured party, the court shall enter judgment ordering that amounts awarded a judgment creditor for future damages be paid to the maximum extent feasibly by periodic payments rather than lump-sum payment. |
|
Arizona |
Ariz. Rev. Stat. § 12-2506 (2011) Several liability. The liability of each defendant for damages is several only and is not joint, except as for otherwise provided. |
Ariz. Rev. Stat. § 12-581 et seq (2011) Any party may elect to receive or pay future damages for economic loss in periodic installments. Held unconstitutional. Smith v. Meyers, 887 P.2d 541 (Ariz. 1994). |
|
Arkansas |
Ark. Code Ann. § 16-55-201 (2010) Several liability. In action for personal injury, medical injury, the liability of each defendant for compensatory and punitive damages shall be several only and shall not be joint. |
Ark. Code Ann. § 16-114-208 (2010) If the future damages assessed is greater than $100,000, the court, at the request of either party, shall order the payment to be paid in whole or in part by periodic payments. |
|
California |
Cal. Civ. Code § 1431.2 (2010) Modified joint and several liability. The liability of each defendant for noneconomic damages shall be several only and not joint. Each defendant shall be liable in direct proportion to that defendant's percentage of fault. |
Cal. Civ. Code § 667.7 (2010) If the future damages assessed is greater than $50,000, a superior court, at the request of either party, shall enter a judgment ordering the payment to be paid in whole or in part by periodic payments. |
|
Colorado |
Colo. Rev. Stat. § 13-21-111.5 (2010) Modified joint and several liability. No defendant shall be liable for an amount greater than that represented by the degree or percentage of the negligence or fault attributable to such defendant that produced the claimed injury, death, damage, or loss, except where two or more defendants consciously conspire and deliberately pursue a common plan or design to commit a tortious act. |
Colo. Rev. Stat. § 13-64-203 (2010) If the award for future damages is greater than $150,000, the trial judge shall enter a judgment ordering payment by periodic payments. If the award for future damages is less than $150,000, the trial judge may order that such awards be paid by periodic payments. |
|
Connecticut |
Conn. Gen. Stat. § 52-572h (2010) Modified joint and several liability. Each party against whom recovery is allowed shall be liable to the claimant only for such party's proportionate share of the recoverable damages, with exception. |
Conn. Gen. Stat. § 52-225d (2010) If the amount of economic damages exceeds $200,000, the court must afford the parties 60 days to negotiate to agree to a periodic payment of damages. |
|
Delaware |
Del. Code Ann. tit. 10, § 6301 (2011) Joint and several liability. |
Del. Code Ann. tit 18, § 6864 (2011) The court may fix payment of damages in periodic installments. |
|
District of Columbia |
No statute found. |
No statute found. |
|
Florida |
Fla. Stat. Ann. § 768.81 (2011) Several liability. The court shall enter judgment against each party on the basis of such party's percentage of fault and not on the basis of joint and several liability. |
Fla. Stat. Ann. § 768.78 (2011) If an award of future economic losses exceeds $250,000, the court shall, at the request of either party, enter a judgment ordering payment in whole or in part by periodic payments. |
|
Georgia |
Ga. Code Ann. § 51-12-33 (2011) Several liability. For claims after February 2005, damages apportioned shall be for liability of each person against each person whom they area awarded, shall not be a joint liability among the persons liable, and shall not be subject to any right of contribution. |
Ga. Code Ann. § 51-13-1(f) (2011) If an award for future damages is greater than $350,000, the trial court shall, upon the request of either party, issue an order providing that such damages be paid in periodic payments. |
|
Hawaii |
Haw. Rev. Stat. Ann. § 663-10.9 (2011) Modified joint and several liability. For economic damages, joint and several liability applies in actions involving injury or death. For noneconomic damages, Joint and several liability for applies where joint tort-feasor's negligence is found to be 25% or more, in actions involving injury or death. |
No statute found. |
|
Idaho |
Idaho Code Ann. § 6-803 (2011) Several liability. Doctrine of joint and several liability generally abolished except where joint tort-feasors are acting in concert or when a person was acting as an agent or servant of another party. |
Idaho Code Ann. § 6-1602 (2011) If the award for future damages exceeds $100,000, the court, at the request of either party, may enter a judgment providing for the periodic payment of such damages. |
|
Illinois |
735 Ill. Comp. Stat. Ann. 5/2-1118 (2011) Joint and several liability. Defendants in any medical malpractice action based upon negligence are jointly and severally liable for all damages. |
735 Ill. Comp. Stat. Ann. 5/2-1705 (2011) A party may seek periodic payment of future damages if the amount is in excess of $250,000 and it can show certain requirements. |
|
Indiana |
Ind. Code Ann. § 34-51-2-1 (2011) Doctrine of joint and several liability seems to apply to medical malpractice actions, as these are not covered by the statute on comparative fault. |
Ind. Code Ann. §§ 34-18-14-1 et seq; 34-18-15-1 et seq (2011) Sections provide for method of periodic payment in exchange for discharge from liability. |
|
Iowa |
Iowa Code Ann. § 668.4 (2010) Modified joint and several liability. The rule of joint and several liability shall not apply to defendants who are found to bear less than 50% of the total fault assigned to all parties. A defendant found to bear more than 50% shall only be jointly and severally liable for economic damages and not for any noneconomic damages. |
No statute found. |
|
Kansas |
Kan. Stat. Ann. § 60-258a (2009) Several liability. The concept of joint and several liability no longer applies in comparative negligence actions. The individual liability of each defendant for payment of damages is to be based on proportionate fault, and contribution among joint judgment debtors is no longer to be required in such cases. See Brown v. Kelli, 580 P.2d 867 (Kan. 1978). |
Kan. Stat. Ann. § 60-2609 (2009) The court may include in its judgment a requirement that damages awarded be paid in whole or in part by installment or periodic payment. |
|
Kentucky |
Ky. Rev. Stat. Ann. § 304.40-290 (2010) Several liability. In action for medical malpractice, the jury shall be instructed that it may apportion damages in different percentages against the defendants or it may return a verdict of joint and several liability against two or more defendants. Generally joint and several liability abolished. Ky. Rev. Stat. Ann. § 411.182; See Radcliff Homes Inc. v. Jackson, 766 S.W.2d 63 (Ky. Ct. App. 1989). |
No statute found. |
|
Louisiana |
La. Civ. Code Ann. art. 2324 (2011) Several liability. A joint tort-feasor shall not be liable for more than his degree of fault and shall not be solidarily liable with any other person for damages attributable to the fault of such other person. |
La. Rev. Stat. Ann. § 40:1299.43 (2011) If the patient is in need of future medical care, the amount of future medical care that will be incurred after a certain date will be paid, as incurred, from the patient's compensation fund. |
|
Maine |
Me. Rev. Stat. Ann. tit. 14, § 156 (2011) Joint and several liability. Each defendant is jointly and severally liable. However, any defendant has the right to request of the jury the percentage of fault contributed by each defendant. The defendant may be released by the plaintiff under which the plaintiff is precluded from collecting against the remaining parties that portion of the damages attributable to the released defendant. |
Me. Rev. Stat. Ann. tit. 24, § 2451 (2011) If an award for future damages exceeds $250,000, the court, at the request of either party, enter a judgment ordering for periodic payment of future damages. |
|
Maryland |
Md. Code Ann., Cts. & Jud. Proc. § 3-1403 (2011) Joint and several liability. The recovery of a judgment against one joint does not discharge the other joint tort-feasor. |
Md. Code Ann., Cts. & Jud. Proc. § 11-109 (2011) The court may order that all or part of future economic damages be paid in periodic installments consistent with the need of the plaintiff. |
|
Massachusetts |
Mass. Ann. Laws, ch. 231B, § 1 (2010) Joint and several liability. Language of this section providing that when two or more persons become jointly and severally liable in tort for the same injury to person, there shall be a right of contribution among them that requires that potential contributor be directly liable to plaintiff. See Liberty Mut. Ins. Co. v. Westerlind, 373 N.E.2d 957 (Mass. 1978). |
No statute found. |
|
Michigan |
Mich. Comp. Laws. Serv. § 600.6304(5) (2011) Modified joint and several liability. If the plaintiff is determined to have no fault in an action for medical malpractice, the liability of each defendant is joint and several. If the plaintiff is determined to have a percentage of fault, the court shall determine whether all or a part of a party's share of the obligations is uncollectible from that party, and shall reallocate any uncollectible amount among the other parties. The party whose liability is reallocated continues to be subject to contribution and to any continuing liability to the plaintiff on judgment. |
Mich. Comp. Laws. Serv. §§ 600.6307, 600.6309 (2011) If a judgment of future damages exceeds $250,000, the court shall enter an order that the defendant shall satisfy the amount of the judgment by the purchase of an annuity contract. If the plaintiff and defendant agree to a plan for the structured payment of future damages within 35 days of the judgment, the court shall order that payments be made pursuant to that plan. |
|
Minnesota |
Minn. Stat. Ann. § 604.02 (2010) Modified joint and several liability. When two or more persons are severally liable, contributions to awards shall be in proportion to the percentage of fault attributable to each, except the following people shall be jointly and severally liable for the whole award: a person whose fault is greater than 50%; two or more persons who act in a common scheme or plan that result in injury. |
Minn. Stat. Ann. § 549.25 (2010) If a claimant is awarded future damages in excess of $100,000, the court shall hold a hearing to allow claimant to determine if payment over time would be in best interest of claimant. Claimant may inform court that he does not wish to enter a structured settlement. |
|
Mississippi |
Miss. Code Ann. § 85-5-7 (2010) Several liability. The liability for two or more defendants shall be several only, and not joint and several, and a joint tort-feasor shall be liable only for the amount of damages allocated to him in direct proportion to his percentage of fault. |
No statute found. |
|
Missouri |
Mo. Rev. Stat. § 537.067 (2011) Modified joint and several liability. If a defendant is found to bear 51% or more of the fault, defendant shall be jointly and severally liable for the amount of damages rendered against the other defendants. If a defendant is found to bear less than 51% of the fault, then defendant shall be responsible only for his percentage of fault. |
Mo. Rev. Stat. § 538.220 (2011) Past damages are payable in a lump sum. But if the total award of damages exceeds $100,000, the court, upon the request of any party, shall include in the judgment a requirement that future damages be paid in whole or in part in periodic installments. |
|
Montana |
Mont. Code Ann. §§ 27-1-703; 27-1-705 (2010) Modified joint and several liability. In an action brought as a result of death or injury to a person, the liability of a defendant is several only and not joint A party's whose negligence is determined to be 50% or less of the combined negligence is severally liable unless acting in concert or as an agent of another. The remaining parties are jointly and severally liable for the total less the percentage attributable to claimant and to any person with whom the claimant has already settled or released from liability. |
Mont. Code Ann. § 25-9-412 (2010) If an award of $50,000 or more is made in an action for medical malpractice, a party may request the court to enter a judgment ordering future damages to be paid in whole or in part by periodic payment rather than lump sum payment. |
|
Nebraska |
Neb. Rev. Stat. Ann. § 25-21,185.10 (2010) Modified joint and several liability. Except when part of a common enterprise or plan, the liability for each defendant for economic damages shall be joint and several and the liability for each defendant for noneconomic damages shall be several only and not joint. |
No statute found. |
|
Nevada |
Nev. Rev. Stat. Ann. § 41A.045 (2010) Several liability. In an action against a health care provider based upon professional negligence, each defendant is liable to the plaintiff for economic and noneconomic damages severally only and not jointly, for their percentage of fault. |
Nev. Rev. Stat. Ann. § 42.021 (2010) If an award for future damages exceeds $50,000, a court shall, at the request of either party, enter a judgment ordering that money damages or its equivalent for future damages be paid in whole or in part by periodic payments rather than a lump sum payment. |
|
New Hampshire |
N.H. Rev. Stat Ann. § 507:7-e (2011) Modified joint and several liability. Damages shall be awarded to each defendant in accordance with proportion of fault, and each party shall be jointly and severally liable, except if any party shall be less than 50% at fault, then that party's liability shall be several and not joint. |
No statute found. |
|
New Jersey |
N.J. Rev. Stat. § 2A:15-5.3 (2011) Modified joint and several liability. If a defendant is determined to be 60% or more responsible for the total damages, the claimant may recover the full amount of damages from such party. If a defendant is determined to be less than 60% responsible, the claimant may recover only such amount that directly attributable to that defendant. |
No statute found. |
|
New Mexico |
N.M. Stat. Ann. § 41-3A-1 (2010) Several liability. In any cause of action to which the doctrine of comparative fault applies, the doctrine imposing joint and several liability upon two or more wrongdoers is abolished except as otherwise provided. The defendants shall be several. |
N.M. Stat. Ann. § 41-5-7 (2010) if a judgment is made that patient is in need of future medical expenses, such payment for those expenses shall be made as expenses are incurred. |
|
New York |
N.Y. C.P.L.R. § 1601 (2011) Modified joint and several liability. New York statutory scheme governing limited liability of persons jointly liable modifies the common law rule of joint and several liability by limiting tort-feasor's liability in certain circumstances. See Rangolan v. County of Nassau, 749 N.E.2d 178 (N.Y. 2001). |
N.Y. C.P.L.R. § 5031 (2011) In any award of damages for future pain and suffering in excess of $500,000, the court shall determine the greater of 35% of such damages or $500,000 and such amount shall be paid in a lump sum. The remaining amount of the award for future damages for future pain and suffering, shall be paid in a stream of payments over time over the period determined by trier of fact or eight years, whichever is less. |
|
North Carolina |
N.C. Gen. Stat. § 1B-1(2010) Joint and several liability. Except as otherwise provided, where two or more persons become jointly or severally liable in tort for the same injury to a person or for the same wrongful death, there is a right of contribution among them. |
No statute found. |
|
North Dakota |
N.D. Cent. Code § 32-03.2-02 (2011) Several liability. When two or more parties are found to have contributed to the injury, the liability of each person is several only, and is not joint, and each party is liable only for the amount of damages attributable to that percentage of fault of that party. |
N.D. Cent. Code § 32-03.2-09 (2011) If an injured party claims future economic damages for continuing institutional or custodial care that will be required for a period of more than two years, then any party may make periodic payments for this care if the court directs the trier of fact, upon request of a party, to make a special finding for this amount, separate from other future economic damages. |
|
Ohio |
Ohio Rev. Code Ann. § 2307.22 (2011) Modified joint and several liability. If more than 50% of the tortious conduct is attributable to one defendant, that defendant shall be jointly and severally liable in tort for all compensatory damages that represent economic loss. If less than 50% of the tortious conduct is attributable to a defendant, that defendant shall be liable only to the plaintiff only for that defendant's proportionate share of compensatory damages that represent economic loss. |
Ohio Rev. Code Ann. § 2323.55 (2011) The court shall determine, in its discretion, whether all or part of future damages recoverable by plaintiff shall be received by plaintiff in a series of periodic payments rather than in a lump sum. If a court determines that plaintiff shall receive future damages in a series of periodic payments, it may order the payments only as to the amounts of future damages that exceed $50,000. |
|
Oklahoma |
Okla. Stat. tit., 23, § 15 (2010) Modified joint and several liability. The liability for damages cause by two or more persons shall be several only in proportion to their fault, except that a defendant shall be jointly and severally liable for damages if the percentage of responsibility attributed to the defendant is greater than 50%. |
No statute found. |
|
Oregon |
Or. Rev. Stat. § 31.610 (2009) Several liability. In any civil action arising out of bodily injury, death or property damage, the liability of each defendant to plaintiff shall be several only and shall not be joint. |
No statute found. |
|
Pennsylvania |
42 Pa. Cons. Stat. § 7102 (2010) Joint and several liability. The doctrine of joint and several liability applies against all defendants whom plaintiff is not barred from recovery. |
40 Pa. Cons. Stat. § 1303.509 (2010) Future damage for medical and other related expenses shall be paid as periodic payments except if claimant objects and stipulates that the total amount of future damages, without reduction to the present value, does not exceed $100,000, payment of such damages shall not be made in periodic installments. |
|
Rhode Island |
R.I. Gen. Laws § 10-6-2 (2010) Joint and several liability. "Joint tortfeasors" means two or more persons jointly or severally liable in tort for the same injury to person or property whether or not judgment has been recovered against some or all of them. |
R.I. Gen. Laws § 9-21-13 (2010) In any action to recover for personal injury in which damages, if liability is proved, are likely to exceed $150,000 the parties shall consider the use of periodic payments as a means of settlement. |
|
South Carolina |
S.C. Code Ann. §§ 15-38-15; 15-38-20 (2010) Modified joint and several liability. If indivisible damages are determined to be proximately caused by more than one defendant, joint and several liability to any defendant whose conduct is determined to be less than 50% of the total conduct. where two or more people become jointly or severally liable in tort for the same injury, there is a right of contribution among them. The right of contribution exists only in favor of a tort-feasor who has paid more than his pro rata share of the common liability. |
No statute found. |
|
South Dakota |
S.D. Codified Laws § 15-8-15.1 (2011) Modified joint and several liability. If court enters judgment on basis of joint and several liability, any party who is allocated less than 50% of the total fault allocated to all parties may not be jointly liable for more than twice his percentage of the fault. Otherwise, the right of contribution exists among joint-tortfeasors. |
S.D. Codified Laws § 21-3A-1 et seq (2011) Provides for periodic payments of only for claims against a physician, surgeon, dentist, hospital, sanitarium, registered nurse, licensed practical nurse, chiropractor or other practitioner of healing arts for malpractice error, mistake, or failure to cure. |
|
Tennessee |
Tenn. Code Ann. § 29-11-101 (2011) Several liability. See McIntyre v. Ballentine, 833 S.W.2d 52 (Tenn 1992). |
No statute found. |
|
Texas |
Tex. Civ. Prac. & Rem. § 33.013 (2010) Modified joint and several liability. Each defendant is liable to claimant only for the percentage of fault apportioned to him, except that a defendant may be jointly and severally liable if the percentage of fault attributed to the defendant is greater than 50%. |
Tex. Civ. Prac. & Rem. § 74.503 (2010) If an award for future damages exceeds $100,000, the court shall, at the request of the defendant, order that medical, health care, or custodial services, or future damages in those respective areas be paid in whole or in part rather than by lump sum payment. |
|
Utah |
Utah Code Ann. § 78B-5-820 (2011) Several liability. The maximum amount for which a defendant may be liable to any person seeking recovery is that percentage or proportion of the damages equivalent to the percentage or proportion of fault attributed to that defendant. |
Utah Code Ann. § 78B-3-414 (2011) In any malpractice action against a health care provider, the court shall, at the request of any party, order that future damages which exceed or equal $100,000 be paid by periodic payments rather than lump sum payment. |
|
Vermont |
Vt. Stat. Ann. tit. 12, § 1036 (2011) Several liability. Where recovery is allowed against more than one defendant, each defendant shall be liable for that proportion of the total dollar amount awarded as damages in the ratio of the amount of his causal negligence to the amount of causal negligence attributed to all defendants against whom recovery is allowed |
No statute found. |
|
Virginia |
Va. Code Ann. § 8.01-443 (2011) Joint and several liability. The claimant may bring separate actions against all joint wrongdoers and proceed to judgment in each, or, if sued jointly, the claimant may proceed to judgment against them successively until judgment has been rendered against, or otherwise disposed of as to, all defendants, and no bar shall arise as to any of them by reason of a judgment against another, or others, until the judgment has been satisfied. |
No statute found. |
|
Washington |
Wash. Rev. Code Ann. § 4.22.070 (2011) Modified joint and several liability. The liability of each defendant shall be several only and shall not be joint except where the trier of fact determines that the claimant was not at fault, then such defendants shall be jointly and severally liable for the sum of their proportionate shares of the claimant's total damages. |
Wash. Rev. Code Ann. § 4.56.260 (2011) If an award of future damages is $100,000 or more, the court shall, at the request of a party, enter a judgment which provides for the periodic payment in whole or in part of the future economic damages. |
|
West Virginia |
W. Va. Code Ann. § 55-7B-9 (2011) Modified joint and several liability. If the trier of fact renders a verdict for the plaintiff, the court shall enter judgment of several, but not joint, liability against each defendant in accordance with the percentage of fault attributed to the defendant by the trier of fact. |
No statute found. |
|
Wisconsin |
Wis. Stat. § 895.045 (2010) Modified joint and several liability. The liability of each person found to be causally negligent whose percentage of causal negligence is les than 51% is limited to the percentage of total causal negligence attributed to that person. A person found to be causally negligent whose percentage of causal negligence is 51% or more shall be jointly and severally liable for the damages allowed. |
Wis. Stat. § 655.27 (2010) Regarding the Injured Patients and Families Compensation Fund, in the event the fund incurs liability for future payments exceeding $1,000,000 to any person under a single claim as a result of a settlement of judgment after May 25, 1995, the fund shall pay after deductions full medical expenses each year, plus an amount not to exceed $500,000 per year that will pay the remaining liability over the person's anticipated lifetime, or until the liability is paid in full. |
|
Wyoming |
Wyo. Stat. Ann. § 1-1-109 (2011) Several liability. Each defendant is liable only to the extent of the defendant's proportion of the total fault determined. |
No statute found. |
Table A-5 sets forth limits on attorneys' contingency fees in the 50 states. Most statutes have a sliding scale, which limits the amount an attorney can collect to a certain percentage of the award recovered. This table does include provisions that address how attorneys' fees are to be calculated in light of an award for damages or how they are to be considered by the court. For example, the states of Arizona, Kansas, and Washington each have a statutory provisions on how a court shall, upon the request of a party, review the reasonableness of attorneys' fees in a health care action. It mandates that the court take into consideration factors such as (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal services properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; and (5) the time limitations imposed by the client or by the circumstances.58 Another example is Alaska, which directs when an attorney's contingency fee is to be calculated when punitive damages are awarded.59 This table also does not capture provisions on attorneys' fees like that of North Dakota, which declares that "the amount of the agreement in civil actions must be left to the agreement, express or implied, of the parties."60 In states where only these types of statutory provisions were identified with respect to attorneys' fees, we have entered "no statute found."
Table A-5. State Limits on Attorneys' Contingency Fees
|
State |
Limits on Attorneys' Fees |
|
Alabama |
No statute found. |
|
Alaska |
No statute found. |
|
Arizona |
No statute found. |
|
Arkansas |
No statute found. |
|
California |
Cal. Bus. & Prof. Code § 6146 (2010) Attorneys Fee Agreement: Limitations in amount. |
|
Colorado |
No statute found. |
|
Connecticut |
Conn. Gen. Stat. § 52-251c (2010) Limitation on attorney contingency fees in personal injury, wrongful death and property damage actions. Waiver of limitation by claimant.
|
|
Delaware |
Del. Code Ann. tit. 18, § 06865 (2011) Compensation for Health Care Injuries: Limitation on attorney's fees. |
|
District of Columbia |
No statute found. |
|
Florida |
Fla. Const. Art. 1, § 26 (2011) Claimant's right to fair compensation. |
|
Georgia |
No statute found. |
|
Hawaii |
Haw. Rev. Stat. Ann. § 607-15.5 (2011) Attorneys' fees in tort actions. In all tort actions in which a judgment is entered by a court of competent jurisdiction, attorneys' fees for both the plaintiff and the defendant shall be limited to a reasonable amount as approved by the court having jurisdiction of the action. In any tort action in which a settlement is effected, the plaintiff or the defendant may request that the amount of their respective attorneys' fees be subject to approval of the court having jurisdiction of the action. |
|
Idaho |
Idaho Code Ann. § 12-120 (2011) Attorney's fees in civil actions. (4) In actions for personal injury, where the amount of plaintiff's claim for damages does not exceed twenty-five thousand dollars ($25,000), there shall be taxed and allowed to the claimant, as part of the costs of the action, a reasonable amount to be fixed by the court as attorney's fees. For the plaintiff to be awarded attorney's fees for the prosecution of the action, written demand for payment of the claim and a statement of claim must have been served on the defendant's insurer, if known, or if there is no known insurer, then on the defendant, not less than sixty (60) days before the commencement of the action; provided that no attorney's fees shall be allowed to the plaintiff if the court finds that the defendant tendered to the plaintiff, prior to the commencement of the action, an amount at least equal to 90% of the amount awarded to the plaintiff. |
|
Illinois |
735 Ill. Comp. Stat. Ann. 5/2-1114 (2011) Contingent fees for attorneys in medical malpractice actions. (a) In all medical malpractice actions the total contingent fee for plaintiff's attorney or attorneys shall not exceed the following amounts: |
|
Indiana |
Ind. Code Ann. § 34-18-18-1 (2011) Medical Malpractice: Limitation on plaintiff's attorney's fees. When a plaintiff is represented by an attorney in the prosecution of the plaintiff's claim, the plaintiff's attorney's fees from any award made from the patient's compensation fund may not exceed 15% of any recovery from the fund. |
|
Iowa |
Iowa Code Ann. § 147.138 (2010) Health Related Professions Malpractice: Contingent fee of attorney reviewed by court. In any action for personal injury or wrongful death against any physician and surgeon, osteopathic physician and surgeon, dentist, podiatric physician, optometrist, pharmacist, chiropractor or nurse licensed under this chapter or against any hospital licensed under chapter 135B, based upon the alleged negligence of the licensee in the practice of that profession or occupation, or upon the alleged negligence of the hospital in patient care, the court shall determine the reasonableness of any contingent fee arrangement between the plaintiff and the plaintiff's attorney. |
|
Kansas |
No statute found. |
|
Kentucky |
No statute found. |
|
Louisiana |
No statute found. |
|
Maine |
Me. Rev. Stat. tit. 24, § 2961 (2011) Maine Health Security Act: Contingent fees. 1. LIMITATION. In an action for professional negligence, the total contingent fee for the plaintiff's attorney or attorneys shall not exceed the following amounts, exclusive of litigation expenses: |
|
Maryland |
Md. Code Ann., Cts. & Jud. Proc. § 3-2A-07 (2011) Health Care Malpractice Claims: Award of Costs; Counsel fees. (a) Action maintained in bad faith.—If the arbitration panel finds that the conduct of any party in maintaining or defending any action is in bad faith or without substantial justification, the panel may require the offending party, the attorney advising the conduct, or both, to pay to the adverse party the costs of the proceeding and reasonable expenses, including reasonable attorney's fees, incurred by the adverse party in opposing it. A determination made under this subsection shall become part of the panel award and subject to judicial review. |
|
Massachusetts |
Mass. Ann. Laws, ch. 231, § 60I (2010) Pleading and Practice: Limitation on Attorney Fees. Attorney fees for services rendered on behalf of a claimant or defendant in a medical negligence case shall be fair and reasonable. An attorney representing a claimant may charge a client a contingency fee, which shall be subject to the rules and guidelines of the supreme judicial court. No contingent fee agreement, shall be enforced, and no attorney shall recover a fee thereunder, as a result of services rendered in an action against a provider of health care for malpractice, negligence, error, omission, mistake, or the unauthorized rendering of professional services if, at the time of judgment, the court determines that the amount of the recovery paid or to be paid to the plaintiff, after deduction of the attorney's reasonable expenses and disbursements for which the plaintiff is liable and the amount of the attorney's fee, is less than the total amount of the plaintiff's unpaid past and future medical expenses included in the recovery, unless the contingent attorney's fee: (a) is twenty per cent or less of the plaintiff's recovery; (b) is reduced to twenty per cent or less of the plaintiff's recovery; or (c) is reduced to a level which permits the plaintiff to be paid his unpaid past and future medical expenses included in the recovery. |
|
Michigan |
Mich. Ct. R 8.121 (2011) Contingent Fees in Claims or Actions for Personal Injury and Wrongful Death. |
|
Minnesota |
Minn. Stat. Ann. § 548.251 (2010) Judgments: Collateral Source Calculations. Subd. 4. Calculation of attorney fees. |
|
Mississippi |
No statute found. |
|
Missouri |
No statute found. |
|
Montana |
No statute found. |
|
Nebraska |
Neb. Rev. Stat. Ann. § 44-2834 (2010) Nebraska Hospital Medical Liability Act: Cause of action; attorney's fees; court costs; loss of earnings; when payable. |
|
Nevada |
Nev. Rev. Stat. Ann. § 7.095 (2010) Limitations on contingent fees for representation of persons in certain actions against providers of health care. |
|
New Hampshire |
N.H. Rev. Stat. Ann. § 508:4-e (2011) Attorneys' Fees for Services. N.H. Rev. Stat. Ann. § 507-C:8 (2011) Actions for Medical Injury: Contingent Fees. This provision § 507-C:8 declared unconstitutional See Carson v. Mauerer, 424 A.2d 825 (N.H. 1980). |
|
New Jersey |
N.J. Ct. R. § 1:21-7 (2011) Contingent Fees. (b) An attorney shall not enter into a contingent fee arrangement without first having advised the client of the right and afforded the client an opportunity to retain the attorney under an arrangement for compensation on the basis of the reasonable value of the services. (e) Paragraph (c) of this rule is intended to fix maximum permissible fees and does not preclude an attorney from entering into a contingent fee arrangement providing for, or from charging or collecting a contingent fee below such limits. In all cases contingent fees charged or collected must conform to RPC 1.5(a). |
|
New Mexico |
No statute found. |
|
New York |
N.Y. Jud. Law § 474-a (2011) Attorneys and Counselors: Contingent fees for attorneys in claims or actions for medical, dental or podiatric malpractice. 2. Notwithstanding any inconsistent judicial rule, a contingent fee in a medical, dental or podiatric malpractice action shall not exceed the amount of compensation provided for in the following schedule: |
|
North Carolina |
No statute found. |
|
North Dakota |
No statute found. |
|
Ohio |
Ohio Rev. Code Ann. § 2323.43 (2011) Medical Malpractice Actions: Limits on compensatory damages representing noneconomic loss. (F) (1) If pursuant to a contingency fee agreement between an attorney and a plaintiff in a civil action upon a medical claim, dental claim, optometric claim, or chiropractic claim, the amount of the attorney's fees exceed the applicable amount of the limits on compensatory damages for noneconomic loss as provided in division (A)(2) or (3) of this section, the attorney shall make an application in the probate court of the county in which the civil action was commenced or in which the settlement was entered. The application shall contain a statement of facts, including the amount to be allocated to the settlement of the claim, the amount of the settlement or judgment that represents the compensatory damages for economic loss and noneconomic loss, the relevant provision in the contingency fee agreement, and the dollar amount of the attorney's fees under the contingency fee agreement. The application shall include the proposed distribution of the amount of the judgment or settlement. |
|
Oklahoma |
Okla. Stat. tit. 5, § 7 (2010) Attorneys and Counselors: Contingent fee—Limitation on amount—Compromise or settlement—Effect on lien—Certain contracts void. |
|
Oregon |
Or. Rev. Stat. § 31.735 (2010) Tort Actions Damages: Distribution of punitive damages; notice to Department of Justice; order of application. |
|
Pennsylvania |
Limits declared unconstitutional in Heller v. Frankston, 475 A.2d 1291 (Pa. 1984). |
|
Rhode Island |
No statute found. |
|
South Carolina |
No statute found. |
|
South Dakota |
No statute found. |
|
Tennessee |
Tenn. Code Ann. § 29-26-120 (2011) Medical Malpractice: Attorneys' fees. Compensation for reasonable attorneys' fees in the event an employment contract exists between the claimant and claimant's attorney on a contingent fee arrangement shall be awarded to the claimant's attorney in a malpractice action in an amount to be determined by the court on the basis of time and effort devoted to the litigation by the claimant's attorney, complexity of the claim and other pertinent matters in connection therewith, not to exceed 33⅓ % of all damages awarded to the claimant. |
|
Texas |
No statute found. |
|
Utah |
Utah Code Ann. § 78B-3-411 (2011) Utah Health Care Malpractice Act: Limitation on attorney's contingency fee in malpractice action. |
|
Vermont |
No statute found. |
|
Virginia |
No statute found. |
|
Washington |
No statute found. |
|
West Virginia |
No statute found. |
|
Wisconsin |
Wis. Stat. § 655.013. (2010) Health Care Liability And Injured Patients And Families Compensation: Attorney fees. |
|
Wyoming |
Wyo. Contingent Fees Rule 5 (2011) Court review. |
Table A-6 sets forth the statute of limitations for medical malpractice actions and product liability actions in the 50 states. Generally, for each state, this table identifies first, the medical malpractice statute of limitations, and second, the product liability statute of limitations provision. Where no product-liability specific statute could be identified, we included the general statute of limitations on an action to recover damages for personal injury or the "catch-all" statute of limitations; e.g., the D.C. Code § 12-301 provides "for which a limitation is not otherwise specifically provided—3 years" and Delaware's statute of limitations governing "personal injuries" would govern an action for product liability. (See Del. Code Ann titl. 10, § 8119.)
Many states also have various exceptions for a medical malpractice or product liability-specific statute of limitations depending on the age or status of the plaintiff, the time or manner of discovery, and the nature of the injury. For example, states commonly provide an extended statute of limitations if the plaintiff is a minor or suffering from a mental disability. Arizona, for instance, provides that "if a person ... is at the time the cause of action accrues either under eighteen years of age or of unsound mind, the period of such disability shall not be deemed a portion of the period limited for commencement of the action. Such person shall have the same time after removal of the disability which is allowed to others." (Ariz. Rev. Stat. § 12-502 (2011).) California, like many other states, extends time limitations for an action for damages sustained during birth. (See, e.g., Cal. Civ. Proc. Code § 340.4 (2010).)61 Louisiana and New York have a special time limitation for an action based blood transfusions tainted with HIV or AIDS. (See La. Rev. Stat. § 9:5628.1 (2011)62 and N.Y. C.P.L.R. § 214-3 (2011).63) Many states, if not all, also have a statute of limitations on a specific product that is or was the subject of class action lawsuits. These include the Dalkon Shield Intrauterine Device (see Mass. Ann. Laws, ch. 260 § 2E (2010)) and breast implants (see Md. Code Ann., Cts. & Jud. Proc § 50116 (2011)). As these exceptions span a variety of areas across the 50 states, this table generally does not include these types of provisions, though the reader should be aware that many states have these special exceptions that may affect the general time limitations for certain actions.
Table A-6. Statute of Limitations for Medical Malpractice and Product Liability Actions
|
State |
Statute of Limitation |
|
Alabama |
Ala. Code § 6-5-482 (2011) Medical Liability Actions: Statute of limitations. Ala. Code § 6-5-502 (2011) Statute of limitations. |
|
Alaska |
Alaska Stat. § 09.10.070 (2011) Actions for torts, for injury to personal property, for certain statutory liabilities, and against peace officers and coroners to be brought in two years. Alaska Stat. § 09.10.055 (2011) Statute of repose of 10 years. |
|
Arizona |
Ariz. Rev. Stat. § 12-542 (2011) Personal Actions: Injury to person; injury when death ensues; injury to property; conversion of property; forcible entry and forcible detainer; two year limitation. Ariz. Rev. Stat. § 12-551 (2011) Product liability. Ariz. Rev. Stat. § 12-681 (2011) Definitions. 5. "Product liability action" means any action brought against a manufacturer or seller of a product for damages for bodily injury, death or property damage caused by or resulting from the manufacture, construction, design, formula, installation, preparation, assembly, testing, packaging, labeling, sale, use or consumption of any product, the failure to warn or protect against a danger or hazard in the use or misuse of the product or the failure to provide proper instructions for the use or consumption of any product. |
|
Arkansas |
Ark. Code Ann. § 16-114-203 (2010) Actions for Medical Injury: Statute of limitations. Ark. Code Ann. § 16-116-103 (2010) Limitation on actions. |
|
California |
Cal. Civ. Proc. Code § 340.5 (2010) Professional negligence of health care provider; Tolling of time limitation. See also Cal. Civ. Proc. Code § 340.4 (2010) Statute of limitations for action by minor for personal injuries sustained before or during birth. Cal. Civ. Proc. Code § 335.1 (2011) Assault and battery; Personal injury; Wrongful death. |
|
Colorado |
Colo. Rev. Stat. § 13-80-102 (2010) General limitation of actions - two years. Colo. Rev. Stat. § 13-80-102.5 (2010) Limitation of actions - medical or health care. (2) For the purposes of this section: (II) A person otherwise under disability as defined in section 13-81-101, in which case the action may be maintained within the time period as provided in section 13-81-103. Colo. Rev. Stat. § 13-80-106 (2010) Limitation of actions against manufacturers or sellers of products. |
|
Connecticut |
Conn. Gen. Stat. § 52-584 (2010) Limitation of action for injury to person or property caused by negligence, misconduct or malpractice. Conn. Gen. Stat. § 52-577a (2010) Limitation of action based on product liability claim. (d) The ten-year limitation provided for in subsection (a) of this section shall be extended pursuant to the terms of any express written warranty that the product can be used for a period longer than ten years, and shall not preclude any action against a product seller who intentionally misrepresents a product or fraudulently conceals information about it, provided the misrepresentation or fraudulent concealment was the proximate cause of harm of the claimant. |
|
Delaware |
Del. Code Ann. tit. 10, § 8128 (2011) Health care malpractice action limitations. Del. Code Ann. tit. 18, § 6856 (2011) Health Care Medical Negligence Insurance and Litigation: General limitations. Del. Code Ann. tit. 10, § 8119 (2011) Personal injuries. |
|
District of Columbia |
D.C. Code § 12-301 (2011) Limitation of time for bringing actions. |
|
Florida |
Fla. Stat. Ann. § 95.11 (2011) Limitations other than for the recovery of real property. Actions other than for recovery of real property shall be commenced as follows: (4) Within two years. (a) An action for professional malpractice, other than medical malpractice, whether founded on contract or tort; provided that the period of limitations shall run from the time the cause of action is discovered or should have been discovered with the exercise of due diligence. However, the limitation of actions herein for professional malpractice shall be limited to persons in privity with the professional.
Fla. Stat. Ann. § 95.11 (2011) Limitations other than for the recovery of real property. (3) Within four years. (a) An action founded on negligence (e) An action for injury to a person founded on the design, manufacture, distribution, or sale of personal property that is not permanently incorporated in an improvement to real property, including fixtures. Fla. Stat. Ann. § 95.031 (2011) Computation of time. (b) An action for products liability under s. 95.11(3) must be begun within the period prescribed in this chapter, with the period running from the date that the facts giving rise to the cause of action were discovered, or should have been discovered with the exercise of due diligence, rather than running from any other date prescribed elsewhere in s. 95.11(3), except as provided within this subsection. Under no circumstances may a claimant commence an action for products liability, including a wrongful death action or any other claim arising from personal injury or property damage caused by a product, to recover for harm allegedly caused by a product with an expected useful life of 10 years or less, if the harm was caused by exposure to or use of the product more than 12 years after delivery of the product to its first purchaser or lessee who was not engaged in the business of selling or leasing the product or of using the product as a component in the manufacture of another product. All products, except those included within subparagraph 1. or subparagraph 2., are conclusively presumed to have an expected useful life of 10 years or less. |
|
Georgia |
Ga. Code Ann. § 9-3-71 (2011) Limitations for Malpractice Actions: General limitation. See also Ga. Code Ann. § 9-3-72 (2011) Limitations for Malpractice Actions: Foreign objects left in body; Ga. Code Ann. § 9-3-73 (2011). Limitations for Malpractice Actions: Certain disabilities and exceptions applicable. Ga. Code Ann. § 9-3--33 (2011) Injuries to the person; injuries to reputation; loss of consortium; exception. |
|
Hawaii |
Haw. Rev. Stat. Ann. § 657-7 (2011) Damage to persons or property. Haw. Rev. Stat. Ann. § 657-7.3 (2011) Medical torts; limitation of actions; time. |
|
Idaho |
Idaho Code Ann. § 5-219 (2011) Actions against officers, for penalties, on bonds, and for professional malpractice or for personal injuries. Idaho Code Ann. § 6-1403 (2011) Length of time product sellers are subject to liability. (2) Statute of repose. |
|
Illinois |
735 Ill. Comp. Stat. Ann. 5/13-212 (2011) Personal Actions: Physician or hospital. 735 Ill. Comp. Stat. Ann. 5/13-213 (2011) Product liability; statute of repose. (b) Subject to the provisions of subsections (c) and (d) no product liability action based on the doctrine of strict liability in tort shall be commenced except within the applicable limitations period and, in any event, within 12 years from the date of first sale, lease or delivery of possession by a seller or 10 years from the date of first sale, lease or delivery of possession to its initial user, consumer, or other non-seller, whichever period expires earlier, of any product unit that is claimed to have injured or damaged the plaintiff, unless the defendant expressly has warranted or promised the product for a longer period and the action is brought within that period. |
|
Indiana |
Ind. Code Ann. § 34-18-7-1 (2011) Medical Malpractice: Limitations. Ind. Code Ann. § 34-20-3-1 (2011) General statute of limitations. (b) Except as provided in section 2 [IC 34-20-3-2] of this chapter, a product liability action must be commenced: |
|
Iowa |
Iowa Code Ann. § 614.1 (2010) Limitations of Actions: Period. Actions may be brought within the times herein limited, respectively, after their causes accrue, and not afterwards, except when otherwise specially declared: 9. Malpractice. Iowa Code Ann. § 614.1 (2010) Limitations of Actions: Period. 2A. With respect to products. |
|
Kansas |
Kan. Stat. Ann. § 60-513 (2009) Personal Actions and General Provisions: Actions limited to two years. (5) An action for wrongful death. (7) An action arising out of the rendering of or failure to render professional services by a health care provider, not arising on contract. (b) Except as provided in subsections (c) and (d), the causes of action listed in subsection (a) shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall an action be commenced more than 10 years beyond the time of the act giving rise to the cause of action. Kan. Stat. Ann. § 60-3303 (2009) Useful safe life ten-year period of repose; evidence; latent disease exception; reviving certain causes of action. (a)(2) A product seller may be subject to liability for harm caused by a product used beyond its useful safe life to the extent that the product seller has expressly warranted the product for a longer period. (b) (1) In claims that involve harm caused more than 10 years after time of delivery, a presumption arises that the harm was caused after the useful safe life had expired. This presumption may only be rebutted by clear and convincing evidence. (d) (1) In a product liability claim against the product seller, the ten-year limitation, as defined in K.S.A. 60-513, and amendments thereto, shall not apply to the time to discover a disease which is latent caused by exposure to a harmful material, in which event the action shall be deemed to have accrued when the disease and such disease's cause have been made known to the person or at the point the person should have been aware of the disease and such disease's cause. |
|
Kentucky |
Ky. Rev. Stat. Ann. § 413.140 (2010) Actions Other Than Those Relating to Real Property: Actions to be brought within one (1) year. (e) An action against a physician, surgeon, dentist, or hospital licensed pursuant to KRS Chapter 216, for negligence or malpractice; (f) A civil action, arising out of any act or omission in rendering, or failing to render, professional services for others, whether brought in tort or contract, against a real estate appraiser holding a certificate or license issued under KRS Chapter 324A; 2) In respect to the action referred to in paragraph (e) of subsection (1) of this section, the cause of action shall be deemed to accrue at the time the injury is first discovered or in the exercise of reasonable care should have been discovered; provided that such action shall be commenced within five (5) years from the date on which the alleged negligent act or omission is said to have occurred. (3) In respect to the action referred to in paragraph (f) of subsection (1) of this section, the cause of action shall be deemed to accrue within one (1) year from the date of the occurrence or from the date when the cause of action was, or reasonably should have been, discovered by the party injured. Ky. Rev. Stat. Ann. § 413.140 (2010) Actions Other Than Those Relating to Real Property: Actions to be brought within one (1) year. (a) An action for an injury to the person of the plaintiff, or of her husband, his wife, child, ward, apprentice, or servant. |
|
Louisiana |
La. Rev. Stat. Ann. § 9:5628 (2011) Actions for medical malpractice. La. C.C. Art. 3492 (2011) Delictual actions. Delictual actions are subject to a liberative prescription of one year. This prescription commences to run from the day injury or damage is sustained. It does not run against minors or interdicts in actions involving permanent disability and brought pursuant to the Louisiana Products Liability Act or state law governing product liability actions in effect at the time of the injury or damage. |
|
Maine |
Me. Rev. Stat. tit. 24, § 2902 (2011) Statute of limitations for health care providers and health care practitioners. Me. Rev. Stat. tit. 14, § 752 (2011) Limitations of Actions: Six years. |
|
Maryland |
Md. Code Ann., Cts. & Jud. Proc. § 5-109 (2011) Actions against health care providers. Md. Code Ann., Cts. & Jud. Proc. § 5-101 (2011) Three-year limitation in general |
|
Massachusetts |
Mass. Ann. Laws, ch. 260, § 4 (2010) Limitation of Three Years; Limitation of One Year for Certain Action. Actions of contract or tort for malpractice, error or mistake against physicians, surgeons, dentists, optometrists, hospitals and sanitoria shall be commenced only within three years after the cause of action accrues, but in no event shall any such action be commenced more than seven years after occurrence of the act or omission which is the alleged cause of the injury upon which such action is based except where the action is based upon the leaving of a foreign object in the body. Mass. Ann. Laws, ch. 231, § 60D (2010) Limitation of Actions by Minors. Mass. Ann. Laws, ch. 260, § 2A (2010) Limitation of Three Years in Certain Cases. |
|
Michigan |
Mich. Comp. Laws. Serv. § 600.5838a (2011) Claim based on medical malpractice; accrual; definitions; commencement of action; burden of proof; applicability of subsection (2); limitations. (2) Except as otherwise provided in this subsection, an action involving a claim based on medical malpractice may be commenced at any time within the applicable period prescribed in section 5805 or sections 5851 to 5856, or within 6 months after the plaintiff discovers or should have discovered the existence of the claim, whichever is later. However, except as otherwise provided in section 5851(7) or (8), the claim shall not be commenced later than 6 years after the date of the act or omission that is the basis for the claim. The burden of proving that the plaintiff, as a result of physical discomfort, appearance, condition, or otherwise, neither discovered nor should have discovered the existence of the claim at least 6 months before the expiration of the period otherwise applicable to the claim is on the plaintiff. A medical malpractice action that is not commenced within the time prescribed by this subsection is barred. This subsection does not apply, and the plaintiff is subject to the period of limitations set forth in subsection (3), under 1 of the following circumstances:
See also Mich. Comp. Laws. Serv. § 600.5851 (2011) Disabilities of infancy or insanity; tacking of successive disabilities prohibited; year of grace; removing disability of infancy; claim alleging medical malpractice accruing to person 8 years old or less or 13 years old or less. Mich. Comp. Laws. Serv. § 600.5805 (2011) Injuries to persons or property; limitations. (1) A person shall not bring or maintain an action to recover damages for injuries to persons or property unless, after the claim first accrued to the plaintiff or to someone through whom the plaintiff claims, the action is commenced within the periods of time prescribed by this section. (10) The period of limitations is 3 years after the time of the death or injury for all other actions to recover damages for the death of a person, or for injury to a person or property. (13) The period of limitations is 3 years for a products liability action. However, in the case of a product that has been in use for not less than 10 years, the plaintiff, in proving a prima facie case, shall be required to do so without benefit of any presumption. |
|
Minnesota |
Minn. Stat. Ann. § 541.076 (2010) Health Care Provider Actions. See also Minn. Stat. Ann. § 541.15 (2010) Periods Of Disability Not Counted. Minn. Stat. Ann. § 541.05 (2010) Various Cases, Six Years. Subd. 2. Strict liability. Minn. Stat. Ann. § 541.07 (2010) Two- Or Three-Year Limitations. |
|
Mississippi |
Miss. Code Ann. § 15-1-36 (2010) Limitations applicable to malpractice action arising from medical, surgical or other professional services. (2) For any claim accruing on or after July 1, 1998, and except as otherwise provided in this section, no claim in tort may be brought against a licensed physician, osteopath, dentist, hospital, institution for the aged or infirm, nurse, pharmacist, podiatrist, optometrist or chiropractor for injuries or wrongful death arising out of the course of medical, surgical or other professional services unless it is filed within two (2) years from the date the alleged act, omission or neglect shall or with reasonable diligence might have been first known or discovered, and, except as described in paragraphs (a) and (b) of this subsection, in no event more than seven (7) years after the alleged act, omission or neglect occurred: Miss. Code Ann. § 15-1-49 (2010) Limitations applicable to actions not otherwise specifically provided for. (2) In actions for which no other period of limitation is prescribed and which involve latent injury or disease, the cause of action does not accrue until the plaintiff has discovered, or by reasonable diligence should have discovered, the injury. |
|
Missouri |
Mo. Rev. Stat. § 516.105 (2011) Actions against health care providers (medical malpractice). Mo. Rev. Stat. § 516.120 (2011) What actions within five years. |
|
Montana |
Mont. Code Ann. § 27-2-205 (2010) Actions for medical malpractice. Mont. Code Ann. § 27-2-204 (2010) Tort actions—general and personal injury. |
|
Nebraska |
Neb. Rev. Stat. Ann. § 44-2828 (2010) Nebraska Hospital-Medical Liability Act: Action to recover damages; limitation of action. Neb. Rev. Stat. Ann. § 25-222 (2010) Actions on professional negligence. Neb. Rev. Stat. Ann. § 25-224 (2010) Actions on product liability. |
|
Nevada |
Nev. Rev. Stat. Ann. § 41A.097 (2010) Action for Medical or Dental See also Malpractice: Limitation of actions; tolling of limitation. Nev. Rev. Stat. Ann. § 11.190 (2010) Periods of limitation. 4. Within 2 years: Nev. Rev. Stat. Ann. § 11.220 (2010) Action for relief not otherwise provided for. |
|
New Hampshire |
N.H. Rev. Stat Ann. § 507-C:4 (2011) Actions for Medical Injury: Statute of Limitations. N.H. Rev. Stat Ann. § 507-D:2 (2011) Limitation of Product Liability Actions. |
|
New Jersey |
N.J. Rev. Stat. 2A:14-2 (2011) Actions for injury caused by wrongful act. a. Every action at law for an injury to the person caused by the wrongful act, neglect or default of any person within this State shall be commenced within two years next after the cause of any such action shall have accrued; except that an action by or on behalf of a minor that has accrued for medical malpractice for injuries sustained at birth shall be commenced prior to the minor's 13th birthday. |
|
New Mexico |
N.M. Stat. Ann. § 41-5-13 (2010) Limitations. N.M. Stat. Ann. § 37-1-8 (2010) Actions against sureties on fiduciary bonds; injuries to person or reputation. Actions **** for an injury to the person or reputation of any person, within three years. |
|
New York |
N.Y. C.P.L.R. § 214-a (2011) Action for medical, dental or podiatric malpractice to be commenced within two years and six months; exceptions. object" shall not include a chemical compound, fixation device or prosthetic aid or device. See also N.Y. C.P.L.R. § 208 (2011) Limitations of Time: Infancy, insanity. N.Y. C.P.L.R. § 214 (2011) Actions to be commenced within three years: for non-payment of money collected on execution; for penalty created by statute; to recover chattel; for injury to property; for personal injury; for malpractice other than medical, dental or podiatric malpractice; to annul a marriage on the ground of fraud. N.Y. C.P.L.R. § 214-c (2011) Certain actions to be commenced within three years of discovery. |
|
North Carolina |
N.C. Gen. Stat. § 1-15 (2010) Statute runs from accrual of action. N.C. Gen. Stat. § 1-52 (2010) Three years. (16) Unless otherwise provided by statute, for personal injury or physical damage to claimant's property, the cause of action, except in causes of actions referred to in G.S. 1-15(c), shall not accrue until bodily harm to the claimant or physical damage to his property becomes apparent or ought reasonably to have become apparent to the claimant, whichever event first occurs. Provided that no cause of action shall accrue more than 10 years from the last act or omission of the defendant giving rise to the cause of action. N.C. Gen. Stat. § 1-17 (2010) Limitations: Disabilities. N.C. Gen. Stat. § 1-46.1 (2010) Twelve years. Within 12 years an action— N.C. Gen. Stat. § 1-53 (2010) Two years. (4) Actions for damages on account of the death of a person caused by the wrongful act, neglect or fault of another under G.S. 28A-18-2; the cause of action shall not accrue until the date of death. Provided that, whenever the decedent would have been barred, had he lived, from bringing an action for bodily harm because of the provisions of G.S. 1-15(c) or 1-52(16), no action for his death may be brought. |
|
North Dakota |
N.D. Cent. Code § 28-01-16 (2011) Actions having six-year limitations. The following actions must be commenced within six years after the claim for relief has accrued: 5. An action for criminal conversation or for any other injury to the person or rights of another not arising upon contract, when not otherwise expressly provided. N.D. Cent. Code § 28-01-18 (2011) Actions having two-year limitations. N.D. Cent. Code § 28-01-25 (2011) Disabilities extend limitations on actions generally—Exceptions. In cases alleging professional malpractice, the extension of the limitation due to infancy is limited to twelve years. N.D. Cent. Code § 28-01.3-08 (2011) Statute of limitation and repose. |
|
Ohio |
Ohio Rev. Code Ann. § 2305.113 (2011) Limitation of actions for medical malpractice; statute of repose. Ohio Rev. Code Ann. § 2305.10 (2011) Product liability claims and actions for bodily injury or injuring personal property; childhood sexual abuse. **** (C) (1) Except as otherwise provided in divisions (C)(2), (3), (4), (5), (6), and (7) of this section or in section 2305.19 of the Revised Code, no cause of action based on a product liability claim shall accrue against the manufacturer or supplier of a product later than ten years from the date that the product was delivered to its first purchaser or first lessee who was not engaged in a business in which the product was used as a component in the production, construction, creation, assembly, or rebuilding of another product. |
|
Oklahoma |
Okla. Stat. tit. 76, § 18 (2010) Torts: Limitation of action. See also Okla. Stat. tit. 12, § 96 (2010) Persons under disability in actions other than to recover realty—Exceptions—Personal injury to minor arising from medical malpractice. Okla. Stat. tit. 12, § 95 (2010) Limitations of other actions. A. Civil actions other than for the recovery of real property can only be brought within the following periods, after the cause of action shall have accrued, and not afterwards: 3. Within two (2) years: An action **** for injury to the rights of another, not arising on contract, and not hereinafter enumerated; an action for relief on the ground of fraud—the cause of action in such case shall not be deemed to have accrued until the discovery of the fraud. |
|
Oregon |
Or. Rev. Stat. § 12.110 (2010) Actions for certain injuries to person not arising on contract; action for overtime or premium pay; action for professional malpractice. (1) An action for assault, battery, false imprisonment, or for any injury to the person or rights of another, not arising on contract, and not especially enumerated in this chapter, shall be commenced within two years; provided, that in an action at law based upon fraud or deceit, the limitation shall be deemed to commence only from the discovery of the fraud or deceit. (4) An action to recover damages for injuries to the person arising from any medical, surgical or dental treatment, omission or operation shall be commenced within two years from the date when the injury is first discovered or in the exercise of reasonable care should have been discovered. However, notwithstanding the provisions of ORS 12.160, every such action shall be commenced within five years from the date of the treatment, omission or operation upon which the action is based or, if there has been no action commenced within five years because of fraud, deceit or misleading representation, then within two years from the date such fraud, deceit or misleading representation is discovered or in the exercise of reasonable care should have been discovered. Or. Rev. Stat. § 12.115 (2010) Action for negligent injury to person or property. |
|
Pennsylvania |
40 Pa. Stat. § 1303.513 (2010) Medical Professional Liability: Statute of repose. 42 Pa. Con. Stat. § 5524 (2010) Two year limitation. (2) An action to recover damages for injuries to the person or for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another. (7) Any other action or proceeding to recover damages for injury to person or property which is founded on negligent, intentional, or otherwise tortious conduct or any other action or proceeding sounding in trespass, including deceit or fraud, except an action or proceeding subject to another limitation specified in this subchapter. |
|
Rhode Island |
R.I. Gen. Laws § 9-1-14.1 (2011) Limitation on malpractice actions. R.I. Gen. Laws § 9-1-13 (2011) Limitation of actions generally—Product liability. |
|
South Carolina |
S.C. Code Ann. § 15-3-545 (2010) Actions for medical malpractice. S.C. Code Ann. § 15-3-530 (2010) Three years. |
|
South Dakota |
S.D. Codified Laws § 15-2-14.1 (2011) Medical malpractice action: two-year limitation. S.D. Codified Laws § 15-2-12.2 (2011) Product liability action: three-year limitation. |
|
Tennessee |
Tenn. Code Ann. § 29-26-116 (2011) Medical Malpractice: Statute of limitations—Counterclaim for damages. Tenn. Code Ann. § 29-28-103 (2011) Products Liability Actions: Limitation of actions—Exception. |
|
Texas |
Tex. Civ. Prac. & Rem. Ann. § 74.251 (2010) Statute of Limitations on Health Care Liability Claims. Tex. Civ. Prac. & Rem. Code Ann. § 16.003 (2010) Two-Year Limitations Period. |
|
Utah |
Utah Code Ann. § 78B-3-404 (2011) Statute of limitations—Exceptions—Application. Utah Code Ann. § 78B-6-706 (2011) Utah Product Liability Act: Statute of limitations. |
|
Vermont |
Vt. Stat. Ann. tit. 12, § 521 (2011) Medical malpractice. Vt. Stat. Ann. tit. 12, § 512 (2011) Assault and battery; false imprisonment; slander and libel; injuries to person or property. |
|
Virginia |
Va. Code Ann. § 8.01-243 (2011) Personal action for injury to person or property generally; extension in actions for malpractice against health care provider. Va. Code Ann. § 8.01-243.1 (2011) Actions for medical malpractice; minors. Va. Code Ann. § 8.01-249 (2011) When cause of action shall be deemed to accrue in certain personal actions. 7. In products liability actions against parties other than health care providers as defined in § 8.01-581.1 for injury to the person resulting from or arising as a result of the implantation of any prosthetic device for breast augmentation or reconstruction, when the fact of the injury and its causal connection to the implantation is first communicated to the person by a physician. Va. Code Ann. § 8.01-243 (2011) Personal action for injury to person or property generally; extension in actions for malpractice against health care provider. A. Unless otherwise provided in this section or by other statute, every action for personal injuries, whatever the theory of recovery, and every action for damages resulting from fraud, shall be brought within two years after the cause of action accrues. Section C. includes provisions that extend the statute of limitations for a medical malpractice action against health care provider. |
|
Washington |
Wash. Rev. Code Ann. § 4.16.080 (2011) Actions limited to three years. Wash. Rev. Code Ann. § 4.16.350 (2011) Action for injuries resulting from health care or related services—Physicians, dentists, nurses, etc.—Hospitals, clinics, nursing homes, etc. Wash. Rev. Code Ann. § 7.72.060 (2011) Length of time product sellers are subject to liability. |
|
West Virginia |
W. Va. Code Ann. § 55-7B-4 (2011) Medical Professional Liability: Health care injuries; limitations of actions; exceptions. W. Va. Code § 55-2-12 (2011) Personal actions not otherwise provided for. |
|
Wisconsin |
Wis. Stat. § 893.55 (2010) Medical malpractice; limitation of actions; limitation of damages; itemization of damages. (1m) Except as provided by subs. (2) and (3), an action to recover damages for injury arising from any treatment or operation performed by, or from any omission by, a person who is a health care provider, regardless of the theory on which the action is based, shall be commenced within the later of: Wis. Stat. § 893.56 (2010) Health care providers; minors actions. Wis. Stat. § 893.54 (2010) Injury to the person. |
|
Wyoming |
Wyo. Stat. Ann. § 1-3-107 (2011) Act, error or omission in rendering professional or health care services. Wyo. Stat. Ann. § 1-3-105 (2011) Actions other than recovery of real property. (a) Civil actions other than for the recovery of real property can only be brought within the following periods after the cause of action accrues: (iv) Within four (4) years, an action for: |
Acknowledgments
Cassandra Foley, Law Librarian, contributed to this report.
Joseph Schoorl, Law Clerk, contributed to this report.
| 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 [author name scrubbed], [author name scrubbed], and [author name scrubbed]. |
| 2. |
Restatement (Second) of Torts, § 282. |
| 3. |
W. Page Keeton, Prosser and Keeton on Torts, § 31 (5th ed. 1984). |
| 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). See Table A-1 for a 50-state survey on the definitions of medical malpractice action. |
| 10. |
H.R. 5, § 9(6). |
| 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). |
| 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). |
| 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). |
| 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. |
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. |
| 34. |
Paul J. Lesti, Structured Settlements § 21.5 (2d ed., 1993). |
| 35. |
Victor E. Schwartz, Doctors' Delight, Attorneys' Dilemma, Legal Times, Health-Care Law Supplement (Feb. 28, 1994) at 30. |
| 36. |
Id. |
| 37. |
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. |
| 38. |
Annotation, supra note 33, at 96. |
| 39. |
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. |
| 40. |
H.R. 5, § 4(d). |
| 41. |
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). |
| 42. |
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...." |
| 43. |
Michael F. Flynn, Private Medical Insurance and the Collateral Source Rule: A Good Bet?, 22 U. Told. L. Rev. 39, 49 (1990). |
| 44. |
Amendment 14 to H.R. 5. |
| 45. |
Report of the Tort Policy Working Group, supra note 35. |
| 46. |
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. |
| 47. |
See National Conference of State Legislatures, State Medical Malpractice Laws 2010, available at http://www.ncsl.org/default.aspx?tabid=18516. |
| 48. |
H.R. 5, § 5. |
| 49. |
The Manhattan Institute, Rethinking Contingency Fees 28, 29 (1994). |
| 50. |
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. |
| 51. |
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. |
| 52. |
Id. at 6. |
| 53. |
To toll the statute of limitations means to stop its running. |
| 54. |
Colo. Rev. Stat. § 13-25-127 (2010). |
| 55. |
Haw. Rev. Stat. Ann. § 663-10.9 (2011). |
| 56. |
Iowa Code Ann. § 668.4 (2010). |
| 57. |
Idaho Code Ann. § 6-803 (2010). |
| 58. |
See e.g., Ariz. Rev. Stat. § 12-568 (2010); Kan. Stat. Ann. § 7-121B (2010); Wash. Rev. Code Ann. § 7.70.70 (2011). |
| 59. |
Alaska Stat. § 09.60.080 (2011). |
| 60. |
N.D. Cent. Code § 28-26-01 (2011). |
| 61. |
The California provision states that an action "by or on behalf of a minor for personal injuries sustained before or in the course of his or her birth must be commenced within six years after the date of birth, and the time the minor is under any disability mentioned in Section 352 shall not be excluded in computing the time limited for the commencement of the action." Cal. Civ. Proc. Code § 340.4 (2010). |
| 62. |
La. Rev. Stat. Ann. § 9:5628.1 (2011) statute of limitation provision for actions for liability from the use of blood or tissue. |
| 63. |
Section 214-3 of N.Y. Civil Practice Law and Rules is the time limitation for an action to recover damages for personal injury caused by the infusion of such blood products which result in the contraction of the human immunodeficiency virus (HIV) and/or AIDS. |