When a doctor makes a negligent mistake, the victim expects to be paid back for the costs of that mistake including extra medical treatments, extended care, and loss of wages while harmed. But there is another category of compensation that can also be awarded to malpractice victims: non-economic damages or impacts to the patient’s life that do not have exact monetary amounts. A new bill in the senate aims to set limits on the amount of non-economics damages that can be awarded in malpractice cases across the country.
Non-economic damages compensate victims of malpractice for unquantifiable injuries like pain and suffering, emotional turmoil, loss of enjoyment of life, the stress of dealing with a new lifelong injury, and loss of consortium or the loss of an immediate family member.
Currently, each state sets its own caps on non-economic damages so amounts vary across the country, but there are some common restrictions. Amounts of non-economic damages are usually calculated using a formula that awards these damages proportionally to economic damages (the actual cost of extra medical bills, lost wages, etc.…). Non-economic damages are only awarded for real losses; patients must be able to demonstrate documented suffering (for example a diagnosis of Post Traumatic Stress Disorder). Federal laws limit non-economic damages usually to no more than ten times the amount of economic damages.
The new senate bill, the Help Efficient, Accessible, Low-Cost, Timely Health Care Act (HEALTH) of 2016, aims to limit non-economic damage awards by setting a $250,000 cap on compensation awards. For comparison, the current cap in Maryland for non-economic damages is $770,000 and is set to increase each year by $15,000. The HEALTH bill also includes provisions to limit attorney contingency fees and one to allow for periodic payments instead of full sums to protect from bankruptcy, and the bill creates a “fair share” rule that allocates damages in proportion to fault.
The American Bar Association (ABA) has spoken out against the bill. The ABA argues that setting a federal $250,000 cap appropriates states’ rights to set these caps, and also underestimates the amount of non-economic damages a victim can suffer. In a letter to the House Judiciary Committee, the ABA argued that the “fair share” rule also preempts states’ rights, and further limits damages victims should receive for economic harm as well as non-economic damages. The ABA also disputed the limit to attorney fees, arguing that there is no justification for such a limit.
Caps on non-economic damages dis-proportionally harm certain injuries. With low non-economic damage caps, patients who lost loved ones or children, or who suffered permanent brain damage may receive the same non-economic award as a patient who suffered from curable injuries.
For now, states continue to set and amend their own cap limits for non-economic damages.The HEALTH act remains on hold in the House of Representatives.