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Woman Awarded $3.5 Million Challenges North Dakota’s Cap On Noneconomic Damages

Chenille Condon was awarded $3.5 million in damages by a North Dakota jury in a medical malpractice suit after she became disabled following a surgery at CHI St. Alexius Health. The state has long maintained a cap limiting noneconomic damages, such as those allocated for pain and suffering at $500,000. Condon had her award reduced to $1 million and is challenging the cap, saying it is unconstitutional. The state has long favored the limitation as a means of controlling the costs of malpractice insurance premiums for medical professionals. This is the first instance where the cap has been challenged in its 22 years of existence; however, it is also the largest award by a jury since it was enacted. In 1978, the North Dakota Supreme Court ruled that a then $300,000 cap on all damages (economic and noneconomic) was unconstitutional because it violated provisions of equal protection. The state code defines noneconomic damages as being those stemming from pain and suffering, deficiency, deformity, grief, anguish, loss of companionship and other damages that are not monetary.

In 2012, at the age of 35, Condon underwent a lymph node biopsy, referred to as a mediastinoscopy, where the physician makes incisions to remove lymph nodes that can then be tested for the presence of cancer or infection. Dr. Allen Michael Booth performed the process and accidentally severed an artery causing a stroke that led to paralysis on the left side of her body and impaired her cognition, hindering her ability to continue her college studies. Ultimately, the tissue samples were determined not to be cancerous. The jury award was $2 million for economic and $1.5 million for noneconomic damages. The defendants asked the judge to invoke the limitation and thus reduce the award. Condon’s lawyers say the cap is unconstitutional because it is arbitrary and unfairly impacts those with the most severe injuries.

State law explains that in medical malpractice actions, the noneconomic damages may not exceed $500,000, which is the limit regardless of the number of defendants or claims resulting from the injury. When a jury is tasked with determining the amount of damages to be awarded, they are not made aware of the limitations; rather, the court will reduce the award as needed afterward. The Practitioner Data Bank showed that during the 25 year period between 1990 and 2015 that only 58 of the 505 awards surpassed the $500,000 threshold.

In initiating the law, the legislature sought to avoid massive and unpredictable awards for damages. For the insurance market, the cap assists in stabilizing their liability by avoiding enormous payouts and encourages courts to reach more settlements. Condon’s attorneys are highlighting rulings in states such as Georgia and Missouri that have found such limitations to be unconstitutional.

About the Author

Briggs Bedigian
Briggs Bedigian

H. Briggs Bedigian (“Briggs”) is a founding partner of Gilman & Bedigian, LLC.  Prior to forming Gilman & Bedigian, LLC, Briggs was a partner at Wais, Vogelstein and Bedigian, LLC, where he was the head of the firm’s litigation practice.  Briggs’ legal practice is focused on representing clients involved in medical malpractice and catastrophic personal injury cases. 


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