Striking Down Damage Caps that Hurt Consumers [Chart]

Posted November 2, 2012 in Personal & Home Safety by

Missouri is the state where the supreme court most recently struck down damage cap laws that hurt consumers when they file a medical malpractice or injury lawsuit. See the state-by-state chart below.

The laws were enacted as part of an anti-consumer movement in the law known as “tort reform.” Starting in the 1970s, it was designed to severely cut awards  made by juries.

At the request of Lawyers.com, attorneys Walter H. Boone,  J. Chase Bryan, and Jordan McKibben of the national law firm Forman Perry Watkins Krutz & Tardy LLP prepared the state-by-state chart below. Forman Perry was named by Fortune Magazine as one of Martindale-Hubbell’s 2013 top ranked law firms.

  • Courts in eight states have ruled that the damage cap laws unconstitutional, including  Alabama, Florida, Georgia, Illinois, Missouri, New Hampshire, Oregon and Washington.
  • States with no caps include: Arizona, Arkansas, Connecticut, Delaware, D.C., Iowa, Kentucky, Minnesota, New Jersey, New York, Pennsylvania, Rhode Island, Vermont and Wyoming. 

“Almost all non-economic damage cap statutes have been challenged on constitutional grounds at some point since their enactment,” Boone says. “But these challenges have been largely unsuccessful.”

You can search for your state below by pressing the Ctrl and F keys on your computer

CONSTITUTIONALITY OF NON-ECONOMIC DAMAGES CAPS BY STATE

STATE

CAPS

Challenge

HOLDING/REASONING/STATUTORY LAW

Alabama

§ 6-5-544

Cap on noneconomic damages in medical malpractice actions: $400,000.

Constitutionality challenged by Moore v. Mobile Infirmary Ass’n, 592 So. 2d 156 (Ala. 1991)

UNCONSTITUTIONAL.  Statutory cap violates right to jury trial and equal protection clause in medical malpractice cases.

Alaska

AS § 09.17.010

Cap on noneconomic damages in all tort actions: $400,000 (or life expectancy ´ $8,000); for severe permanent injury or disfigurement, $1,000,000 (or life expectancy ´ $25,000).

 

AS § 09.55.549

Cap on noneconomic damages in medical malpractice actions: $250,000; $400,000 for wrongful death or severe permanent impairment.

 

Constitutionality challenged by Evans v. State, 56 P.3d 1046 (Alaska 2002)

 

 

 

 

 

 

 

 

Cap has not been challenged.

CONSTITUTIONAL. Statutory cap does not violate right to jury trial, substantive due process, the separation of powers, or the bar against “special legislation.” The state has a legitimate interest in capping non-economic damages.

Arizona

No cap

Ariz. Const., art. 2 § 31, Art. 18 § 6

State constitution prohibits caps on recoverable damages.

Arkansas

No cap

Ark. Const., art. 5 § 32

State constitution prohibits limiting recoverable damages resulting from injury or death.

California

Cal.Civ.Code § 3333.2

Cap on noneconomic damages in medical malpractice actions: $250,000.

 

 

 

Cal.Civ.Code § 3333.4

Bar to recovery of noneconomic damages by certain categories of injured automobile owners and drivers, including uninsured motorists and drunk drivers.

Constitutionality challenged by Fein v. Permanente Med. Grp., 695 P.2d 665 (Cal. 1985) and Hoffman v. U.S., 767 F.2d 1431 (9th Cir. 1985).

 

Constitutionality challenged by Quackenbush v. Superior Court, 60 Cal. App.4th 454 (1997)

CONSTITUTIONAL. Statutory cap does not violate equal protection or due process clauses because it is rationally related to a legitimate state interest.

 

 

 

 

 

CONSTITUTIONAL. Cap does not violate due process, equal protection or “one subject” rule.

Colorado

C.R.S.A. § 13-21-102.5

Cap on noneconomic damages in all tort actions other than medical malpractice: $250,000; unless clear and convincing evidence that greater award is justified, then award may not exceed $500,000.

 

C.R.S.A § 13-64-302

Cap on noneconomic damages in medical malpractice actions: $300,000.

Challenged by Scharrel v. Wal-Mart Stores, 949 P.2d 89 (Colo.App. 1997)

 

 

 

 

 

 

 

 

 

Challenged by Scholz v. Metro. Pathologists, P.C., 851 P.2d 901 (Colo. 1993) and Garhart ex rel. Tinsman v. Columbia/Healthone, L.L.C., 95 P.3d 571 (Colo. 2004)

CONSTITUTIONAL. Cap does not violate equal protection or due process or deny the right of access to the courts which is guaranteed by State Constitution.

 

 

 

 

 

 

 

 

 

CONSTITUTIONAL. Statutory cap does not infringe upon any fundamental right, and it is reasonably related to a legitimate state interest

Connecticut

No cap

 

 

Delaware

No cap

 

 

District of Columbia

No cap

 

 

Florida

The “Tort Reform and Insurance Act of 1986”

Cap on noneconomic damages: $450,000.

 

F.S.A. § 766.118

Cap on noneconomic damages in medical malpractice actions: $500,000; or $1,000,000 in cases of death, vegetative state or if manifest injustice would occur; $750,000 against non-practitioner defendants, or $1,500,000 in cases of death, vegetative state or manifest injustice.

Constitutionality challenged by Smith v. Dept. of Insurance, 507 So.2d 1080 (Fla. 1987)

 

Challenged by Estate of McCall ex rel. McCall v. U.S. 642 F.3d 944 (11th Cir. 2011)

UNCONSTITUTIONAL. $450,000 statutory cap in non-economic damages is unconstitutional under access to courts and right to jury trial provisions in state constitution.

 

UNDETERMINED. Court of Appeals held statutory cap does not violate the United States Constitution.  Court would certify to Florida Supreme Court questions of whether the cap violated rights to equal protection, access to courts and trial by jury, or separation of powers, under Florida’s constitution. Florida Supreme Court has not handed down opinion.

Georgia

Ga. Code Ann., § 51-13-1

Cap on noneconomic damages: single medical facility, $350,000; multiple medical facilities, $700,000; and total cap, $1,050,000 for actions against multiple health care providers and medical facilities

Constitutionality challenged by Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 691 S.E.2d 218 (2010)

UNCONSTITUTIONAL.  The statutory cap on noneconomic damages violates the right to a jury trial.

Hawaii

Haw. Rev. Stat. § 663-8.7

Cap on noneconomic damages: $375,000;   except for certain torts including intentional torts, environmental pollution, toxic and asbestos related, strict and products liability torts, aircraft accidents, and motor vehicle accidents.

Constitutionality challenged by

Ray v. Kapiolani Med. Specialists, 125 Haw. 253, 260, 259 P.3d 569, 576 reconsideration denied, 125 Haw. 249, 258 P.3d 946

UNDETERMINED. The Supreme Court of Hawaii heard oral arguments on the constitutionality of the statute. The case was remanded for a new trial. The Supreme Court of Hawaii did not make a determination as to the constitutionality.

 

 

 

Idaho

I.C. § 6-1603

Cap on noneconomic damages: $250,000.

Challenged by Kirkland v. Blaine Cnty. Med. Ctr., 4 P.3d 1115 (Idaho 2000)

CONSTITUTIONAL. Statutory cap serves the state’s legitimate interest in protecting the availability of liability insurance.

Illinois

ILCS 2-1115.1

Cap on noneconomic damages in actions for wrongful death, bodily injury, damage to property and product liability: $500,000.

 

ILCS 2-1706.5

Cap on noneconomic damages in medical malpractice actions: $1,000,000 against hospitals; $500,000 against physicians.

Challenged by Best v. Taylor Mach. Works, 689 N.E.2d 1057 (Ill. 1997)

 

 

 

 

 

Challenged by LeBron v. Gottlieb Memorial Hosp., 930 N.E.2d (Ill. 2010)

UNCONSTITUTIONAL. Statutory cap on noneconomic damages violates both the bar against special legislation and the separation of powers clause.

 

 

 

 

 

UNCONSTITUTIONAL. The cap on noneconomic damages in medical malpractice actions violates the separation of powers clause of the Illinois Constitution

Indiana

Ind. Code Ann. § 34-18-14-3

Cap on noneconomic damages in medical malpractice actions: $1,250,000, with each provider only liable for up to $250,000. 

Constitutionality challenged by Johnson v. St. Vincent Hosp., 404 N.E.2d 585 (Ind. 1980)

CONSTITUTIONAL. Cap on total damages does not violate state or federal equal protection clauses, due process clauses, or right to jury trial.

Iowa

No cap

 

 

Kansas

K.S.A. 60-19a02

Cap on noneconomic damages in any personal injury action: $250,000

 

 

 

 

 

K.S.A. 60-1903

Cap on noneconomic damages in wrongful death actions: $250,000.

Constitutionality challenged by Samsel v. Wheeler Transport Servs., Inc., 789 P.2d 541 (1990) and Miller v. Johnson, 2012 WL 4773559 (Oct. 5, 2012)

 

Challenged by Leiker By and Through Leiker v. Gafford, 245 Kan. 325(1989)

CONSTITUTIONAL. Non-economic damages cap does not violate due process or right to jury trial

 

 

 

 

 

 

 

CONSTITUTIONAL.  Cap on damages does not violate equal protection, right to trial by jury or remedy by due course of law.

Kentucky

No cap

Ky. Const., § 54

State constitution prohibits cap on damages.

Louisiana

LSA–R.S. 40:1299.42(B)

Cap on noneconomic damages in medical malpractice actions: $500,000; qualified provider is not liable for more than $100,000.

Challenged by Butler v. Flint Goodrich Hosp. of Dillard Univ., 607 So. 2d 517 (La. 1992)

Reconsidered by Oliver v. Magnolia Clinic, 85 So.3d 39(La. 2012)

CONSTITUTIONAL. Damages cap does not violate due process or equal protection because it is not arbitrary, capricious, or unreasonable. The Supreme Court reconsidered the issue in Oliver and again held that the cap is constitutional.

Maine

Me. Rev. Stat. Ann. tit. 18-A, § 2-804

Cap on noneconomic damages in wrongful death actions: $500,000.

Constitutionality has not been challenged.

 

Maryland

Md. Code Ann., Cts. & Jud. Proc. § 11-108

Cap on noneconomic damages in personal injury and wrongful death actions: $500,000; and increasing by $15,000 every year starting in 1995.

Challenged by Murphy v. Edmunds, 601 A.2d 102 (Md. 1992)

CONSTITUTIONAL. Cap is rationally related to a legitimate state interest and does not restrict access to courts

Massachusetts

M.G.L.A. 231 § 60H

Cap on noneconomic damages in medical malpractice actions: $500,000; unless jury finds a substantial or permanent loss of bodily function or other special circumstance.

 

Constitutionality has not been challenged.

 

Michigan

M.C.L.A. 600.1483

Cap on noneconomic damages in medical malpractice actions: $280,000 (adjusted for inflation); except in cases of certain severe injuries where the damages are capped at $500,000.

Constitutionality challenged by Zdrojewski v. Murphy, 657 N.W.2d 721(2002) and Smith v. Botsford Gen. Hosp., 419 F.3d 513 (6th Cir. 2005)

CONSTITUTIONAL. Legislature has right to modify common law and statutory rights and remedies.  And the jury still determines the facts and amount of damages, so the right to jury trial is not violated. Cap does not violate the Seventh Amendment or Equal Protection Clause of the U.S. Constitution.

Constitutionality questioned in Wiley v. Henry Ford Cottage Hosp., 668 N.W.2d 402(Mich. App. 2003), but court was required to follow precedent.

Minnesota

No cap (statute repealed)

 

 

Mississippi

Miss. Code Ann. § 11-1-60

Limited recovery of noneconomic damages to $500,000 for medical malpractice actions and $1,000,000 for all other actions.

 

Constitutionality challenged by Sears, Roebuck and Co. v. Learmonth, 95 So.3d (Miss. 2012) (5th Cir. 2011). See also

Carter, et al. v. Interstate Realty Mgmt. Co., et al., Cause no. 14-CI-09-0019 (Coahoma Cnty. Cir. Ct., Miss., 2012) (not reported)

UNDETERMINED. Mississippi Supreme Court declined to answer certified question as to constitutionality of non-economic damage caps, but Fifth Circuit is proceeding to answer question.

 

Circuit Court of Coahoma County held statutory cap on non-economic damages cap unconstitutional

Missouri

V.A.M.S. 538.210

Cap on noneconomic damages in medical malpractice actions: $350,000

Challenged by Watts v. Lester E. Cox Medical Centers, (Mo. July 31, 2012), 2012 WL 3101657

UNCONSTITUTIONAL. $350,000 cap on non-economic damages violated right to trial by jury under Missouri Constitution.

 

There is some uncertainty as to whether the cap is constitutional in cases of wrongful death caused by a health care provider since there is no common law action for wrongful death. See Sanders v. Ahmed 364 S.W.3d 195(Mo. April 3, 2012)

Montana

Mont. Code Ann. § 25-9-411(3)

Cap on noneconomic damages in medical malpractice actions: $250,000.

 

Constitutionality has not been challenged

 

 

Nebraska

Neb.Rev.St. § 44-2825

Cap on noneconomic damages in medical malpractice actions: $1.75 million; each qualified health care provider is not liable for more than $500,000.

Constitutionality challenged by Gourley ex rel. Gourley v. Nebraska Methodist Health Syst., Inc., 663 N.W. 2d 43 (Neb. 2003)

 

 

 

CONSTITUTIONAL. Statutory cap does not violate equal protection, right to jury trial, open courts provision, separation of powers, prohibition against taking property for public use or prohibition against “special legislation” of State Constitution.

Nevada

N.R.S. 41A.035

Cap on noneconomic damages in medical malpractice actions: $350,000.

The Supreme Court of Nevada heard oral arguments in Villegas v. Sheikh on the issue of whether the cap applies to each plaintiff or to each occurrence.

UNDETERMINED. The Supreme Court has not handed down an opinion on the issue, but the outcome could affect the constitutionality of the cap.

New Hampshire

N.H. Rev. Stat. § 508:4-d

Cap on noneconomic damages in all personal injury actions: $875,000.

Constitutionality challenged by Brannigan v. Usitalo, 587 A.2d 1232 (N.H. 1991)

UNCONSTITUTIONAL. Cap violates equal protection clause; purpose of legislation does not outweigh individual rights

New Jersey

No cap

 

 

New Mexico

N. M. S. A. 1978, § 41-5-6

Cap on damages in medical malpractice actions: $600,000 cap on total damages, excluding punitive damages and past and future medical care; $200,000 cap on personal liability of health care providers.

Constitutionality challenged by Fed. Express Corp. v. United States, 228 F. Supp. 2d 1267 (N.M. 2002)

CONSTITUTIONAL. Cap does not violate equal protection clause because it is rationally related to a legitimate state interest (ensuring a source of recovery for medical malpractice victims)

New York

No cap

 

 

North Carolina

N.C.G.S.A. § 90-21.19

Cap on noneconomic damages in medical malpractice actions: $500,000, except when the defendant’s actions were reckless, grossly negligent, fraudulent, intentional or committed with malice and caused disfigurement, loss of use of part of the body, permanent injury, or death.

Constitutionality has not been challenged.

 

North Dakota

N.D. Cent. Code § 32-42-02 (1995)

Cap on noneconomic damages in medical malpractice actions: $500,000

Constitutionality has not been challenged.

Previous law with $300,000 cap was struck down as unconstitutional.  Arneson v. Olson, 270 N.W.2d 125 (N.D. 1978)

Ohio

R.C. § 2315.18

Cap on noneconomic damages in tort actions: sliding scale between $250,000 and $500,000; no limit in cases of severe injury such as deformity or loss of limb.

Constitutionality challenged by Arbino v. Johnson & Johnson, 880 N.E.2d 420 (Ohio 2007)

CONSTITUTIONAL. Cap does not violate the right to a jury trial.

Oklahoma

23 Okl.St.Ann. § 61.2

Cap on noneconomic damages in actions for bodily injury: $350,0000, unless defendant’s actions were in reckless disregard, grossly negligent, fraudulent, or intentional or with malice

Constitutionality has not been challenged.

 

Oregon

O.R.S. § 31.710

Cap on noneconomic damages in bodily injury, death or property damage actions: $500,000

Constitutionality challenged by Lakin v. Senco Products, Inc., 987 P.2d 463 (Ore. 1999)

Applicability to wrongful death actions considered in Hughes v. PeaceHealth 178 P.3d 225(Ore. 2008)

UNCONSTITUTIONAL in personal injury cases.  Cap violates customary common law right to jury trial in actions that were recognized at common law.

 

CONSTITUTIONAL in wrongful death cases.  The cap is constitutional in wrongful death and other actions that were not recognized at common law.

Pennsylvania

No cap

Pa. Const., art. III § 18

State constitution prohibits limiting damages for personal injury or death.

Rhode Island

No cap

 

 

South Carolina

Code 1976 § 15-32-220

Cap on noneconomic damages in medical malpractice actions: $350,000 per claimant from each provider or institution; $1,050,000 total per claimant from all providers or institutions. No limit in certain cases such as gross negligence and fraud.

Constitutionality has not been challenged

 

 

South Dakota

SDCL § 21-3-11

Cap on total general damages in medical malpractice actions: $500,000.

Constitutionality of previous version challenged by Knowles ex rel. Knowles v. United States, 544 N.W.2d 183 (S.D. 1996)

CONSTITUTIONAL. Amendment imposing $1 million total damage cap in medical malpractice actions declared unconstitutional because it violated due process.  Pre-amendment statute providing for $500,000 cap on noneconomic damages remains in full force and effect.

Tennessee

T. C. A. § 29-39-102

Cap on noneconomic damages in medical malpractice actions: $750,000 per plaintiff; $1,000,000 for catastrophic injuries; no cap in cases of intentional torts, falsification or concealment of records, defendant’s intoxication, or felonious act by defendant.

Constitutionality has not been challenged.

 

Texas

V.T.C.A., Civil Practice & Remedies Code § 74.301

Cap on noneconomic damages in medical malpractice actions: $250,000 against all providers; $250,000 against health care institutions, not to exceed $500,000.

 

V.T.C.A., Civil Practice & Remedies Code § 74.303

Cap on all damages in wrongful death claims against medical providers: $500,000 for each claimant.

Constitutionality challenged by Watson v. Hortman, 844 F. Supp. 2d 795 (E.D. Tex. 2012);

 

 

 

 

 

 

 

 

 

Previous version challenged by Rose v. Doctors Hosp., 801 S.W.2d 841 (Tex. 1990) (wrongful death case)

CONSTITUTIONAL. In medical malpractice cases, the cap does not violate the right of access to the courts or the Takings Clause in the United States Constitution.

Amendment to Texas Constitution allowed legislature to adopt caps on noneconomic damages in medical malpractice cases. Vernon’s Ann.Texas Const. Art. 3, § 66

 

 

 

 

 

CONSTITUTIONAL. Cap on all damages found to be unconstitutional except for causes of action created by statute, such as wrongful death.

Utah

U.C.A. 1953 § 78B-3-410

Cap on noneconomic damages in medical malpractice actions: $250,000, adjusted for inflation for causes of action accruing before May 15, 2010; $450,000 hard cap for claims accruing after May 15, 2010.

Constitutionality challenged by Judd v. Drezga, 103 P.3d 135 (2004)

CONSTITUTIONAL. Cap does not violate open courts, uniform operation of laws, or due process provisions of the Utah Constitution.  Court also held that cap does not violate separation of powers or right to jury trial (constitutional right to jury trial is “inviolate” only in capital cases)

Vermont

No cap

 

 

Virginia

VA Code Ann. § 8.01-581.15

Cap on total amount of damages recoverable in medical malpractice actions: adjusted each year; currently $2.05 million; Will be $2.95 million in 2030.

Constitutionality challenged by Etheridge, et al. v. Med. Ctr. Hosps., 376 S.E. 2d 525 (Va. 1989) and Pulliam v. Coastal Emergency Services of Richmond, Inc., 509 S.E.2d 307 (Va. 1999)

CONSTITUTIONAL. Cap does not violate right to jury trial because once the jury determines the facts, the court simply applies the law to the facts.  Also, the cap does not violate procedural or substantive due process, equal protection, or separation of powers clauses. Cap is not a “taking of property” and does not constitute special legislation.

Washington

RCWA 4.56.250

Cap on noneconomic damages in all actions for personal injury or death: sliding scale based on average annual wage and life expectancy.

Constitutionality challenged by Sofie v. Fibreboard Corp., 771 P.2d 711 (Wa. 1989)

UNCONSTITUTIONAL. Cap violates right to jury trial

West Virginia

W. Va. Code, § 55-7B-8

Cap on noneconomic damages in medical malpractice actions: $250,000 per occurrence; $500,000 per occurrence in cases of wrongful death, physical deformity, loss of use of limb or organ system, or injury that prevents injured person from independently caring for himself.

MacDonald v. City Hosp., 715 S.E.2d 405 (W. Va. 2011)

 

 

 

 

 

 

 

 

CONSTITUTIONAL. Amended cap on non-economic damages in medical malpractice cases of $250,000 does not violate right to jury trial, separation of powers, or equal protection.

Wisconsin

W.S.A. 893.55

Cap on noneconomic damages in medical malpractice actions:

$750,000

Previous version challenged by Ferdon ex rel. Petrucelli v. Wisconsin Patients Compensation Fund, 701 N.W.2d 440 (Wis. 2005). Current version has not been challenged.

Previous version with $350,000 cap struck down as unconstitutional because it violated the equal protection guarantees of the Wisconsin Constitution.

 

 

Wyoming

No caps

Wyoming Const., Art. 10, §4; Meyer v. Kendig, 641 P.2d 1235, 1239 (Wyo. 1982) (Wyoming constitution prohibits statutes that limit the “amount of damages”)

State constitution prohibits caps on damages.