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State court throws out malpractice damage cap

Over the last few years, many states, including California, have passed laws that limit the amount that victims of medical malpractice can recover for non-economic damages. Congress is considering a similar measure. A recent decision by an appellate court in Wisconsin may seriously undermine the constitutionality of such laws.

Damages in medical malpractice cases generally fall into three categories: medical expenses, lost income and pain and suffering. The first two categories include only quantifiable losses suffered by the plaintiff.

The third category includes so-called "non-economic losses." They are so named because pain and suffering is a subjective category that cannot be accurately quantified. Non-economic losses is the damage category that usually produces multi-million dollar verdicts in malpractice cases.

The appellate court in Wisconsin found that the state's $750,000 cap on non-economic losses (California's cap is $250,000) is unconstitutional on its face. The court found that the damages cap limits recovery only for the most seriously injured patients and those less seriously injured patients would always receive full compensation for their injuries.

The court found the cap to be unconstitutional because it discriminated between different classes of patients without having a reasonable basis to make the distinction. While the Wisconsin decision does not bind courts in any other state, other courts may find the reasoning persuasive in judging other challenges to damage cap statutes.

Despite the limitation on non-economic damages, any Californian who has been injured or lost a loved one to a physician's error may wish to consult a knowledgeable malpractice lawyer about the facts and law that will govern the case's outcome. An experienced attorney can provide a helpful analysis of the facts and law that will determine the case's outcome.

Source: Milwaukee Journal Sentinel, "Wisconsin's cap on medical malpractice awards unconstitutional, courts rules," Cary Spivak, July 5, 2017

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