Medical Malpractice Caps, are caps on non-economic damages (i.e. pain and suffering, loss of enjoyment of life, loss of a loved one), namely, limiting of the total amount payable to the injured in medical claims.
They are supposed to decrease the burden and litigation of health care and it’s increasingly rising cost. Although the reduction of cost is a noble pursuit, it could potentially limit the liberties upon which our legal system and our very nation were founded.
Caps on damages limit or restrict the access that the common man (or woman) has to a trial by jury, as guaranteed by the Seventh Amendment of our Constitution. This in turn may violate the Fifth and Fourteenth amendment by not granting due process and equal protection under the law.
In our legal system, one of the most basic tenants is trial by jury. The text of the Seventh Amendment directly is
“in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the rules of common law”
Although the availability of a jury is not directly in dispute with medical malpractice caps, the judgement of the jury is invaded by limiting them as a fact finding body.
With a medical malpractice cap, regardless of your pain and suffering, the jury would have a “glass ceiling” that would limit the payout for the plaintiff. Plaintiffs (victims) faced with this cap would be further frustrated as even the most meritorious claim would only have the possibility of an award up to the capped amount.
The argument in favor of the medical malpractice caps is the increasing cost of medical malpractice insurance. Although this increasing cost of insurance is an issue, malpractice insurance companies state that non economic damages account for a very small percentage of their payouts. And state that these caps, if instituted, would only account for savings of around 1.0% for each company.
However, even if this is so, is this one percentage point worth invading a tenant of our judicial system that ensures individual rights and freedoms?
Medical malpractice caps simply limit the rights of the injured, and do not alleviate enough burdens on the doctors to warrant a second glance.
If the issue is insurance cost to physicians, then perhaps the legislature should look to the insurance companies themselves, and not to the injured. The medical malpractice insurance companies having been recording large profits for many years.
We want to ensure that our right to justice is not unfaily limited by the powerful doctor insurance lobby!