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Non-Economic Damage Caps


Non-economic damages include most things that are not easily calculated.  They are commonly called pain and suffering damages, though every state has its own specific rules for what factors are included.  They are subjective damages, and are determined at trial by the jury.

Types Of Non-Economic Damages

All courts have jury instructions right before deliberations, where the judge instructs the jury about the law.  If requested, the judge will tell the jury what they can include on their verdict in the form of non-economic damages.  These types of damages typically include:

  • Pain and Suffering:  used to describe mental and emotional distress, as well as physical discomfort and trauma
  • Inconvenience:  including difficulties caused by the injury, like a need for medical appointments or reliance on others for the tasks of daily living
  • Physical Impairment:  inability to function normally because of physical limitations, including restricted range of motion, or reliance on wheelchairs
  • Disfigurement:  abnormal appearance or deformity (for example, the contractures associated with cerebral palsy, or the injuries caused by shoulder dystocia)
  • Other:  many states permit recovery for the emotional distress of parents, who bear the economic and emotional “burden” of taking care of a child with extraordinary medical injuries.  These damages may also include loss of a child’s society, affection and companionship.

Limits On Non-Economic Damage Recovery

Many state legislatures have put a maximum recovery, known as a cap, on non-economic damages.  This means that there is an upper-end limit on what a plaintiff in a birth injury malpractice is allowed to recover for these injuries.  The cap varies by state—some states have a “one-size-fits-all” cap; some states have different caps for medical malpractice cases and non-medical malpractice cases, and some states have a cap that increases every year for inflation.  Some states have caps as low as $250,000.

Jurors are not usually informed about the cap.  After they render their verdict, they are dismissed and the judge will reduce the damages verdict according to the cap.

Most states permit unlimited recovery of provable economic losses (like the cost of nursing care, medical care, medications, therapies and lost wages).  Some states, however, place a limit on those damages, as well.

Fighting Against Non-Economic Damage Caps

Our firm supports the abolition of non-economic damage caps, because these caps are contrary to justice and conflict with our country’s right to a jury trial.  These caps prevent a victim from being “made whole.”  It is not for a legislature to say what the value of a life or a hurt life is.  Rather, it is for the jury, who hears the evidence and can apply the rule of law to a specific situation.

Many state courts have overturned legislatively-enacted damage caps, finding them to unconstitutional.  One group that is particularly effective in that regard is Public Citizen.

Contact Us

If you have questions about the medical malpractice laws in your state, or if you want to know whether your child is eligible for a birth injury lawsuit, contact our medical malpractice lawyers at (440) 252-4399 or send us information about your case through our online contact form.

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