Do Non-Economic Damages Caps Always Benefit Patients?

Placing limits on non-economic damages in medical malpractice cases has been a contentious issue, with a majority of states upholding the measure despite a barrage of criticism. Under current tort-reform laws, the amount of money a medical malpractice victim may receive for non-economic damages, such as pain and suffering, is capped to $350,000 – $500,000 (adjusted for inflation.)

Damages caps have been touted as a one-size-fits-all approach to the ever-growing medical liability premiums that have discouraged doctors from entering certain practice areas like ob-gyn, with devastating consequences for patients, especially those in low-income, rural areas.


But are caps on non-economic damages truly benefitting patients? Critics have argued that the caps have not prevented insurance premiums from going up, but they did help deny poor claimants proper access to justice while encouraging a lack of accountability among doctors.

What Are Non-Economic Damages Caps?

Non-economic damages caps are legal limits placed on jury awards for non-economic damages in some personal injury cases, including medical malpractice cases. Their goal is to protect health care providers against excessive jury awards and to curtail the surge in medical liability premiums, which often translates into more expensive and less accessible care for patients.

Damages caps do not affect “economic” damages, such as medical expenses and lost earnings, since they can be more easily quantified than “non-economic” damages. Non-economic damages include:

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  • Pain and suffering
  • Emotional distress
  • Loss of consortium
  • Loss of enjoyment of life
  • Reputational damage, etc.

Some states have caps only on compensatory non-economic damages, while others limit punitive non-economic damages as well. Total damages can be capped as well. Some states allow the jury to be told about the cap, while others let the jury decide on an award, with the judge having the final say on the amount of recoverable damages.

For instance, in Colorado, a personal injury attorney was able to secure $850,000 in pain and suffering damages for one of his clients severely injured in a car crash, but the judge ultimately capped the jury award to $280,810. (Meanwhile, Colorado caps were dramatically raised starting January 1, 2020.)

The Centennial State is unique since it has a $1,000,000 cap on economic damages as well in medical malpractice cases unless the plaintiff can prove long-term medical costs or lifelong disability, in which case the cap may be exceeded.

Such excesses by state legislatures have made many people wonder if these caps truly benefit all of the participants to the economy, not just some select few.

Do Non-Economic Damages Caps Benefit Patients?

Insurers and medical groups have argued that the caps are necessary to keep the cost of healthcare down by curbing the year-to-year rise of medical liability premiums across the nation. The caps are also supposedly designed to protect doctors against excessive jury verdicts that could put an end to their careers.

Non-economic damages caps have indeed reduced the size and number of medical malpractice cases brought against doctors, but not for the good reasons. Law professionals have reported a drop in annual filings by as much as 38% since the caps were enacted as more lawyers have started focusing on bigger cases.

Running a medical malpractice case is already a very expensive endeavor, so the caps on non-economic damages mean that low-value cases simply don’t pay off anymore. In many states, medical malpractice attorneys now tend to avoid lower-income clients unless the economic damages are worth pursuing.

It is now much profitable to be an Aurora personal injury lawyer in a med mal case since the Illinois Supreme Court struck down the caps about a decade ago than to be an attorney in Boulder, CO, for instance, where there are caps on both economic and non-economic damages to protect doctors.

In such states, some attorneys have simply found ways to bypass the caps by turning medical malpractice cases into product liability cases whenever they could. But this strategy means less accountability for negligent or incompetent physicians, which can only further harm patients in the long run.


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