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Controversy Over Pain and Suffering Caps

In a medical malpractice lawsuit, like many lawsuits grounded in tort claims, judges and juries are empowered to award both economic and non-economic damages. Economic damages generally represent losses of income, costs of medical expenses both past and future, compensation for one’s lost ability to early a living on top of losing their normal income, as well as other more easily measurable financial losses as a result of the malpractice. Non-economic damages are awarded for pain and suffering and loss of companionship among other not-so-easily measurable injuries resulting from malpractice.

Some state legislatures have capped the amount of non-economic damages that patients can be awarded, while others do not. Limits on pain and suffering awards are very controversial, with some clamoring for tort reform to protect medical providers from staggeringly high damage awards, while others believe it is up to judges or in most cases juries, as finders of fact, to make that determination on a case-by-case basis without limits.

Cases Spurn Effort to Eliminate Caps
The awful case of Jahi McMath has made headlines and gripped much of the country in early 2014. Jahi is a 13 year old Bay Area girl who was recently declared brain dead after a botched tonsillectomy. One would not normally anticipate a common enough procedure to result in one’s death, but complications arose in which after the surgery to take out Jahi’s tonsils, uvula and adenoids, she went into cardiac arrest that resulted in no blood flow or activity in her brain in the areas that control breathing. Doctors declared her brain-dead. The case has raised a number of issues, such as the question parents’ rights over their children when it comes to the decision to remove brain-dead patients from ventilators and life support. Another issue that arose in recent weeks has been the issue of caps on damages for pain and suffering in medical malpractice claims.

In California, where Jahi ‘s tragedy occurred, state law places a $250,000 ceiling on pain and suffering awards. However, given the horrible circumstances of Jahi’s case, a political movement has already begun to raise that cap. A nonprofit organization called Consumer Watchdog, in conjunction with California trial lawyers, has proposed that the legislature lift the cap to allow for great damages awards where circumstances warrant. Earlier in 2013, this issue had also been raised after an infant, Mia Chavez, died from whooping cough in 2010 after doctors, in spite of multiple exams of the 6-week old, failed to detect and diagnose the ailment before it was too late.

As has happened in the aftermath of Jahi’s case, trial lawyers and the Consumer Watchdog group pushed for elimination of the quarter million dollar cap after little Mia’s death. Many have seen these initiatives as heartless exploitation of the tragic deaths of children, while these advocates argue that a cap inappropriately places limits on the value of an individual’s life, which should be under the purview of judges and juries.

The Status of Caps in Illinois
Here in Illinois, in a well-known 2010 case, Lebron v. Gottlieb Memorial Hospital, the Illinois Supreme Court struck down a 2005 law that capped damages for non-economic losses like pain and suffering at $500,000 for doctors, and $1 million for hospitals. The decision was premised on the view that the judiciary alone has the ability to set damage awards, and that any such involvement by the legislature is unconstitutional. Thus currently there is no limit in Illinois on pain and suffering damages. This will nevertheless be an interesting issue to follow both nationwide as well as within Illinois should there be further attempts to adjust. If you are involved in or believe you have a medical malpractice case, it is important to remember this vital decision.

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