“Caps on damages,” and especially the often-discussed “$250,000 cap on non-economic damages” is, as Kevin Drum put it in Mother Jones, “the worst possible kind” of tort reform. That’s because a cap like that “affects only the biggest, most serious cases.” Moreover, when a “cap” is in place, and because “the cost of mounting a case is expensive enough, … it’s barely worthwhile for a lawyer to bother.” This is particularly true when injuries are largely “non-economic” in nature (lost limbs, blindness, trauma, pain) or economic wage loss is relatively low (think children, the poor, the elderly).
Laws that cap damages scoop up all nature of wrongdoing and protect a shocking catalog of lawbreakers. Criminals, drunk drivers, not to mention coldhearted corporate executives whose policies cause deaths and injuries. A couple recent cases illustrate how that works.
In Ohio, the state Supreme Court is about to rule on the impact on sexual assault victims of that state’s $250,000 non-economic damages cap.
Jessica Simpkins was raped at the age of 15 by her church pastor – a man hired by Grace Brethren Church in Sunbury despite the knowledge that he had previously sexually abused two girls.
In a civil suit, a jury awarded Simpkins $3.5 million for pain and suffering, but the amount was reduced to $250,000 due to a state law that caps damages.
She says she's being re-victimized and took the case to the Ohio Supreme Court.
A recent article in Slate explored the horrendous impact of non-economic damages caps on sexual assault victims.
Like many sexual assault victims, Simpkins also pursued a civil suit against the church. In a criminal case, “the perpetrator is only going to be held accountable to the state, not the victim,” says Joanne Doroshow of the Center for Justice and Democracy at New York Law School. “Sometimes, the civil justice system is the only way for a perpetrator to be held directly accountable to the victim for the trauma and the pain that they’ve caused.” …
[A]s more and more victims of sexual assault are taking their cases to the civil justice system, the caps are having unforeseen consequences. “If you rape a child, you get the benefit of tort reform,” says Simpkins’ lawyer John Fitch. Tort reform, he adds, “makes it financially impractical for children like this to hold those responsible accountable in the legal system.”
In Texas, another atrocious wrongdoer, engaged in truly unspeakable acts, likely will be another beneficiary of a similar cap. According to Forth Worth’s NBC 5,
The owner of a North Texas medical company regularly directed nurses to give hospice patients overdoses of drugs such as morphine to speed up their deaths and maximize profits, an FBI agent wrote in an affidavit for a search warrant obtained by [the station].…
[The owner, 34-year-old Brad Harris, an accountant], instructed a nurse to administer overdoses to three patients and directed another employee to increase a patient's medication to four-times the maximum allowed, the FBI said. He allegedly sent text messages like, "You need to make this patient go bye-bye."…
Harris also told other health-care executives over a lunch meeting that he wanted to "find patients who would die within 24 hours," and made comments like, "if this f----- would just die," an FBI agent wrote in the warrant.
After Texas enacted its $250,000 cap in 2003, it became extremely difficult for families to sue Texas nursing homes for abuse or neglect. As the ABA Journal put it, this kind of law “hits the elderly and the poor especially hard, since they have little or nothing to show for lost earning power under economic damages.”
One Texas attorney added that after this law passed, “many of the nursing homes he has been dealing with over the years have either stopped carrying insurance or have switched to $250,000 so called wasting policies. Under those policies, defense costs are subtracted from the coverage amount, leaving less for payouts to plaintiffs.”
It remains to be seen whether this cruel liability limit was on Mr. Harris’ mind when he started ordering nurses to overdose and kill patients. But this we know for sure: caps like this lead to more medical errors, higher health care costs and no increase in patient care physicians.
In other words, forget that rock n roll lifestyle. It’s caps on damages that might really do you in.