Caps on Damages Deprive Some a Just Award

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Usually there are both economic and non-economic damages that result from an injury. Medical expenses, lost wages, and rehabilitation costs are considered economic damages; whereas, damages for pain and suffering are deemed non-economic damages.

Determining the amount of non-economic damages is difficult and can be subject to broad discretion on the part of juries—and is why caps on damages have gained political momentum. But many current reforms deprive judges and juries of the authority to exact awards based on the specific evidence in a given case.

Both Sides of the Argument

Advocates of caps on damages for pain and suffering (or non-economic damages) argue that a lack of caps guarantees inconsistency and unpredictability in the tort system, and forces insurers, in anticipation of paying huge settlements, to charge higher premiums. Another problem, they say, is a tendency of juries to inflate non-economic damages to cover some or all of the plaintiff’s attorney’s fees.

Those opposed to caps on non-economic damages say it punishes the worst afflicted because the more pain and suffering that a plaintiff has endured, the more a cap deprives him of damages to which he is entitled.

The New York State Bar Association and patient-rights advocacy groups strongly oppose a cap on damages, while hospitals and physicians generally support it. The purpose of an economic damages award, such as loss of earnings, is to make an injured person “whole” again, and can generally be calculated with a fair amount of certainty. On the other hand,  awards of non-economic damages cannot be precisely measured in money and are often viewed as arbitrary rewards.

While we understand the challenge, we question whether caps go too far. Caps don’t consider differences in the amount of pain,e.g.., the pain experienced by a brain cancer victim over a victim with a broken bone. Certain medical mistakes can lead to pain that lasts a lifetime while other mistakes lead to little or no pain. This discrepancy greatly impacts innocent victims by leaving very little negotiating room for settlements.

Do yourself a favor. Work with an experienced personal injury attorney who can work effectively on your behalf even with caps on damages.