Medical Malpractice Liability Reform: Legal Issues and 50-State Surveys on Tort Reform Proposals

Congressional research reportMar 28, 2011

Ask Donna

What actually matters in this document.

Text

Medical Malpractice Liability Reform:

Legal Issues and 50-State Surveys

on Tort Reform Proposals

-name redactedLegislative Attorney

March 28, 2011

Congressional Research Service

7-....

www.crs.gov

R41661

CRS Report for Congress

Prepared for Members and Committees of Congress

Medical Malpractice Liability Reform: Legal Issues and 50-State Surveys

Summary

Medical malpractice liability is governed by state law, but Congress has the power, under the

Commerce Clause of the U.S. Constitution (Art. I, § 8, cl. 3), to enact tort reform laws that would

affect actions for medical malpractice liability brought under state law. In the 112th Congress,

H.R. 5, the Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act was

introduced by Representative Phil Gingrey on January 24, 2011, and was marked up on February

9 and 16, 2011, by the House Committee on the Judiciary. This bill would preempt state law with

respect to certain aspects of medical malpractice lawsuits. Past Congresses have considered

similar measures.

This report does not examine the effects of medical malpractice litigation or medical malpractice

liability reform on the health care system or on the cost of liability insurance premiums; rather, it

explains specific tort reform proposals that are commonly included in medical malpractice

liability reform bills, and discusses the individual arguments in favor of and against such

proposals from a legal perspective. These proposals include imposing caps on noneconomic

damages and punitive damages; permitting defendants to be held liable for no more than their

share of responsibility for a plaintiff’s injuries; requiring that damage awards be reduced by

amounts plaintiffs receive from collateral sources such as health insurance; limiting lawyers’

contingent fees; creating a federal statute of limitations; and requiring that awards of future

damages in some cases be paid periodically rather than in a lump sum. It also includes, where

appropriate, a description of H.R. 5’s provisions with respect to these categories.

An Appendix to this report includes five tables. The first table (Table A-1) is a 50-state survey of

definitions of a medical malpractice action or to whom state medical malpractice statutes apply.

The second table (Table A-2) is a 50-state survey of caps on noneconomic and punitive damages.

The third table (Table A-3) is a 50-state survey of the burden of proof standards for punitive

damages and whether a state requires a separate proceeding to determine such damages. The

fourth table (Table A-4) is a 50-state survey of whether the doctrine of joint and several liability

applies to malpractice actions in a state and whether periodic payment of damages is to be

considered in an award for a medical malpractice action. The fifth table (Table A-5) is a 50-state

survey of limits on attorneys’ contingency fees. The sixth table (Table A-6) is a 50-state survey of

statute of limitation provisions for both medical malpractice and product liability actions.

Congressional Research Service

Medical Malpractice Liability Reform: Legal Issues and 50-State Surveys

Contents

Introduction ................................................................................................................................1

The Tort of Medical Malpractice .................................................................................................1

Noneconomic Damages...............................................................................................................2

Arguments For Caps on Noneconomic Damages ...................................................................3

Arguments Against Caps on Noneconomic Damages.............................................................3

Punitive Damages .......................................................................................................................3

Arguments For Caps on Punitive Damages............................................................................5

Arguments Against Caps on Punitive Damages .....................................................................5

Periodic Payment of Damages.....................................................................................................6

Arguments For the Periodic Payment of Damages .................................................................7

Arguments Against the Periodic Payment of Damages...........................................................7

Limiting Joint and Several Liability ............................................................................................7

Arguments For Limiting Joint and Several Liability ..............................................................8

Arguments Against Limiting Joint and Several Liability ........................................................8

Abolishing the Collateral Source Rule.........................................................................................8

Arguments For Abolishing the Collateral Source Rule...........................................................9

Arguments Against Abolishing the Collateral Source Rule................................................... 10

Limiting Attorneys’ Contingent Fees ......................................................................................... 10

Arguments For Limiting Attorneys’ Contingent Fees ........................................................... 11

Arguments Against Limiting Attorneys’ Contingent Fees..................................................... 11

Creating a Federal Statute of Limitations................................................................................... 11

Tables

Table A-1. State Definitions of Medical Malpractice or Health Care Lawsuit ............................. 14

Table A-2. State Caps on Noneconomic and Punitive Damages in Medical Malpractice

Lawsuits ................................................................................................................................ 29

Table A-3. Punitive Damages—Burden of Proof, Standard, and Separate Proceeding................. 40

Table A-4. State Provisions on Joint and Several Liability and Periodic Payment of

Damages ................................................................................................................................ 50

Table A-5. State Limits on Attorneys’ Contingency Fees............................................................ 62

Table A-6. Statute of Limitations for Medical Malpractice and Product Liability Actions........... 73

Appendixes

Appendix. Fifty-State Surveys................................................................................................... 13

Congressional Research Service

Medical Malpractice Liability Reform: Legal Issues and 50-State Surveys

Contacts

Author Contact Information .................................................................................................... 107

Acknowledgments .................................................................................................................. 107

Congressional Research Service

Medical Malpractice Liability Reform: Legal Issues and 50-State Surveys

Introduction

This report does not examine the merits or possible effects of medical malpractice litigation or

medical malpractice liability reform on the health care system or on the cost of liability insurance

premiums. 1 Rather, this report explains specific tort reform proposals that are commonly

considered in medical malpractice liability reform measures, and discusses their individual

arguments in favor of and against such proposals from a legal perspective. These include

imposing caps on noneconomic damages and punitive damages; permitting defendants to be held

liable for no more than their share of responsibility for a plaintiff’s injuries; requiring that damage

awards be reduced by amounts plaintiffs receive from collateral sources such as health insurance;

limiting lawyers’ contingent fees; creating a federal statute of limitations; and requiring that

awards of future damages in some cases be paid periodically rather than in a lump sum. Where

appropriate, the report includes a brief summary of the tort reform measures included in H.R. 5.

The Tort of Medical Malpractice

Medical malpractice is a tort, which is a civil (as distinct from a criminal) wrong, other than a

breach of contract, that causes injury for which the victim may sue to recover damages. Actions in

tort derive from the common law, which means that the rules that govern them were developed by

the courts of the 50 states, and no statute is necessary in order to bring a tort action. Statutes,

however, can change the court-made rules that govern tort actions, and many states have enacted

tort reform statutes, including medical malpractice reform statutes. Congress also has the power,

under the Commerce Clause of the U.S. Constitution (Art. I, § 8, cl. 3), to enact tort reform laws

that would affect actions for medical malpractice liability brought under state law.

Medical malpractice liability arises when a health care professional engages in negligence or

commits an intentional tort. Negligence has been defined as conduct “which falls below the

standard established by law for the protection of others against unreasonable risk of harm.”2 In

most instances it arises from a failure to exercise due care, but a defendant may have carefully

considered the possible consequences of his conduct and still be found to have imposed an

unreasonable risk on others. “Negligence is conduct, and not a state of mind.”3 The following is a

traditional description of the standard of care to which doctors are held to avoid liability for

medical malpractice:

For example, advocates of medical malpractice liability reform argue that current state tort law provides a costly and

inefficient mechanism for resolving claims of health care liability and compensating injured patients, and that

increasing liability insurance premiums are forcing doctors to curtail their medical practices and to engage in excessive

“defensive medicine.” Opponents of medical malpractice reform have argued that there is a very minimal relationship

between health care costs and malpractice litigation, and that, “in reality, very few injured patients ever file a medical

negligence lawsuit.” See American Association for Justice, Medical Negligence: A Primer, February 2011 at 8. See

also David M. Studdert, Michelle M. Mello, Atul A. Gawande, Tejal K. Ghandi, Allen Kachalia, Catherin Yoon, Ann

Lousie Puopolo, Troyen A. Brenna, Claims, Errors and Compensation Payments in Medical Malpractice Litigation,

354 New Eng. J. Med. 2024 (2006). For more information on medical malpractice insurance and health reform, see

CRS Report R40862, Medical Malpractice Insurance and Health Reform, by (name redacted), (name redacted), and

(name redacted).

Restatement (Second) of Torts, § 282.

W. Page Keeton, Prosser and Keeton on Torts, § 31 (5th ed. 1984).

Congressional Research Service

Medical Malpractice Liability Reform: Legal Issues and 50-State Surveys

This legal duty requires that the physician undertaking the care of a patient possess and

exercise that reasonable and ordinary degree of learning, skill, and care commonly possessed

and exercised by reputable physicians practicing in the same locality.4

Today, however, many jurisdictions utilize some variation of the national standard of care. As one

U.S. court of appeals explained:

The skill, diligence, knowledge, means and methods [required] are not those “ordinarily” or

“generally” or “customarily” exercised or applied, but those that are “reasonably” exercised

or applied. Negligence cannot be excused on the ground that others practice the same kind

of negligence. Medicine is not an exact science and the proper practice cannot be gauged by

a fixed rule.5

While most medical malpractice actions rely on the theory of negligence, medical malpractice

liability, as noted, may arise from an intentional tort as well as from negligence. In such actions,

the practitioner is generally alleged to have intentionally acted in a fashion that ultimately caused

harm to the patient.6 The general difference between an action based in negligence and one based

in intentional tort is that “a medical procedure poorly performed might constitute negligence,

while a medical procedure correctly performed that was not consented to might constitute an

intentional tort.”7

Noneconomic Damages

Economic damages refer to monetary losses that result from an injury, such as medical expenses,

lost wages, and rehabilitation costs. Noneconomic damages consist primarily of damages for pain

and suffering. Determining the amount of noneconomic damages is traditionally subject to broad

discretion on the part of juries, which must equate two variables—money and suffering—that are

essentially incommensurable. Judges, however, have the authority to reduce damage awards that

they find excessive. 8 See Table A-2 for a 50-state survey of caps on noneconomic and punitive

damages.

Section 4 of the H.R. 5 would not limit the amount of economic damages a claimant recovers in a

health care lawsuit.9 Economic damages under the bill would be defined as monetary losses

incurred, such as past and future medical expenses, loss of past and future earnings, cost of

obtaining domestic services, loss of employment, and loss of business or employment

David M. Harney, Medical Malpractice § 21.2 (3d ed. 1993).

Nalder v. West Park Hospital, 254 F.3d 1168, 1176 (10th Cir. 2001).

Marcia M. Boumil, et al., Medical Liability 65 (2d ed. 2003).

Id.

See Michael Higgins, Homogenized Damages: Judge suggests using statistical norms to determine whether pain and

suffering awards are excessive, American Bar Association Journal (Sept. 1997) at 22.

H.R. 5, § 4(a). A “health care lawsuit,” defined as: any health care liability claim ... or action concerning the provision

of health care goods or services or any medical product in or affecting interstate commerce, brought in a State or

Federal court or pursuant to an alternative dispute resolution system against a health care provider, a health care

organization, or the manufacturer, distributor, supplier, marketer, promoter, or seller of a medical product regardless of

the theory of liability on which the claim is based, or the number of claimants, plaintiffs, defendants, or other parties, or

the number of claims or causes of action, in which the claimant alleges a health care liability claim (emphasis added).

H.R. 5 § 9(7). See Table A-1 for a 50-state survey on the definitions of medical malpractice action.

Congressional Research Service

Medical Malpractice Liability Reform: Legal Issues and 50-State Surveys

opportunities.10 However, it generally would limit noneconomic damages, if awarded, to

$250,000, regardless of the number of parties against whom the action is brought, or the number

of separate claims or actions brought with respect to the same injury.11 Noneconomic damages

would be defined as damages for physical and emotional pain, suffering, inconvenience, physical

impairment, mental anguish, disfigurement, loss of enjoyment of life, loss of society and

companionship, loss of consortium (other than loss of domestic service), hedonic damages, injury

to reputation, and all other nonpecuniary losses of any kind of nature. 12

Arguments For Caps on Noneconomic Damages

Advocates for caps on noneconomic damages argue that a lack of caps guarantees inconsistency

and unpredictability in the tort system, and forces insurers to counter this uncertainty by charging

higher premiums. Disagreement over the amount of pain and suffering damages is a major

obstacle to out-of-court settlement, thus increasing litigation and, as advocates maintain, coercing

insurers to overpay on settlements of smaller claims. Further complicating the problem, they

argue, is a tendency of juries to inflate pain and suffering awards to cover some or all of the

plaintiff’s attorney’s fees.

Arguments Against Caps on Noneconomic Damages

It has been argued that caps on noneconomic damages could have disparate effects on different

patient populations.13 For example, elderly plaintiffs and poorer individuals who are involved in a

malpractice case may not be able to claim much in economic damages, such as lost wages. Thus,

capping noneconomic damages would leave these types of plaintiffs little in damages from a

malpractice suit and therefore decreased incentive for a lawyer to represent them. Furthermore,

opponents of a cap assert that the $250,000, included in H.R. 5, was adopted by California in

1975 “at a time when pain-and-suffering awards rarely exceeded that amount,” and that more than

30 years later inflation has taken a toll. 14

Punitive Damages

Punitive damages (also called exemplary damages) are awarded not to compensate plaintiffs but

to punish and deter particularly egregious conduct on the part of defendants—generally meaning

reckless disregard for the safety of others, and more than negligence or even gross negligence.

H.R. 5, § 9(6).

H.R. 5, § 4(b). Section 11 of provides that H.R. 5 would not preempt “any State law (whether effective before, on or

after the date of enactment ... ) that specifies a particular monetary amount of compensation or punitive damages (or the

total amount of damages) that may be awarded in a health care lawsuit, regardless of whether such monetary amount is

greater or lesser than is provided for under this Act.” H.R. 5 § 11(c).

H.R. 5, § 9(15).

Health Affairs, Medical Malpractice and Errors: Issue Update, Medical Liability and the Prospect of National Tort

Reform, September 7, 2010. See also Peter Perlman, Don’t Punish the Injured, American Bar Association Journal (May

1986) at 34 (“By forever freezing compensation at today’s levels, caps discriminate against a single class of Americans

whose members are destined to suffer a lifetime of deprivation of dignity and independence.”).

An amendment to H.R. 5 to increase the $250,000 cap to $1,977,500 and index it to the Consumer Price Index

Edward was rejected during the House Committee on the Judiciary mark up. See also Felsenthal, Why a Medical Award

Cap Remains Stuck at $250,000, Wall Street Journal (Nov. 1995).

Congressional Research Service

Medical Malpractice Liability Reform: Legal Issues and 50-State Surveys

Punitive damages are noneconomic by nature, but state statutes that impose caps on punitive

damages usually treat them separately from compensatory noneconomic damages.15

The mere commission of a tort is generally not sufficient to obtain an award of punitive damages.

As one treatise states:

There must be circumstances of aggravation or outrage, such as spite or “malice,” or a

fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate

disregard of the interests of others that the conduct may be called wilful or wanton. There is

general agreement that, because it lacks this element, mere negligence is not enough, even

though it is so extreme as to be characterized as “gross,” a term of ill-defined content, which

occasionally, in a few jurisdictions, has been stretched to include the element of conscious

indifference to consequences, and so to justify punitive damages.16

Among the restrictions that have been proposed with regard to punitive damages, besides that

they be capped, are (1) that the circumstances in which they may be awarded be narrowed, (2)

that plaintiffs be required to prove by “clear and convincing” evidence that they are entitled to

them (instead of having to prove it by a mere “preponderance of the evidence.”), (3) that liability

for punitive damages be determined in a separate proceeding from liability for compensatory

damages, and (4) that punitive damages be paid in part to the government or to a fund that serves

a public purpose instead of to the plaintiff.17 See Table A-3 for a 50-state survey of the burden of

proof standards for punitive damages and whether a state requires a separate proceeding to

determine such damages.

Section 7 of H.R. 5 would limit punitive damages to the greater of $250,000 or two times the

amount of economic damages awarded, although a jury would not be informed of the limitation.18

Punitive damages would not be awarded in a health care lawsuit where a judgment for

compensatory (i.e., economic and noneconomic) damages is not rendered.19

Under the bill, a claimant would not be permitted to make a demand for punitive damages when

initially filing the health care lawsuit. Upon a motion by the claimant, a court would be permitted

to allow the claimant to amend his or her pleading only after a hearing and a finding by the court

that the claimant has established by a substantial probability that he or she will prevail on the

claim for punitive damages. 20 H.R. 5 provides that punitive damages only would be awarded if it

is proven by clear and convincing evidence that the defendant acted with malicious intent to

injure or that the defendant deliberately failed to avoid unnecessary injury that he or she knew the

In 1851, the Supreme Court wrote: “It is a well-established principle of the common law, that in actions ... for torts, a

jury may inflict what are called exemplary, punitive, or vindictive damages upon a defendant, having in view the

enormity of his offense rather than the measure of compensation to the plaintiff. We are aware that the propriety of this

doctrine has been questioned by some writers.” Day v. Woodworth, 54 U.S. (13 How.) 363, 371 (1851).

W. Page Keeton, supra note 3, § 2.

In BMW of North American, Inc. v. Gore, 517 U.S. 559, 616 (1996), the Supreme Court listed state statutes that

provide for this restriction.

H.R. 5, § 7(b)(2).

Like noneconomic damages, it is possible that a state’s law on punitive damages would not be affected. Section 11 of

H.R. 5 provides that the bill would not preempt “any State law (whether effective before, on or after the date of

enactment ... ) that specifies a particular monetary amount of compensation or punitive damages (or the total amount of

damages) that may be awarded in a health care lawsuit, regardless of whether such monetary amount is greater or

lesser than is provided for under this Act” (emphasis added). H.R. 5 § 11(c)

H.R. 5, § 7(a).

Congressional Research Service

Medical Malpractice Liability Reform: Legal Issues and 50-State Surveys

claimant would suffer.21 Malicious intent to injure would be defined as intentionally causing or

attempting to cause physical injury other than providing health care goods or services.22

After the claimant is permitted to amend his pleading to make a demand for punitive damages,

either party would be allowed to request that the trier of fact consider (1) whether punitive

damages are to be awarded and the amount of such award, and (2) the amount of punitive

damages following a determination of punitive liability. If there is a separate proceeding, then no

evidence relevant to the claim for punitive damages would be admissible in any proceeding to

determine whether compensatory damages, which cover both economic and noneconomic

damages, are to be awarded.23 In determining the amount of punitive damages, the trier of fact

would be required to consider only the following: (1) the severity of the harm caused by the

conduct of such party; (2) the duration of the conduct or any concealment of it by such party; (3)

the profitability of the conduct to such party; (4) the number of products sold or medical

procedures rendered for compensation, as the case may be, that caused the harm complained of

by the claimant; (5) any criminal penalties imposed on such party as a result of the conduct

complained of; and (6) the amount of any civil fines assessed against such party as a result of the

conduct complained of by the claimant.24

Arguments For Caps on Punitive Damages

Similar to the arguments for capping noneconomic damages, advocates argue that a lack of cap

on punitive damages contributes to instability in the insurance system, among other things.25

Critics charge that punitive damage awards in medical malpractice cases “are often unfair,

arbitrary and unpredictable, and result in overkill.... [and] that reform is needed because there has

been an outpouring of ‘the most outrageous punitive damage awards’ in medical malpractice.”26

Although it has been acknowledged that punitive damage awards occur in a small number of

cases, “they can have a devastating impact on individual defendants and can impose big costs on

the economy as a whole.”27

Arguments Against Caps on Punitive Damages

Some argue that a cap on punitive damages does not lead to a reduction in medical malpractice

insurance premiums28 and that awards are not “multimillion dollar jackpots,” because of skewed

H.R. 5, § 7(a).

H.R. 5, § 9(13)

H.R. 5, § 7(a).

H.R. 5, § 7(b).

John C. Nelson, M.D., AMA President-Elect, AMA To Congress: Our Nation’s Liability System Threatens Patients’

Access to Health Care (Oct. 2003). See also Steven Salbu, Developing Rational Punitive Damage Policies: Beyond the

Constitution, 49 Fla. L. Rev. 247 (1997).

Michael Rustad and Thomas Koenig, Reconceptualizing Punitive Damages in Medical Malpractice: Targeting

Amoral Corporations, Not “Moral Monsters,” 47 Rutgers L. Rev. 975, 978, 980-981 (1995).

Mark Thompson, Applying the Brakes to Punitives—But is There Anything to Slow Down?, American Bar

Association Journal (Sept. 1997) at 68, 69.

Adam Glassman, The Imposition of Federal Caps in Medical Malpractice Liability Actions: Will They Cure the

Current Crisis in Health Care?, 37 Akron L. Rev. 417 (2004).

Congressional Research Service

Medical Malpractice Liability Reform: Legal Issues and 50-State Surveys

data.29 Because punitive damages are meant to deter others, it has been said that they “must be

allowed to fill the gaps the criminal law leaves open.”30 Finally, plaintiffs often do not recover the

amounts that juries award, because trial judges often reduce punitive damages awards that they

find excessive. Furthermore, a recent Supreme Court decision “makes it easier for appellate

courts to reduce punitive damages.”31 It has been reported that “[s]ometimes, even before a jury

rules, a plaintiff has signed an agreement that limits how much money actually changes hands.”32

Periodic Payment of Damages

Traditionally, damages are paid in a lump sum, even if they are for future medical care or future

lost wages. In recent years, however, “attorneys for both parties in damages actions have

occasionally foregone lump-sum settlements in favor of structured settlements, which give the

plaintiff a steady series of payments over a period of time through the purchase of an annuity or

through self-funding by an institutional defendant.”33 Many forms of periodic payment statutes

exist throughout the United States, and they can involve complicated calculations, “creating

barriers for those who use the periodic payment process.”34

Proposals concerning the periodic payment of damages have been applied to future damages as

well as to all damages. An issue that may arise in connection with awards of future damages is

whether such awards should be converted to present value. Not to require such conversion “could

be a very major change, significantly reducing awards, if it is intended to allow a defendant to

pay, for example, a $1 million award over a 10-year period at $100,000 a year.”35 Yet, if a jury is

required to convert an award—an annuity with a present value of $1 million—into its present

value, then the reform doesn’t mean that much. As a practical matter, the defendant would be

paying the same amount as before, because it would have to spend $1 million for an annuity that,

as it earned interest over the years of its distribution, would yield the plaintiff more than $1

million. Had the defendant paid the plaintiff a lump sum of $1 million, then the plaintiff could

have purchased that same annuity. 36

If Congress addresses periodic payment of future damages, it may consider utilizing the Uniform

Periodic Payment of Judgments Act for guidance. For example, the uniform act includes sections

that would account for inflation and for the effect of the plaintiff’s death on unpaid amounts.

Section 5(a) of the uniform act provides that, in a trial, “evidence of future changes in the

purchasing power of the dollar is admissible on the issue of future damages.” Section 13 provides

American Association for Justice, Medical Negligence: A primer for the Nation’s Health Care Debate at 10.

Lisa M. Broman, Punitive Damages: An Appeal for Deterrence, 61 Neb. L. Rev. 651, 680 (1982).

Tania Zamorsky, Impact of High Court’s Ruling In “Leatherman”: Punitive awards reduced in four cases, National

Law Journal (Aug. 1, 2001), citing Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424 (2001), which

held that appellate courts should perform de novo review, rather than apply an abuse-of-discretion standard, when

determining whether punitive damages are excessive in violation of the Eighth Amendment.

Joseph T. Hallinan, In Malpractice Trials, Juries Rarely Have the Last Word, Wall Street Journal (Nov. 30, 2004).

Annotation, Propriety and Effect of “Structured Settlements” Whereby Damages are Paid in Installments Over a

Period of Time, and Attorneys’ Fees Arrangements in Relation Thereto, 31 ALR 4th 95, 96.

Paul J. Lesti, Structured Settlements § 21.5 (2d ed., 1993).

Victor E. Schwartz, Doctors’ Delight, Attorneys’ Dilemma, Legal Times, Health-Care Law Supplement (Feb. 28,

1994) at 30.

Id.

Congressional Research Service

Medical Malpractice Liability Reform: Legal Issues and 50-State Surveys

that “liability to a claimant for periodic payments not yet due for medical expenses terminates

upon the claimant’s death.” Damages for other economic losses, however, except in actions for

wrongful death, must be paid to the plaintiff’s estate. See Table A-4 for a 50-state survey of

whether periodic payment of damages is to be considered in an award for a medical malpractice

action.

Section 8 of the bill would permit any party to request to the court that future damages be paid by

period payment, if an award of future damages is made that equals or exceeds $50,000, without a

reduction to a present value. This would be permitted so long as the party against whom the

judgment was made has sufficient insurance or other assets to fund a periodic payment of such

judgment. H.R. 5 provides that “the court may be guided by the Uniform Periodic Payment of

Judgments Act promulgated by the National Conference of Commissioners on Uniform State

Laws.”37

Arguments For the Periodic Payment of Damages

Advocates argue that generally, both parties are benefitted by a period payment scheme because

the defendant need not immediately pay out a large sum of money, and the plaintiff is prevented

from dissipating a recovery and is provided a secure, tax-free income for a long period, without

having to assume the costs and risks of managing an investment portfolio. 38 Periodic payments

are not very different than the structured settlements that lawyers utilize in other transactions.

“Periodic payment of malpractice awards is nothing more than what lawyers have been doing for

years in structured settlements. It is workable and often the only means of providing full

compensation for an injured claimant when resources are otherwise unavailable.”39

Arguments Against the Periodic Payment of Damages

Some argue that if periodic payments will in fact benefit plaintiffs, then they will agree to them,

as they sometimes do, without the need for legislation. Some plaintiffs may prefer to invest their

awards themselves and not risk the insolvency of the defendant or the company from which the

defendant purchases an annuity.

Limiting Joint and Several Liability

Joint and several liability is the common-law rule that, if more than one defendant is found liable

for a plaintiff’s injuries, then each defendant may be held 100% liable. A plaintiff may not

recover more than once, but he may recover all his damages from fewer than all liable defendants.

Any defendant who pays more than its share of the damages is entitled to seek contribution from

other liable defendants.

This uniform act was promulgated in 1990; it was preceded by the 1980 Model Periodic Payment of Judgments Act.

Both appear in volume 14 of the UNIFORM LAWS ANNOTATED.

Annotation, supra note 33, at 96.

A. Blackwell Stieglitz, Defense Counsel Will Find the President’s Medical Malpractice Proposals So Benign as to

be Meaningless, National Law Journal (Jan. 17, 1994) at 27.

Congressional Research Service

Medical Malpractice Liability Reform: Legal Issues and 50-State Surveys

Some states have eliminated joint and several liability, making each defendant liable only for its

share of responsibility for the plaintiff’s injury. Other states have adopted compromise positions

such as eliminating joint and several liability only for noneconomic damages, presumably with

the view that it is more important for the plaintiff to recover all his economic damages than all his

noneconomic damages; or, eliminating joint and several liability only for defendants responsible

for less than a specified percentage (e.g., 50%) of the plaintiff’s harm, presumably with the view

that it is especially unfair for such defendants to be held liable for up to 100% of the damages.

See Table A-4 for a 50-state survey of whether the doctrine of joint and several liability applies to

malpractice actions in a state.

Section 4 of the bill, which primarily addresses a cap on noneconomic damages, also provides

that where there are multiple defendants, the bill would make each party responsible for an

amount of damages that is in direct proportion to its individual percentage of fault, and it would

not make an individual liable for the share of any other person. The trier of fact would determine

the responsibility of each party for the claimant’s harm. 40

Arguments For Limiting Joint and Several Liability

Advocates of abolishing or limiting joint and several liability argue that it

frequently operates in a highly inequitable manner—sometimes making defendants with only

a small or even de minimis percentage of fault liable for 100% of plaintiff’s damage.

Accordingly, joint and several liability in the absence of concerted action has led to the

inclusion of many ‘deep pocket’ defendants such as governments, larger corporations, and

insured entities whose involvement is only tangential and who probably would not be joined

except for the existence of joint and several liability. 41

Arguments Against Limiting Joint and Several Liability

Advocates of joint and several liability cite the reason that the common law adopted it: it is

preferable for a wrongdoer to pay more than its share of the damages than for an injured plaintiff

to recover less than the full compensation to which he is entitled.

Abolishing the Collateral Source Rule

The collateral source rule is the common-law rule that allows an injured party to recover damages

from the defendant even if he is also entitled to receive them from a third party. Common third

parties, that is, collateral sources, include a health insurance company, an employer, or the

government. To abolish the collateral source rule would be to allow or require courts to reduce

damages by amounts a plaintiff receives or is entitled to receive from collateral sources.

H.R. 5, § 4(d).

Report of the Tort Policy Working Group on the Causes, Extent and Policy Implications of the Current Crisis in

Insurance Availability and Affordability 64 (Feb. 1986).

Congressional Research Service

Medical Malpractice Liability Reform: Legal Issues and 50-State Surveys

Often a collateral source, such as a health insurer or the government, has a right of subrogation

against the tortfeasor (the person responsible for the injury).42 This means that the collateral

source takes over the injured party’s right to sue the tortfeasor, for up to the amount the collateral

source owes or has paid the injured party. Though the collateral source rule may enable the

plaintiff to recover from both his insurer and the defendant, if there is subrogation, the plaintiff

must reimburse his insurer the amount it paid him. If the collateral source rule were eliminated,

then the defendant would not have to pay the portion of damages covered by a collateral source,

and the collateral source would apparently not be able to recover the amount it paid the plaintiff

through subrogation. In the medical malpractice context, therefore, eliminating the collateral

source rule would benefit liability insurers at the expense of health insurers.

Some jurisdictions, however, have abolished the collateral source rule only in cases in which

there is no right of subrogation. In jurisdictions where there is no right of subrogation, the

collateral source would be unaffected by elimination of the collateral source rule (i.e., the health

insurer would still not recover its money), and the defendant would benefit by not having to pay

the plaintiff. 43

Some proposals to abolish the collateral source rule have taken into account that the plaintiff may

have paid insurance premiums for his collateral source benefit. Such proposals, instead of

allowing a damage award to be reduced by the full amount of a collateral source benefit, allow it

to be reduced by the full amount of a collateral source benefit minus the amount the plaintiff paid

to secure that benefit. Other proposals would allow the defendant to introduce evidence of

collateral source payments, but do not specify whether the jury must reduce economic damages

awards by the amount of such payments.

Eliminating the collateral source rule could also indirectly reduce noneconomic damages awards,

because juries often set such awards as a multiple of economic damages. If the collateral source

rule were abolished, then the plaintiff could disclose to the jury only her out-of-pocket expenses,

or she could disclose her total economic damages before collateral source payments are deducted.

If the former, then the plaintiff might receive a lesser award of noneconomic damages.

H.R. 5 included a provision on collateral source benefits and introduction of evidence. An

amendment that was adopted during the House Committee on the Judiciary mark-up eliminated

this provision from the bill. 44

Arguments For Abolishing the Collateral Source Rule

Advocates of abolishing the collateral source rule object to the fact that it “permits the plaintiff to

obtain double recovery for certain components of his damages award,” unless the collateral

The Medical Care Recovery Act, 42 U.S.C. § 2651(a), provides: “In any case in which the United States is

authorized or required by law to furnish or pay for hospital, medical, surgical, or dental care and treatment ... to a

person who is injured or suffers a disease ... under circumstances creating a tort liability upon some third person ..., the

United States shall have a right to recover ... from said third person, or that person’s insurer, the reasonable value of the

care and treatment ... and shall as to this right be subrogated to any right or claim that the injured or diseased person ...

has against such third person to the extent of the reasonable value of the care and treatment....”

Michael F. Flynn, Private Medical Insurance and the Collateral Source Rule: A Good Bet?, 22 U. Told. L. Rev. 39,

49 (1990).

Amendment 14 to H.R. 5.

Congressional Research Service

Medical Malpractice Liability Reform: Legal Issues and 50-State Surveys

source is subrogated to the plaintiff’s claim against the defendants.45 Abolishing the collateral

source rule will reduce damage awards without denying plaintiffs full recovery of their damages.

Arguments Against Abolishing the Collateral Source Rule

Advocates of the collateral source rule cite the reason that the common law adopted it: it is

preferable for the victim rather than the wrongdoer to profit from the victim’s prudence (as in

buying health insurance) or good fortune (in having some other collateral source available). One

commentator has also noted that, when the collateral source is the government, and the benefit it

provides are future services, such as physical therapy, there is no guarantee that it will provide

such services for as long as they are needed, as government programs may be cut back.46

Limiting Attorneys’ Contingent Fees

A contingent fee is one in which a lawyer, instead of charging an hourly fee for his services,

agrees, in exchange for representing a plaintiff in a tort suit, to accept a percentage of the

recovery if the plaintiff wins or settles, but to receive nothing if the plaintiff loses. Payment is

thus contingent upon there being a recovery. Plaintiffs agree to this arrangement in order to afford

representation without paying anything out-of-pocket, and lawyers agree to it because the

percentage they receive—usually from 33⅓% to 40%—generally amounts to more than an hourly

fee would. Many states regulate contingent fees in medical malpractice cases in one or more of

the following ways: “(1) establishment of a sliding scale for the attorney fees; (2) establishment

of a maximum percentage of the award that may be paid for attorney fees; and (3) provision for

court review of the reasonableness of the attorney fees.”47

Legislation to limit contingency fees might consider specifying whether plaintiffs’ attorneys

would be allowed to add costs, including expert-witness fees, travel, and photocopying on top of

the cap, or whether costs would only be recovered from the amount the attorney recoups under

the cap. In medical malpractice cases, where costs can skyrocket, the difference is significant. See

Table A-5 for a 50-state survey of limits on attorneys’ contingency fees.

Section 5 of the H.R. 5 would empower the court to supervise the arrangements for the payment

of damages to protect against conflicts of interest (e.g., a claimant’s attorney having a financial

stake in the outcome by virtue of a contingency fee). The court would have the power to restrict

the payment of a claimant’s damage recovery to such attorney, and to redirect the damages to the

claimant.

The bill would impose a sliding scale for attorney fees. In any health care lawsuit, the total of all

contingency fees for representing all claimants would not exceed (1) 40% of the first $50,000

recovered by the claimant(s); (2) 33⅓ % of the next $50,000 recovered by the claimant(s); (3)

25% of the next $500,000 recovered by the claimant(s); and (4) 15% of any amount where the

Report of the Tort Policy Working Group, supra note 35.

Barry J. Nace and Virginia C. Nelson, Plaintiffs’ Lawyers Have Already Seen Many of the Proposed Tort Reforms in

the States, and Find Them Disastrous for Clients, National Law Journal (Jan. 17, 1994) at 29.

See National Conference of State Legislatures, State Medical Malpractice Laws 2010, available at

http://www.ncsl.org/default.aspx?tabid=18516.

Congressional Research Service

Medical Malpractice Liability Reform: Legal Issues and 50-State Surveys

recovery is in excess of $600,000. The sliding scale would be applicable regardless of whether

the recovery is by judgment, settlement, mediation, arbitration, or any other form of alternative

dispute resolution. 48

Arguments For Limiting Attorneys’ Contingent Fees

Advocates of limiting contingent fees argue that such fees cause juries to inflate verdicts, result in

windfalls for lawyers, and prompt lawyers to file frivolous suits in the hope of settling. They also

argue that, where there is no dispute as to liability, but only as to damages, there is no

contingency and therefore no justification for contingent fees. One study proposed that, if a

defendant makes a prompt settlement offer, then counsel fees be “limited to hourly rate charges

and capped at 10% of the first $100,000 of the offer and 5% of any greater amounts.... When

plaintiffs reject defendants’ early offers, contingency fees may only be charged against net

recoveries in excess of such offers.”49

Arguments Against Limiting Attorneys’ Contingent Fees

Opponents of limiting contingent fees argue that such fees enable injured persons, faced with

medical bills and lost wages, to finance lawsuits that they otherwise could not afford—especially

if their injuries have disabled them from working. They argue that lawyers are unlikely to file

frivolous lawsuits if they stand to recover nothing if they lose, 50 and that studies have shown that

contingent fees do not encourage frivolous lawsuits.51 Finally, they note, “[a]n hourly fee

arrangement [such as defendants’ lawyers use] can encourage delay, inefficiency, and unnecessary

action,” whereas “[a] contingent fee is an added inducement for a lawyer to be efficient and

expeditious.”52

Creating a Federal Statute of Limitations

The statute of limitations—the period within which a lawsuit must be filed—for medical

malpractice suits under state law is typically two or three years, starting on the date of injury.

Sometimes, however, the symptoms of an injury do not appear immediately, or even for years

after, malpractice occurs. Many states therefore have adopted a “discovery” rule, under which the

statute of limitations starts to run only when the plaintiff discovers, or in the exercise of

reasonable diligence, should have discovered, his injury—or, sometimes, his injury and its cause.

Plaintiffs would favor allowing a statute of limitations to run only upon discovery of an injury

and its cause because it may take additional time after symptoms become manifest to discover

that an injury was caused by medical malpractice. See Table A-6 for a 50-state survey on general

H.R. 5, § 5.

The Manhattan Institute, Rethinking Contingency Fees 28, 29 (1994).

Stephen Daniels and Joanne Martin, It’s Deja Vu All Over Again: Plaintiff’s Lawyers and the Evolution of Tort Law

and Practice in Texas, American Bar Foundation (Mar. 2009), http://www.americanbarfoundation.org/research/project/

20.

See studies cited in Association of Trial Lawyers of American, Keys to the Courthouse: Quick Facts on the

Contingent Fee System (1994) at 4, 5.

Id. at 6.

Congressional Research Service

Medical Malpractice Liability Reform: Legal Issues and 50-State Surveys

statute of limitation provisions for both medical malpractice and product liability actions, as some

tort reform proposals’ provisions would affect the statute of limitations for both types of actions.

Section 3 of H.R. 5 would require a health care lawsuit to be brought within either three years

after the date of manifestation of the injury, or within one year after the claimant discovers, or

through the use of reasonable diligence should have discovered, the injury, whichever occurs first.

No lawsuit could be brought after three years of the date of manifestation of the injury, but such a

limitation could be extended upon a showing of (1) proof of fraud; (2) intentional concealment; or

(3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the

person of the injured party. For minors, the action must be commenced within three years from

the date of the manifestation of injury, except that actions by a minor under the full age of six

must be commenced within three years of the manifestation of the injury or prior to the minor’s

eighth birthday, whichever provides a longer period. In the event of fraud, the statute of

limitations for a minor could be tolled. 53

To toll the statute of limitations means to stop its running.

Congressional Research Service

Medical Malpractice Liability Reform: Legal Issues and 50-State Surveys

Appendix. Fifty-State Surveys

Table A-1 sets forth the definition of a medical malpractice action in the 50 states. As not all

states use the words “medical malpractice action” in their statutes, this table was compiled by

using variations and combinations of the terms medical, health care, liability, malpractice,

negligence, injury, and claim. This table does not cover the definition of malpractice actions

where a state had a separate statutory scheme for other medical specialties, for example, dentistry.

Where possible, this table provides state definitions of medical malpractice or health care liability

action and to whom such provisions apply. Where a state had provisions on medical liability tort

reform but no explicit definition of a medical malpractice action, the table reflects to which

groups these provisions apply to give a sense of the scope of the parties that are covered under the

medical malpractice statutes. For example, if the state had a specific statute of limitation on

actions for medical malpractice, the table provides the definition of “health care provider” as used

applicable to that statute. Where “no statute found” is entered means that there may have been

state statutes governing medical malpractice actions, but that CRS could not identify a specific

provision that defines an action for medical malpractice, or similar phrases, or a specific

definition of the individuals to whom the provisions apply.

Congressional Research Service

Medical Malpractice Liability Reform: Legal Issues and 50-State Surveys

Table A-1. State Definitions of Medical Malpractice or Health Care Lawsuit

State

Alabama

Definition

Ala. Code § 6-5-481 (2011) Medical Liability Actions: Definitions.

“Medical liability” means a finding by a judge, jury, or arbitration panel that a physician,

dentist, medical institution, or other health care provider did not meet the applicable

standard of care, and that such failure was the proximate cause of the injury complained of,

resulting in damage to the patient.

Alaska

Alaska Stat. § 09.55.560 (2011) Medical Malpractice Actions: Definitions.

“Professional negligence” means a negligent act or omission by a health care provider in

rendering professional services.

“Health care provider” means an acupuncturist licensed under AS 08.06; an audiologist or

speech-language pathologist licensed under AS 08.11; a chiropractor licensed under AS 08.20;

a dental hygienist licensed under AS 08.32; a dentist licensed under AS 08.36; a nurse licensed

under AS 08.68; a dispensing optician licensed under AS 08.71; a naturopath licensed under

AS 08.45; an optometrist licensed under AS 08.72; a pharmacist licensed under AS 08.80; a

physical therapist or occupational therapist licensed under AS 08.84; a physician or physician

assistant licensed under AS 08.64; a podiatrist; a psychologist and a psychological associate

licensed under AS 08.86; a hospital as defined in AS 47.32.900, including a governmentally

owned or operated hospital; an employee of a health care provider acting within the course

and scope of employment; an ambulatory surgical facility and other organizations whose

primary purpose is the delivery of health care, including a health maintenance organization,

individual practice association, integrated delivery system, preferred provider organization or

arrangement, and a physical hospital organization.

Arizona

Ariz. Rev. Stat. § 12-561 (2011) Actions Relating To Health Care: Definitions.

“Medical malpractice action” or “cause of action for medical malpractice“ means an action for

injury or death against a licensed health care provider based upon such provider’s alleged

negligence, misconduct, errors or omissions, or breach of contract in the rendering of health

care, medical services, nursing services or other health-related services or for the rendering

of such health care, medical services, nursing services or other health-related services,

without express or implied consent including an action based upon the alleged negligence,

misconduct, errors or omissions or breach of contract in collecting, processing or distributing

whole human blood, blood components, plasma, blood fractions or blood derivatives.

“Licensed health care provider” means both: (a) a person, corporation or institution or

certified by the state health care, medical services or health-related services and includes the

officers, employees and agents thereof working under the supervision of such person,

corporation or institution in providing such health care, medical services, nursing services or

other health-related services; (b) a federally licensed, regulated or registered blood bank,

blood center or plasma center collecting, processing or distributing whole human blood,

blood components, plasma, blood fractions or derivatives for use by licensed health care

provider and includes officers, employees, agents working under the supervision of the blood

bank, blood center or plasma center.

Congressional Research Service

Medical Malpractice Liability Reform: Legal Issues and 50-State Surveys

State

Arkansas

Definition

Ark. Code Ann. § 16-114-201 (2010) Actions for Medical Injury: Definitions.

As used in this subchapter, unless the context otherwise requires:

“Action for medical injury” means any action against a medical care provider, whether based

in tort, contract, or otherwise, to recover damages on account of medical injury;

“Medical care provider” means a physician, certified registered nurse anesthetist, physician’s

assistant, nurse, optometrist, chiropractor, physical therapist, dentist, podiatrist, pharmacist,

veterinarian, hospital, nursing home, community mental health center, psychologist, clinic, or

not-for-profit home health care agency licensed by the state or otherwise lawfully providing

professional medical care or services, or an officer, employee or agent thereof acting in the

course and scope of employment in the providing of such medical care or medical services;

and

“Medical injury” or “injury” means any adverse consequences arising out of or sustained in

the course of the professional services being rendered by a medical care provider, whether

resulting from negligence, error, or omission in the performance of such services; or from

rendition of such services without informed consent or in breach of warranty or in violation

of contract; or from failure to diagnose; or from premature abandonment of a patient or of a

course of treatment; or from failure to properly maintain equipment or appliances necessary

to the rendition of such services; or otherwise arising out of or sustained in the course of

such services.

California

Cal. Civ. Code §§ 3333.1, 3333.2 (2010) Collateral Benefits and Noneconomic

Losses in Medical Malpractice Actions.

“Professional negligence” means a negligent act or omission to act by a health care provider

in the rendering of professional services, which act or omission is the proximate cause of a

personal injury or wrongful death, provided that such services are within the scope of

services for which the provider is licensed and which are not within any restriction imposed

by the licensing agency or licensed hospital.

“Health care provider” means any person licensed or certified pursuant to Division 2

(commencing with Section 500) of the Business and Professions Code, or licensed pursuant

to the Osteopathic Initiative Act, or the Chiropractor Initiative Act, or licensed to Chapter

2.5 (commencing with Section 1440) of Division 2 of the Health and Safety Code; and any

clinic, health dispensary, or health facility, licensed pursuant to Division 2 (commencing with

Section 1200) of the Health and Safety Code. Health care provider includes the legal

representatives of a health care provider.

See also Cal. Civ. Proc. Code §§ 340.5, 364, 667.7, 1295 (2010)

Colorado

No statute found.

Congressional Research Service

Medical Malpractice Liability Reform: Legal Issues and 50-State Surveys

State

Connecticut

Definition

Conn. Gen. Stat. § 52-184c (2010) Standard of Care in Negligence Action Against

Health Care Provider. Qualifications of Expert Witness.

In any civil action to recover damages resulting from personal injury or wrongful death

occurring on or after October 1, 1987, in which it is alleged that such injury or death resulted

from the negligence of a health care provider, as defined in section 52-184b, the claimant shall

have the burden of proving by the preponderance of the evidence that the alleged actions of

the health care provider represented a breach of the prevailing professional standard of care

for that health care provider. The prevailing professional standard of care for a given health

care provider shall be that level of care, skill and treatment which, in light of all relevant

surrounding circumstances, is recognized as acceptable and appropriate by reasonably

prudent similar health care providers.

Conn. Gen. Stat. § 52-184b (2010) Failure to bill and advance payments

inadmissible in malpractice cases.

For the purposes of this section, “health care provider” means any person, corporation,

facility or institution licensed by this state to provide health care or professional services, or

an officer, employee or agent thereof acting in the course and scope of his employment.

Delaware

Del. Code Ann. tit. 18, § 6801 (2011) Health Care Medical Negligence Insurance

Litigation: Definitions.

“Medical negligence” means any tort or breach of contract based on health care or

professional services rendered, or which should have been rendered, by a health care

provider to a patient. The standard of skill and care required of every health care provider in

rendering professional services or health care to a patient shall be that degree of skill and

care ordinarily employed in the same or similar field of medicine as defendant, and the use of

reasonable care and diligence.

District of

Columbia

No statute found.

Florida

Fla. Stat. Ann. § 766.102 (2011) Medical Negligence; Standards of Recovery;

Expert Witness.

In any action for recovery of damages based on the death or personal injury of any person in

which it is alleged that such death or injury resulted from the negligence of a health care

provider as defined in s. 766.202(4), the claimant shall have the burden of proving by the

greater weight of evidence that the alleged actions of the health care provider represented a

breach of the prevailing professional standard of care for that health care provider. The

prevailing professional standard of care for a given health care provider shall be that level of

care, skill, and treatment which, in light of all relevant surrounding circumstances, is

recognized as acceptable and appropriate by reasonably prudent similar health care providers.

Fla. Stat. Stat. § 766.202 (2011) Medical Malpractice And Related Matters:

Definitions.

“Health care provider” means any hospital, ambulatory surgical center, or mobile surgical

facility as defined and licensed under chapter 395; a birth center licensed under chapter 383;

any person licensed under chapter 458, chapter 459, chapter 460, chapter 461, chapter 462,

chapter 463, part I of chapter 464, chapter 466, chapter 467, or chapter 486; a clinical lab

licensed under chapter 483; a health maintenance organization certificated under part I of

chapter 641; a blood bank; a plasma center; an industrial clinic; a renal dialysis facility; or a

professional association partnership, corporation, joint venture, or other association for

professional activity by health care providers.

Congressional Research Service

Medical Malpractice Liability Reform: Legal Issues and 50-State Surveys

State

Georgia

Definition

Ga. Code Ann. § 9-3-70 (2011) Action for Medical Malpractice Defined.

As used in this article, the term “action for medical malpractice” means any claim for damages

resulting from the death of or injury to any person arising out of:

(1) Health, medical, dental, or surgical service, diagnosis, prescription, treatment, or care

rendered by a person authorized by law to perform such service or by any person acting

under the supervision and control of the lawfully authorized person; or

(2) Care or service rendered by any public or private hospital, nursing home, clinic, hospital

authority, facility, or institution, or by any officer, agent, or employee thereof acting within

the scope of his employment.

Ga. Code Ann. § 9-9-60 (2011) Arbitration: “Medical malpractice claim” defined.

For the purposes of this article, the term “medical malpractice claim” means any claim for

damages resulting from the death of or injury to any person arising out of:

(1) Health, medical, dental, or surgical service, diagnosis, prescription, treatment, or care,

rendered by a person authorized by law to perform such service or by any person acting

under the supervision and control of a lawfully authorized person; or

(2) Care or service rendered by any public or private hospital, nursing home, clinic, hospital

authority, facility, or institution, or by any officer, agent, or employee thereof acting within

the scope of his employment.

See also Ga. Code Ann. §§ 9-11-8, 9-11-54 (2011)

Hawaii

Haw. Rev. Stat. Ann. § 671-1 (2011) Medical Torts: Definitions.

“Medical tort” means professional negligence, the rendering of professional service without

informed consent, or an error or omission in professional practice, by a health care provider,

which proximately causes death, injury, or other damage to a patient.

“Health care provider” means physician, osteopathic physician, surgeon, or physician assistant

licensed under chapter 453, a podiatrist licensed under 463E, a health care facility as defined

in section 323D-2, and the employees of any of them. Health care provider shall not mean

any nursing institution, nursing service conducted by and for those who rely upon treatment

by spiritual means through prayer alone, or employees of the institution or service.

Idaho

Idaho Code Ann. § 6-1012 (2011) Medical Malpractice: Proof of Community

Standard of Health Care Practice in Malpractice Case.

In any case, claim or action for damages due to injury to or death of any person, brought

against any physician and surgeon or other provider of health care, including, without

limitation, any dentist, physicians’ assistant, nurse practitioner, registered nurse, licensed

practical nurse, nurse anesthetist, medical technologist, physical therapist, hospital or nursing

home, or any person vicariously liable for the negligence of them or any of them, on account

of the provision of or failure to provide health care or on account of any matter incidental or

related thereto, such claimant or plaintiff must, as an essential part of his or her case in chief,

affirmatively prove by direct expert testimony and by a preponderance of all the competent

evidence, that such defendant then and there negligently failed to meet the applicable

standard of health care practice of the community in which such care allegedly was or should

have been provided, as such standard existed at the time and place of the alleged negligence

of such physician and surgeon, hospital or other such health care provider and as such

standard then and there existed with respect to the class of health care provider that such

defendant then and there belonged to and in which capacity he, she or it was functioning.

Such individual providers of health care shall be judged in such cases in comparison with

similarly trained and qualified providers of the same class in the same community, taking into

account his or her training, experience, and fields of medical specialization, if any. If there be

no other like provider in the community and the standard of practice is therefore

indeterminable, evidence of such standard in similar Idaho communities at said time may be

considered. As used in this act, the term “community” refers to that geographical area

Congressional Research Service

Medical Malpractice Liability Reform: Legal Issues and 50-State Surveys

State

Definition

ordinarily served by the licensed general hospital at or nearest to which such care was or

allegedly should have been provided.

Illinois

735 Ill. Comp. Stat. Ann. § 5/2-1704 (2011) Medical Malpractice Action.

As used in this Part, “medical malpractice action” means any action, whether in tort, contract

or otherwise, in which the plaintiff seeks damages for injuries or death by reason of medical,

hospital, or other healing art malpractice. The term “healing art” shall not include care and

treatment by spiritual means through prayer in accord with the tenets and practices of a

recognized church or religious denomination.

Indiana

Ind. Code Ann. § 34-18-2-18 (2011) Malpractice.

“Malpractice” means a tort or breach of contract based on health care or professional

services that were provided, or that should have been provided, by a health care provider, to

a patient.

Ind. Code Ann. § 34-18-2-14 (2011) Health Care Provider.

“Health care provider” means an individual, a partnership, a limited liability company, a

corporation, a professional corporation, a facility, or an institution licensed or legally

authorized by this state to provide health care or professional services as a physician,

psychiatric hospital, hospital, health facility, emergency ambulance service ( IC 16-18-2-107),

dentist, registered or licensed practical nurse, physician assistant, midwife, optometrist,

podiatrist, chiropractor, physical therapist, respiratory care practitioner, occupational

therapist, psychologist, paramedic, emergency medical technician-intermediate, emergency

medical technician-basic advanced, or emergency medical technician, or a person who is an

officer, employee, or agent of the individual, partnership, corporation, professional

corporation, facility, or institution acting in the course and scope of the person’s employment

It also includes: college, university, or junior college that provides health care to a student,

faculty member, or employee, and the governing board or a person who is an officer,

employee, or agent of the college, university, or junior college acting in the course and scope

of the person’s employment; a blood bank, community mental health center, community

mental retardation center, community health center, or migrant health center; a home health

agency (as defined in IC 16-27-1-2); a health maintenance organization (as defined in IC 2713-1-19)’; a health care organization whose members, shareholders, or partners are health

care providers under subdivision (1); a corporation, limited liability company, partnership, or

professional corporation not otherwise qualified under this section that, as one its functions,

provides health care, or is organized or registered under state law, and is determined to be

eligible for coverage as a health care provider under this article for its health care function.

Iowa

Iowa Code Ann. § 614.1 (2010) Limitations on Actions. Period.

Limitation on time for “malpractice” which is an action founded on injuries to persons for

wrongful death against any physician and surgeon, osteopathic physician and surgeon, dentist,

podiatrist, physician, optometrist, pharmacist, chiropractor, physician assistant, or nurse,

licensed under chapter 147, or hospital licensed under chapter 135B, arising out of patient

care.

Kansas

No statute found.

Congressional Research Service

Medical Malpractice Liability Reform: Legal Issues and 50-State Surveys

State

Kentucky

Definition

Ky. Rev. Stat. Ann. § 304.40-260 (2010) Health Care Malpractice Insurance

Claims: Definitions.

As used in KRS 304.40-250 to 304.40-320, the following words and terms shall be defined as

follows:

“Malpractice” means any tort or breach of contract based on health care or professional

services rendered, or which should have been rendered, by a health care provider to the

patient,

“Health care” means any act, or treatment performed or furnished, or which should have

been performed or furnished, by any health care provider to a patient during that patient’s

care, treatment, or confinement for a physical or mental condition.

Louisiana

La. Rev. Stat. Ann. 40:1299.41 (2011) Medical Malpractice: Definitions and general

applications.

“Malpractice” means any unintentional tort or any breach of contract based on health care or

professional services rendered, or which should have been rendered, by a health care

provider, to a patient, including failure to render services timely and the handling of a patient,

including loading and unloading of a patient, and also includes all legal responsibility of a health

care provider arising from acts or omissions during the procurement of blood or blood

components, in the training or supervision of health care providers, or from defects in blood,

tissue, transplants, drugs, and medicines, or from defects in or failures of prosthetic devices

implanted in or used on or in the person of a patient.

Maine

No statute found.

Maryland

Md. Code Cts. & Jud. Proc. Code Ann. § 3-2A-01 (2011) Health Care Malpractice

Claims: Definitions.

“Medical injury” means injury arising or resulting from the rendering or failure to render

health care.

“Health care provider” means a hospital, a related institution as defined in § 19-301 of the

Health - General Article, a medical day care center, a hospice care program, an assisted living

program, a freestanding ambulatory care facility as defined in § 19-3B-01 of the Health General Article, a physician, an osteopath, an optometrist, a chiropractor, a registered or

licensed practical nurse, a dentist, a podiatrist, a psychologist, a licensed certified social

worker-clinical, and a physical therapist, licensed or authorized to provide one or more

health care services in Maryland.

“Health care provider” does not include any nursing institution conducted by and for those

who rely upon treatment by spiritual means through prayer alone in accordance with the

tenets and practices of a recognized church or religious denomination.

Congressional Research Service

Medical Malpractice Liability Reform: Legal Issues and 50-State Surveys

State

Massachusetts

Definition

Mass. Ann. Laws, ch. 231, § 60B (2010) Tribunal for Screening of Medical

Malpractice Claims; Evidence Considered; Subpoena Power; Witnesses; Bond

Requirements; Provider of Health Care Defined.

Every action for malpractice, error or mistake against a provider of health care shall be heard

by a tribunal consisting of a single justice of the superior court, a physician licensed to

practice medicine in the commonwealth under the provisions of section two of chapter one

hundred and twelve and an attorney authorized to practice law in the commonwealth, at

which hearing the plaintiff shall present an offer of proof and said tribunal shall determine if

the evidence presented if properly substantiated is sufficient to raise a legitimate question of

liability appropriate for judicial inquiry or whether the plaintiff’s case is merely an unfortunate

medical result.

For the purposes of this section, a provider of health care shall mean a person, corporation,

facility or institution licensed by the commonwealth to provide health care or professional

services as a physician, hospital, clinic or nursing home, dentist, registered or licensed nurse,

optometrist, podiatrist, chiropractor, physical therapist, psychologist, social worker, or

acupuncturist, or an officer, employee or agent thereof acting in the course and scope of his

employment.

Michigan

Mich. Comp. Laws. Serv. § 600.2912a (2011) Action alleging malpractice; Burden

of Proof.

In an action alleging malpractice, the plaintiff has the burden of proving that in light of the

state of the art existing at the time of the alleged malpractice:

(a) The defendant, if a general practitioner, failed to provide the plaintiff the recognized

standard of acceptable professional practice or care in the community in which the defendant

practices or in a similar community, and that as a proximate result of the defendant failing to

provide that standard, the plaintiff suffered an injury.

(b) The defendant, if a specialist, failed to provide the recognized standard of practice or care

within that specialty as reasonably applied in light of the facilities available in the community

or other facilities reasonably available under the circumstances, and as a proximate result of

the defendant failing to provide that standard, the plaintiff suffered an injury.

Minnesota

Minn. Stat. Ann. § 541.076 (2010) Health Care Provider Action: Limitation of

Time.

For purposes of this section, “health care provider” means a physician, surgeon, dentist,

occupational therapist, or other health care professionals as defined in section 145.61,

hospital, treatment or facility.

Mississippi

Mississippi Code Ann. § 15-1-36 (2010) Actions for Medical Malpractice:

Limitation of Time.

Specific time limitation for an action against a licensed physician, osteopath, dentist, hospital,

nurse, pharmacist, podiatrist, optometrist or chiropractor for injuries or wrongful death

arising out of course of medical, surgical, or other professional services.

Congressional Research Service

Medical Malpractice Liability Reform: Legal Issues and 50-State Surveys

State

Missouri

Definition

Missouri § 516.015 (2011) Statute of Limitations: Actions against health care

providers (medical malpractice).

Actions against physicians, hospitals, dentists, registered or licensed practical nurses,

optometrists, podiatrists, pharmacists, chiropractors, professional physical therapists, and any

other entity providing health care services and all employees of any of the foregoing acting in

the course and scope of their employment, for damages for malpractice, negligence, error or

mistake related to health care.

Missouri § 538.205 (2011) Tort Actions Based on Improper Health Care.

Definitions.

“Health care provider” means any physician, hospital, health maintenance organization,

ambulatory surgical center, long-term facility, dentist, registered or licensed practical nurse,

optometrist, podiatrist, pharmacist, chiropractor, professional physical therapist, psychologist,

physician-in-training, and any other entity that provides health care services under the

authority of a license or certificate.

“Health care services” means any services rendered by a health care provider in the ordinary

course of the health care provider’s profession, or, if the health care provider is an

institution, in the ordinary course of furthering the purposes for which is organized.

Professional services shall include, but are not limited to, transfer to a patient of goods or

services incidental to or pursuant to the practice of the health care provider’s profession.

Montana

Mont. Code Ann. § 25-9-411 (2010) (Temporary)Medical malpractice

Noneconomic Damages Limitation.

“Malpractice claim” means a claim based on a negligent act or omission by a health care

provider in the rendering of professional services that is the proximate cause of a personal

injury or wrongful death.

Mont. Code Ann. § 27-6-103 (2010) Montana Medical Legal Panel Act: Definitions.

“Malpractice claim” means a claim or potential claim of a claimant against a health care

provider for medical or dental treatment, lack of medical or dental treatment, or other

alleged departure from accepted standards of health care that proximately results in damage

to the claimant, whether the claimant’s claim or potential claim sounds in tort or contract,

and includes but is not limited to allegations of battery or wrongful death.

Nebraska

Neb. Rev. Stat. Ann. § 44-2810 (2010) Nebraska Hospital-Medical Liability Act:

Malpractice or Professional Negligence, Defined.

Malpractice or professional negligence shall mean that, in rendering professional services, a

health care provider has failed to use the ordinary and reasonable care, skill, and knowledge

ordinarily possessed and used under like circumstances by members of his profession engaged

in a similar practice in his or in similar localities. In determining what constitutes reasonable

and ordinary care, skill, diligence on the part of a health care provider in a particular

community, the test shall be that which health care providers, in the same community or

similar communities and engaged in the same or similar lines of work, would ordinarily

exercise and devote to the benefit of their patients under like circumstances.

Neb. Rev. Stat. Ann. § 44-2803 (2010) Nebraska Hospital-Medical Liability Act;

Health Care Provider, Defined.

Health care provider means: (1) a physician; (2) a certified registered nurse anesthetist; (3) an

individual, partnership, limited liability company, corporation, association, facility, institution,

or other entity authorized by law to provide professional medical services by physicians or

certified nurse anesthetists; (4) a hospital; or (5) a personal representative as defined in

section 30-2209 who is successor or assignee of any health care provider designated in

subdivisions (1)-(4).

Congressional Research Service

Medical Malpractice Liability Reform: Legal Issues and 50-State Surveys

State

Nevada

Definition

Nev. Rev. Stat. Ann. § 41A.009 (2010) Actions for Medical or Dental Malpractice:

“Medical malpractice” Defined.

“Medical malpractice” means the failure of a physician, hospital or employee of a hospital, in

rendering services, to use the reasonable care, skill or knowledge ordinarily used under

similar circumstances.

Nev. Rev. Stat. Ann. § 630A.060 (2010) Homeopathic Medicine: “Malpractice”

Defined.

“Malpractice” means failure on the part of a homeopathic physician to exercise the degree of

care, diligence and skill ordinarily exercised by homeopathic physicians in good standing in the

community in which he or she practices. As used in this section, “community” embraces the

entire area customarily served by homeopathic physicians among whom a patient may

reasonably choose, not merely the particular area inhabited by the patients of that individual

physician or the particular city or place where the homeopathic physician has an office.

Nev. Rev. Stat. Ann. § 633.071 (2010) Osteopathic Medicine: “Malpractice”

Defined.

“Malpractice” means failure on the part of an osteopathic physician to exercise the degree of

care, diligence and skill ordinarily exercised by osteopathic physicians in good standing in the

community in which he or she practices.

New Hampshire

N.H. Rev. Stat. Ann. § 507-C:1 (2011) Actions for Medical Injury: Definitions.

“Action for medical injury” means any action against a medical care provider, whether based

in tort, contract, or otherwise, to recover damages on account of medical injury.

“Medical care provider” means a physician’s assistant, registered or licensed practical nurse,

hospital, clinic or not-for-profit home health care agency licensed by the state or otherwise

lawfully providing medical care or services, or an officer, employee or agent thereof acting in

the course and scope of employment.

“Medical injury” or “injury” means any adverse, untoward or undesired consequences arising

out of or sustained in the course of professional services rendered by a medical care

provider, whether resulting from negligence, error or omission in the performance of such

services; from rendition of such services without informed consent or in breach of warranty

or in violation of contract; from failure to diagnose; from premature abandonment of a

patient or of a course of treatment; from failure properly to maintain equipment or

appliances necessary to the rendition of such services; or otherwise arising out of sustained in

the course of such service.

See also N.H. Rev. Stat. Ann. § 507-E: 1 (2011) Medical Injury Actions Definitions.

New Jersey

No statute found.

New Mexico

N.M. Stat. Ann. § 41-5-3 (2010) Medical Malpractice Act: Definitions.

“Malpractice claim” includes any cause of action arising in this state against a health care

provider for medical treatment, lack of medical treatment or other claimed departure from

accepted standards of health care which proximately results in injury to the patient, whether

the patient’s claim or cause of action sounds in tort or contract, and includes but is not

limited to actions based on battery or wrongful death; “malpractice claim” does not include a

cause of action arising out of the driving, flying or nonmedical acts involved in the operation,

use or maintenance of a vehicular or aircraft ambulance.

New York

“Health care provider" means a person, corporation, organization, facility or institution

licensed or certified by this state to provide health care or professional services as a doctor

of medicine, hospital, outpatient health care facility, doctor of osteopathy, chiropractor,

podiatrist, nurse anesthetist or physician's assistant.

No statute found.

Congressional Research Service

Medical Malpractice Liability Reform: Legal Issues and 50-State Surveys

State

North Carolina

Definition

N.C. Gen. Stat. § 90-21.11 (2010) Medical Malpractice Actions: Definitions.

As used in this Article, the term “medical malpractice action” means a civil action for damages

for personal injury or death arising out of the furnishing or failure to furnish professional

services in the performance of medical, dental, or other health care by a health care provider.

As used in this Article, the term “health care provider” means without limitation any person

who pursuant to the provisions of Chapter 90 of the General Statutes is licensed, or is

otherwise registered or certified to engage in the practice of or otherwise performs duties

associated with any of the following: medicine, surgery, dentistry, pharmacy, optometry,

midwifery, osteopathy, podiatry, chiropractic, radiology, nursing, physiotherapy, pathology,

anesthesiology, anesthesia, laboratory analysis, rendering assistance to a physician, dental

hygiene, psychiatry, psychology; or a hospital or a nursing home; or any other person who is

legally responsible for the negligence of such person, hospital or nursing home; or any other

person acting at the direction or under the supervision of any of the foregoing persons,

hospital, or nursing home.

North Dakota

N.D. Cent. Code § 32-42-01 (2011) Alternative Dispute Resolution: Definitions.

“Health care malpractice action” means a claim for relief brought against a health care

provider, or other defendant joined in the action, regardless of the theory of liability on

which the claim is based, in which the claimant alleges a health care malpractice claim.

“Health care malpractice claim” means a claim brought against a health care provider or

other defendant joined in a claim alleging that an injury was suffered by the claimant as a

result of health care negligence or gross negligence, breach of express or implied warranty or

contract, failure to discharge a duty to warn, or failure to obtain consent arising from the

provision of or failure to provide health care services.

“Health care negligence” means an act or omission by a health care provider which deviates

from the applicable standard of care and causes an injury.

Ohio

Ohio Rev. Code Ann. § 2305.113 (2011) Time Limitations for Bringing Medical,

Dental, Optometric, or Chiropractic Claims.

“Medical claim” means any claim that is asserted in any civil action against a physician,

podiatrist, hospital, home, or residential facility, against any employee or agent of a physician,

podiatrist, hospital, home, or residential facility, or against a licensed practical nurse,

registered nurse, advanced practice nurse, physical therapist, physician assistant, emergency

medical technician-basic, emergency medical technician-intermediate, or emergency medical

technician-paramedic, and that arises out of the medical diagnosis, care, or treatment of any

person.

Oklahoma

Okla. Stat. tit. 63, § 1-1708.1C (2010) Affordable Access To Health Care Act:

Definitions.

“Medical liability action” means any civil action involving, or contingent upon, personal injury

or wrongful death brought against a health care provider based on professional negligence.

“Health care provider” means any person or other entity who is licensed pursuant to

provision Title 59 or Title 63 of the Oklahoma Statutes, or pursuant to the laws of another

state, to render health care services in the practice of a profession or in the ordinary course

of business.

“Health care services” means any services provided by a health care provider, or by an

individual working under the supervision of a health care provider, that relate to diagnosis,

assessment, prevention, treatment or care of any human illness, disease, injury or condition.

Oregon

No statute found.

Congressional Research Service

Medical Malpractice Liability Reform: Legal Issues and 50-State Surveys

State

Pennsylvania

Definition

42 Pa. Cons. Stat. § 5101.1, 40 (2010) Venue in Medical Professional Liability

Actions. 40 Pa. Cons. Stat. § 1303.103 (2010) Medical Care Availability and

Reduction of Error Act.

“Medical professional liability action” means any proceeding in which a medical professional

liability claim is asserted, including an action in a court of law or an arbitration proceeding.

”Medical professional liability claim” means any claim seeking the recovery of damages or loss

from a health care provider arising out of any tort or breach of contract causing injury or

death resulting from the furnishing of health care services which were or should have been

provided.

“Health care provider” means any primary health care center, a personal care home licensed

by the Department of Public Welfare, or a person including a corporation, university or other

education institution licensed or approved by the Commonwealth to provide health care or

professional medical services as a physician, certified nurse midwife, a podiatrist, hospital,

nursing home, birth center, and an officer, employee or agent of any of them acting in the

course and scope of employment.

Rhode Island

R.I. Gen. Laws § 5-37-1 (2011) Board Of Medical Licensure And Discipline:

Definitions.

“Medical malpractice” or “malpractice” means any tort, or breach of contract based on health

care or professional services rendered, or which should have been rendered, by a physician,

dentist, hospital, clinic, health maintenance organization or professional service corporation

providing health care services and organized under chapter 5.1 of title 7, to a patient or the

rendering of medically unnecessary services except at the informed request of the patient.

South Carolina

S.C. Code Ann. § 15-79-110 (2010) Medical Malpractice Actions: Definitions.

“Medical malpractice” means doing that which the reasonably prudent health care provider or

health care institution would not do or not doing that which the reasonably prudent health

care provider or health care institution would do in the same or similar circumstances.

South Dakota

Tennessee

“Health care institution” means an ambulatory surgical facility, a hospital, an institutional

general infirmary, a nursing home, and a renal dialysis facility.

“Health care provider” means a physician, surgeon, osteopath, nurse, oral surgeon, dentist,

pharmacist, chiropractor, optometrist, podiatrist, or any similar category of licensed health

care provider, including health care practice, association, partnership, or other legal entity.

S.D. Codified Laws § 15-2-14.1 (2010) Medical Malpractice Action: Two-year

limitation.

An action against a physician, surgeon, dentist, hospital, sanitarium, registered nurse, licensed

practice nurse, chiropractor, or other practitioner of the health arts for malpractice, error,

mistake or failure to cure, whether based upon tort or contract, can be commenced only

within two years after the alleged malpractice.

Tenn. Code Ann. § 56-54-103 (2011) Tennessee Medical Malpractice Reporting

Act: Chapter Definitions.

“Medical malpractice” means an actual or alleged negligent act, error, or omission in

providing or failing to provide health care services.

“Health care provider” means (A) a person licensed in either title 63, except chapter 12, or

title 68 to provide health care or related services, including, but not limited to, an

acupuncturist, a physician, a surgeon, an osteopathic physician, a dentist, a nurse, an

optometrist, a podiatrist, a chiropractor, a physical therapist, a psychologist, a pharmacist, an

optician, a physician assistant, a certified professional midwife, an orthopedic physician

assistant, or a nurse practitioner.

Congressional Research Service

Medical Malpractice Liability Reform: Legal Issues and 50-State Surveys

State

Texas

Definition

Tex. Civ. Prac. & Rem. Code § 74.001 (2010) Medical Liability: Definitions.

“Health care liability claim” means a cause of action against a health care provider or

physician for treatment, lack of treatment, or other claimed departure from accepted

standards of medical care, or health care, or safety or professional or administrative services

directly related to health care, which proximately results in injury to death of a claimant,

whether the claimant’s claim or cause of actions sounds in tort or contract.

“Health care provider” means any person, partnership, professional association, corporation,

facility, or institution duly licensed, certified, registered, or chartered by the State of Texas to

provide health care, including: a registered nurse; a dentist; a podiatrist; a pharmacist; a

chiropractor; an optometrist; or health care institution. (B) The term includes: (i) an officer,

director, shareholder, member, partner, manager, owner, or affiliate of a health care provider

or physician; and (ii) an employee, independent contractor, or agent of a health care provider

or physician acting in the course and scope of the employment or contractual relationship.

Utah

Utah Code Ann. § 78B-3-403 (2011) Utah Health Care Malpractice Act:

Definitions.

“Malpractice action against a health care provider” means any action against a health care

provider, whether in contract, tort, breach of warranty, wrongful death, or otherwise, based

upon alleged personal injuries relating to or arising out of health care rendered or which

should have been rendered by the health care provider.

“Health care provider” includes any person, partnership, association, corporation, or other

facility or institution who causes to be rendered or who renders health care or professional

services as a hospital, health care facility, physician, registered nurse, licensed practical nurse,

nurse-midwife, licensed Direct-entry midwife, dentist, dental hygienist, optometrist, clinical

laboratory technologist, pharmacist, physical therapist, physical therapist assistant, podiatric

physician, psychologist, chiropractic physician, naturopathic physician, osteopathic physician,

osteopathic physician and surgeon, audiologist, speech-language pathologist, clinical social

worker, certified social worker, social service worker, marriage and family counselor,

practitioner of obstetrics, or others rendering similar care and services relating to or arising

out of the health needs of persons or groups of persons and officers, employees, or agents of

any of the above acting in the course and scope of their employment.

Vermont

Vt. Stat. Ann. tit. 12, § 1908 (2011) Conduct of Trial: Burden of proof.

For the purpose of this section, malpractice shall mean professional medical negligence

comprised of the elements listed herein. In a malpractice action based on the negligence of

the personnel of a hospital, a physician licensed under chapter 23 of Title 26, a dentist

licensed under chapter 13 of Title 26, a podiatrist licensed under chapter 7 of Title 26, a

chiropractor licensed under chapter 9 of Title 26, a nurse licensed under chapter 27 of Title

26, or an osteopathic physician licensed under chapter 33 of Title 26.

Congressional Research Service

Medical Malpractice Liability Reform: Legal Issues and 50-State Surveys

State

Virginia

Definition

Va. Code Ann. § 8.01-581.1 (2011) Medical Malpractice Review Panels;

Arbitration Of Malpractice Claims: Definitions.

“Malpractice” means any tort action or breach of contract action for personal injuries or

wrongful death, based on health care or professional services rendered, or which should have

been rendered, by a health care provider, to a patient.

“Health care provider” means (i) a person, corporation, facility or institution licensed by this

Commonwealth to provide health care or professional services as a physician or hospital,

dentist, pharmacist, registered nurse or licensed practical nurse or a person who holds a

multistate privilege to practice such nursing under the Nurse Licensure Compact,

optometrist, podiatrist, chiropractor, physical therapist, physical therapy assistant, clinical

psychologist, clinical social worker, professional counselor, licensed marriage and family

therapist, licensed dental hygienist, health maintenance organization, or emergency medical

care attendant or technician who provides services on a fee basis; (ii) a professional

corporation, all of whose shareholders or members are so licensed; (iii) a partnership, all of

whose partners are so licensed; (iv) a nursing home as defined in § 54.1-3100 except those

nursing institutions conducted by and for those who rely upon treatment by spiritual means

alone through prayer in accordance with a recognized church or religious denomination; (v) a

professional limited liability company comprised of members as described in subdivision A 2

of § 13.1-1102; (vi) a corporation, partnership, limited liability company or any other entity,

except a state-operated facility, which employs or engages a licensed health care provider and

which primarily renders health care services; or (vii) a director, officer, employee,

independent contractor, or agent of the persons or entities referenced herein, acting within

the course and scope of his employment or engagement as related to health care or

professional services.

Washington

Wash. Rev. Code Ann. § 48.140.010 (2011) Medical Malpractice Closed Claim

Reporting: Definitions.

“Medical malpractice” means an actual or alleged negligent act, error, or omission in

providing or failing to provide health care services that is actionable under chapter 7.70

RCW.

Was. Rev. Code Ann. § 7.70.020 (2011) Actions For Injuries Resulting from

Health Care: Definitions.

In this chapter, “health care provider” means either:

(1) A person licensed by this state to provide health care or related services including, but

not limited to, an East Asian medicine practitioner, a physician, osteopathic physician, dentist,

nurse, optometrist, podiatric physician and surgeon, chiropractor, physical therapist,

psychologist, pharmacist, optician, physician assistant, midwife, osteopathic physician’s

assistant, nurse practitioner, or physician’s trained mobile intensive care paramedic, including,

in the event such person is deceased, his or her estate or personal representative;

(2) An employee or agent of a person described in part (1) above, acting in the course and

scope of his employment, including, in the event such employee or agent is deceased, his or

her estate or personal representative; or

(3) An entity, whether or not incorporated, facility, or institution employing one or more

persons described in part (1) above, including, but not limited to, a hospital, clinic, health

maintenance organization, or nursing home; or an officer, director, employee, or agent

thereof acting in the course and scope of his or her employment, including in the event such

officer, director, employee, or agent is deceased, his or her estate or personal representative.

West Virginia

W. Va. Code Ann. § 55-7B-2 (2011) Medical Professional Liability: Definitions.

“Medical professional liability” means any liability for damages resulting from the death or

injury of a person for any tort or breach of contract based on health care services rendered,

or which should have been rendered, by a health care provider or health care facility to a

patient.

“Health care” means any act or treatment performed or furnished, or which should have

Congressional Research Service

Medical Malpractice Liability Reform: Legal Issues and 50-State Surveys

State

Definition

been performed or furnished, by any health care provider for, to or on behalf of a patient

during the patient’s medical care, treatment or confinement.

”Medical injury” means injury or death to a patient arising or resulting from the rendering of

or failure to render health care.

Wisconsin

Wis. Stat. § 655.001 (2010) Health Care Liability and Injured Patients And

Families Compensation: Definitions.

Chapter 655 of the Wisconsin statutes covers health care liability actions. This applies to:

“Health care practitioner” means a health care professional, as defined in s. 180.1901 (1m),

who is an employee of a health care provider described in s. 655.002 (1) (d), (e), (em), or (f)

and who has the authority to provide health care services that are not in collaboration with a

physician under s. 441.15 (2) (b) or under the direction and supervision of a physician or

nurse anesthetist.

“Health care provider” means a person to whom this chapter applies under s. 655.002 (1) or

a person who elects to be subject to this chapter under s. 655.002 (2).

Wyoming

Wyo. Stat. Ann. § 1-1-130 (2011) Actions Against Health Care Providers;

Admissibility of Evidence.

In any civil action or arbitration brought by an alleged victim of an unanticipated outcome of

medical care against a health care provider.

For purposes of this section:

“Health care provider” means a person who is licensed, certified or otherwise authorized or

permitted by the laws of this state to administer health care in the ordinary course of

business or practice of a profession

“Unanticipated outcome” means the result of a medical treatment or procedure that differs

from an expected result.

Wyo. Stat. Ann. § 9-2-1515 (2011). Medical Review Panel: Definitions.

As used in this act: “Malpractice claim” or “claim” means any claim against a health care

provider for alleged medical treatment, alleged lack of medical treatment, or other alleged

departure from accepted standards of health care which results in damage to the patient.

Source: LexisNexis State Statutes database.

Notes: The statutory language included is from the current version of the state’s code which may not reflect

very recent legislative enactments yet to be codified. CRS did not search state regulations that may provide

additional definitions.

Congressional Research Service

Medical Malpractice Liability Reform: Legal Issues and 50-State Surveys

Table A-2 summarizes state laws that impose caps on punitive damages and noneconomic

damages in medical malpractice cases. Where “no statute found” is entered, this indicates that the

state apparently imposes no cap in medical malpractice suits, either because the state constitution

prohibits caps or because the state legislature has chosen not to enact a cap. This table quotes

some, but not necessarily all, state constitutional provisions that prohibit caps.

As discussed in “Noneconomic Damages,” the term “economic damages” refers to past and future

monetary expenses of an injured party, such as medical bills, rehabilitation expenses, and lost

wages. “Noneconomic damages” refers primarily to damages for pain and suffering. Economic

and noneconomic damages are both compensatory damages; that is, they are intended to

compensate the injured party. As mentioned earlier, punitive damages are awarded not to

compensate plaintiffs but to punish and deter particularly egregious conduct on the part of

defendants. Though noneconomic by nature, punitive damages are usually treated separately from

noneconomic damages.

The dollar amount in the right-hand column refers to the cap on compensatory noneconomic

damages, except that “total cap” means a cap on all damages—economic, noneconomic, and

punitive damages—combined. We have attempted to note where a state’s highest court has

declared the cap to violate the state’s constitution.

The caps listed in the chart, as well as the entry “punitive damages prohibited,” do not necessarily

apply to tort actions other than for medical malpractice, though in many cases they do.

Congressional Research Service

Medical Malpractice Liability Reform: Legal Issues and 50-State Surveys

Table A-2. State Caps on Noneconomic and Punitive Damages

in Medical Malpractice Lawsuits

State

Alabama

Noneconomic Damages

Punitive Damages

Ala. Code § 6-5-544 (2011)

Ala. Code § 6-11-21 (2011)

Imposes a $400,000 cap on noneconomic

losses, including punitive damages.

The greater of three times compensatory

damages or $500,000 ($1.5 million if physical

injury), with exceptions.

Held unconstitutional. Moore v. Mobile

Infirmary Ass’n, 592 So. 2d 156 (Ala. 1991).

Ala. Code § 6-5-547 (2011)

$1,000,000 total cap in wrongful death actions

against a health care provider.

This provision was held to violate state

constitution. Smith v. Schulte, 671 So. 2d 1334

(Ala. 1995), cert. denied, 517 U.S. 1220 (1996).

Alaska

Arizona

Arkansas

California

Alaska Stat. § 09.17.010 (2011)

Alaska Stat. § 09.17.020 (2011)

Imposes a $400,000 cap or the injured

person’s life expectancy in years multiplied by

$8,000, whichever is greater, but $1,000,000

or the person’s life expectancy in years

multiplied by $25,000, whichever is greater,

when the damages are awarded for severe

permanent physical impairment or severe

disfigurement.

The greater of three times compensatory

damages or $500,000, except if defendant was

motivated by financial gain and actually knew

the adverse consequences, then the greatest of

four times compensatory damages, four times

financial gain, or $7,000,000.

Ariz. Const. Art. II, § 31 (2011)

No law shall be enacted in this State limiting

the amount of damages to be recovered for

causing the death or injury of any person.

No law shall be enacted in this State limiting the

amount of damages to be recovered for causing

the death or injury of any person.

Ark. Const. Art. 5, § 32 (2010)

Ark. Code Ann. § 16-55-208 (2010)

No law shall be enacted limiting the amount to

be recovered for injuries resulting in death or

for injuries to persons or property.

The greater of $250,000 or three times

compensatory damages, not to exceed

$1,000,000, to be adjusted as of January 1, 2006

and at three-year intervals thereafter, in

accordance with the Consumer Price Index. No

cap if defendant intentionally caused injury or

damage.

Cal. Civ. Code § 3333.2 (2010)

No statute found.

$250,000.

Colorado

Colo. Rev. Stat. §§ 13-21-102.5, 13-64302 (2010)

$250,000 noneconomic cap, but $500,000 cap

if court finds justification for more than

$250,000. Both caps adjusted for inflation.

$1,000,000 total cap in suits against health care

providers.

Congressional Research Service

Colo. Rev. Stat. § 13-21-102 (2010)

The amount of actual damages awarded, but

three times that amount if the defendant

continues to act in a willful and wanton manner

during the pendency of the case.

Medical Malpractice Liability Reform: Legal Issues and 50-State Surveys

State

Connecticut

Noneconomic Damages

Conn. Gen. Stat. § 52-228c (2010)

Punitive Damages

No statute found.

Whenever, the jury renders a verdict

specifying noneconomic damages in an amount

exceeding one million dollars, the court shall

review the evidence presented to the jury to

determine if the amount is excessive as a

matter of law.

Delaware

No statute found.

District of

Columbia

No statute found.

Florida

Fla. Stat. Ann. § 766.118(2) (2011)

Fla. Stat. Ann. § 768.73(1) (2011)

$500,000, except $1 million cap on all

practitioners in the aggregate if permanent

vegetative state or death, or if, because of

special circumstances, noneconomic harm is

particularly severe and injury was catastrophic.

For non-practitioners, above caps are

$750,000 and $1.5 million, respectively. For

emergency services, caps are $150,000 for

practitioners, $750,000 for non-practitioners,

with maximum damages recoverable by all

claimants $300,000 and $1.5 million,

respectively.

The greater of three times compensatory

damages or $500,000, except, if wrongful

conduct was motivated solely by unreasonable

financial gain, and unreasonably dangerous

nature of the conduct and high likelihood of

injury were known, then the greater of four

times compensatory damages or $2 million. No

cap where specific intent to harm plaintiff.

Ga. Code Ann. § 51-13-1 (2011)

Ga. Code Ann. § 51-12-5.1 (2011)

Health care providers or medical facility:

$350,000. Medical facilities: $750,000. The

aggregate amount of noneconomic damages

recoverable under such subsections shall in no

event exceed $1,050,000.00.

$250,000.

Georgia

Hawaii

Fla. Stat. Ann. § 766.207(7)(d) (2011)

Punitive damages prohibited in voluntary

binding arbitration.

This provision held unconstitutional. Atlanta

Oculoplastic Surgery, P.C. v. Nestlehutt, 691

S.E.2d 218 (Ga. 2010).

If it is found that the defendant acted, or failed

to act, with the specific intent to cause harm,

or that the defendant acted or failed to act

while under the influence of alcohol, drugs

other than lawfully prescribed drugs

administered in accordance with prescription,

or any intentionally consumed glue, aerosol, or

other toxic vapor to that degree that his or her

judgment is substantially impaired, there shall

be no limitation regarding the amount which

may be awarded.

Haw. Rev. Stat. Ann. § 663-8.7 (2011)

No statute found.

$375,000 (cap does not apply to intentional

torts).

Idaho

Idaho Code Ann. § 6-1603 (2011)

Idaho Code Ann. § 6-1604 (2011)

For actions accruing after July 1, 2003,

$250,000 subject to increase or decrease in

accordance with the average annual wage.

For actions accruing after July 1, 2003, the

greater of $250,000 or three times

compensatory damages.

Congressional Research Service

Medical Malpractice Liability Reform: Legal Issues and 50-State Surveys

State

Illinois

Noneconomic Damages

735 Ill. Comp. Stat. Ann. 5/2-1706.5

(2011)

Hospital and its personnel or hospital affiliates:

$1 million.

Punitive Damages

735 Ill. Comp. Stat. Ann. 5/2-1115 (2011)

Punitive damages are not recoverable in healing

art and legal malpractice cases.

Physician and the physician’s business or

corporate entity and personnel or health care

professional: $500,000.

This provision held unconstitutional. Lebron v.

Gottlieb Mem. Hosp., 930 N.E.2d 895 (Ill.

2010).

Indiana

Ind. Code Ann. § 34-18-14-3 (2011)

Ind. Code Ann. § 34-51-3-4 (2011)

$1,250,000., total cap.

Greater of three times compensatory damages

or $50,000.

Qualified health care provider: $250,000 total

cap.

Iowa

No statute found.

Kansas

Kan. Stat. Ann. § 60-19a02(b) (2009)

Kan. Stat. Ann. § 60-3702(e), (f) (2009)

$250,000 by each party from all defendants.

The lesser of the defendant’s annual gross

income or $5,000,000, but if the profitability of

the misconduct exceeds such amount, the cap

is 1.5 times the profit.

Ky. Const. § 54 (2010)

The General Assembly shall have no power to

limit the amount to be recovered for injuries

resulting in death, or for injuries to person or

property.

The General Assembly shall have no power to

limit the amount to be recovered for injuries

resulting in death, or for injuries to person or

property.

La. Rev. Stat. Ann. § 40:1299.42 (2011)

Punitive damages prohibited at common law.

Kentucky

Louisiana

$500,000 total cap, exclusive of future medical

care and related benefits.

Qualified health care provider: $100,000 total

cap per patient.

Maine

Me. Rev. Stat. tit. 18-A, § 2-804(b) (2011)

Wrongful death actions: $500,000 for the loss

of comfort, society and companionship of the

deceased, including any damages for emotional

distress arising from the same facts.

Wrongful death actions: $250,000.

Congressional Research Service

Medical Malpractice Liability Reform: Legal Issues and 50-State Surveys

State

Maryland

Noneconomic Damages

Md. Code Ann., Cts. & Jud. Proc. § 3-2A09 (2011)

Punitive Damages

No statute found

1) (i) Except as provided in paragraph (2)(ii), a

cause of action arising between January 1,

2005, and December 31, 2008, inclusive, may

not exceed $650,000.

(ii) The limitation increase by $15,000 on

January 1 of each year beginning January 1,

2009. The increased amount shall apply to

causes of action arising between January 1 and

December 31 of that year, inclusive.

(2) (i) Except as provided in subparagraph (ii)

of this paragraph, the limitation under

paragraph (1) shall apply in the aggregate to all

claims for personal injury and wrongful death

arising from the same medical injury,

regardless of the number of claims, claimants,

plaintiffs, beneficiaries, or defendants.

(ii) If there is a wrongful death action in

which there are two or more claimants or

beneficiaries, whether or not there is a

personal injury action arising from the same

medical injury, the total amount awarded for

noneconomic damages for all actions may not

exceed 125% of the limitation established

under paragraph (1) of this subsection,

regardless of the number of claims, claimants,

plaintiffs, beneficiaries, or defendants.

Md. Code Ann., Cts. & Jud. Proc. § 11108 (2011)

$500,000 if cause of action arises on or after

October 1, 1994, increased by $15,000 on

October 1 of each succeeding year for causes

of action that arise on or after the date of the

increase.

Massachusetts

Mass. Ann. Laws, ch. 231, § 60H (2010)

Mass. Ann. Laws, ch. 229, § 2 (2010)

$500,000, unless death resulted or “special

circumstances” are found.

In wrongful death cases, not less than $5,000

where decedent’s death was caused by the

malicious, willful, wanton or reckless conduct of

the defendant or by the gross negligence of the

defendant.

Mass. Ann. Laws, ch. 231, § 85K (2010)

Charitable institution: $20,000 total cap.

Punitive damages otherwise prohibited at

common law.

Congressional Research Service

Medical Malpractice Liability Reform: Legal Issues and 50-State Surveys

State

Michigan

Noneconomic Damages

Mich. Comp. Laws. Serv. § 600.1483

(2011)

Punitive Damages

No statute found.

$280,000, recoverable by all plaintiffs, resulting

from the negligence of all defendants, but

$500,000 if a serious injury enumerated in the

statute occurred.

Minnesota

No statute found.

Mississippi

Miss. Code Ann. § 11-1-60 (2010)

Miss. Code Ann. § 11-1-65 (2010)

$500,000 cap for injury based on malpractice

or breach of standard of care against a

provider of health care, including institutions

for aged or infirm.

$20 million if defendant’s net worth exceeds $1

billion; $15 million if it exceeds $750 million but

is not more than $1 billion; $10 million if it

exceeds $500 million but is not more than

$750 million; $7½ million if it exceeds $100

million but is not more than $500 million; $5

million if it exceeds $50 million but is not more

than $100 million; 4% of defendant’s net worth

if defendant’s net worth is $50 million or less.

Mo. Rev. Stat. § 538.210 (2011)

No statute found.

Missouri

Not to exceed $350,000 irrespective of the

number of defendants.

Montana

Nebraska

Mont. Code Ann. § 25-9-411 (2010)

Mont. Code Ann. § 27-1-220 (2010)

$250,000 cap on noneconomic damages for

actions based on the same act or series of acts

that allegedly caused the injury, injuries, death

or deaths; or regardless the number of

defendant health care providers.

$10 million or 3% of a defendant’s net worth,

whichever is less.

Neb. Rev. Stat. Ann. § 44-2825 (2010)

Punitive damages prohibited at common law.

Healthcare provider and the Excess Liability

Fund: $1,750,000, total cap.

Healthcare provider: $500,000.

Nevada

New

Hampshire

Nev. Rev. Stat. Ann. § 41A.035 (2010)

Nev. Rev. Stat. Ann. § 42.005 (2010)

Not to exceed $350,000.

Three times compensatory damages if

compensatory damages are $100,000 or more;

$300,000 if the compensatory damages are less

than $100,000.

N.H. Rev. Stat Ann. § 507-C:7 (2011)

N.H. Rev. Stat Ann. § 507:16 (2011)

Not to exceed $250,000.

No punitive damages shall be awarded in any

action, unless otherwise provided by statute.

This provision held unconstitutional. Carson v.

Maurer, 424 A.2d 825 (N.H. 1980).

New Jersey

No statute found.

No statute provides for punitive damages in

medical malpractice actions.

N.J. Rev. Stat. 2A:15-5.14 (2011)

Greater of five times compensatory damages or

$350,000.

Congressional Research Service

Medical Malpractice Liability Reform: Legal Issues and 50-State Surveys

State

New Mexico

Noneconomic Damages

Punitive Damages

N.M. Stat. Ann. § 41-5-6 (2010)

$600,000 total cap. Monetary damages shall

not be awarded for future medical expenses in

malpractice claims.

Punitive damages and medical care and related

benefits are not subject to the $600,000 cap.

New York

No statute found.

No statute found

North

Carolina

No statute found.

N.C. Gen. Stat. § 1D-25 (2010)

North Dakota

N.D. Cent. Code § 32-42-02 (2011)

N.D. Cent. Code § 32-03.2-11(4) (2011)

Not to exceed $500,000 cap on noneconomic

damages regardless the number of health care

providers.

Greater of two times compensatory damages

or $250,000.

Ohio Rev. Code Ann. § 2323.43 (2011)

Ohio Rev. Code Ann. § 2315.21 (2011)

The greater of $250,000 or three times

plaintiff’s economic loss, to a maximum of

$350,000 for each plaintiff or a maximum of

$500,000 for each occurrence. But, if specified

serious injuries occur, cap is $500,000 for each

plaintiff or $1 million for each occurrence.

Punitive or exemplary damages in excess of two

times the amount of the compensatory

damages;

Ohio

Greater of three times the amount of

compensatory damages or $250,000.

Small employer or individual: lesser of two

times the amount of the compensatory

damages or 10% of the employer's or

individual's net worth, up to $350,000.

Except where the alleged injury, death, or loss

to person or property resulted from the

defendant acting with one or more of the

culpable mental states described in statute.

Oklahoma

Okla. Stat. tit., 23, § 61.2 (2010)

Okla. Stat. tit., 23, § 9.1 (2010)

$400,000.00, regardless of the number of

parties against whom the action is brought or

the number of actions brought.

Where reckless disregard, greater of $100,000

or actual damages awarded. Where intentional

and with malice, greatest of $500,000, twice

actual damages awarded, or financial benefit

derived by defendant. If court finds beyond a

reasonable doubt that defendant engaged in

conduct life-threatening to humans, then no

cap.

No limit on noneconomic damages arising

from a claimed bodily injury resulting from

professional negligence against a physician if

the judge and jury finds, by clear and

convincing evidence, that:

1. The plaintiff or injured person has suffered

permanent and substantial physical abnormality

or disfigurement, loss of use of a limb, or loss

of, or substantial impairment to, a major body

organ or system; or

2. The plaintiff or injured person has

suffered permanent physical functional injury

which prevents them from being able to

independently care for themselves and

perform life sustaining activities; or

3. The defendant's acts or failures to act

were: a. in reckless disregard for the rights of

others,

b. grossly negligent, c. fraudulent, or d.

intentional or with malice.

Congressional Research Service

Medical Malpractice Liability Reform: Legal Issues and 50-State Surveys

State

Oregon

Noneconomic Damages

Punitive Damages

Or. Rev. Stat. § 31.710 (2010)

Or. Rev. Stat. § 31.740 (2010)

Not to exceed $500,000.

Prohibited against specified health practitioners.

This provision held unconstitutional where

damages are recoverable under common law.

Lakin v. Senko Products, Inc., 987 P.2d 463

(Ore. 1999).

Pennsylvania

Pa. Const. Art. 3, § 18 (2010)

40 Pa. Cons. Stat. § 1303.505(d) (2010)

The General Assembly may enact laws

requiring the payment by employers, or

employers and employees jointly, of

reasonable compensation for injuries to

employees arising in the course of their

employment, and for occupational diseases of

employees, whether or not such injuries or

diseases result in death, and regardless of fault

of employer or employee, and fixing the basis

of ascertainment of such compensation and the

maximum and minimum limits thereof, and

providing special or general remedies for the

collection thereof; but in no other cases shall

the General Assembly limit the amount to be

recovered for injuries resulting in death, or for

injuries to persons or property, and in case of

death from such injuries, the right of action

shall survive, and the General Assembly shall

prescribe for whose benefit such actions shall

be prosecuted.

Except in cases alleging intentional misconduct,

punitive damages against an individual physician

shall not exceed 200% of the compensatory

damages awarded. Punitive damages, when

awarded, shall not less than $100,000 unless a

lower verdict amount is returned by the trier

of fact.

40 Pa. Cons. Stat. § 1303.712(c)(2)(i)

(2010)

Caps total liability of the Medical Professional

Liability Catastrophe Loss Fund at $500,000

for each occurrence and $1,500,000 per annual

aggregate.

Rhode Island

No statute found.

Congressional Research Service

No statute found.

Medical Malpractice Liability Reform: Legal Issues and 50-State Surveys

State

South

Carolina

Noneconomic Damages

Punitive Damages

S.C. Code Ann. § 15-32-220 (2010)

A single health care provider or a single health

care institution: $350,000 for each claimant,

regardless of the number of separate causes of

action.

This section does not limit the amount of

punitive damages in cases where the plaintiff is

able to prove an entitlement to an award of

punitive damages as required by law.

One health care institution, or more than one

health care provider, or any combination

thereof, the limit of civil liability for

noneconomic damages for each health care

institution and each health care provider is

limited to an amount not to exceed $350,000

for each claimant, and the limit of civil liability

for noneconomic damages for all health care

institutions and health care providers is limited

to an amount not to exceed $1,050,000 for

each claimant.

(E) The limitations for noneconomic damages

rendered against any health care provider or

health care institution do not apply if the jury

or court determines that the defendant was

grossly negligent, willful, wanton, or reckless,

and such conduct was the proximate cause of

the claimant's noneconomic damages, or if the

defendant has engaged in fraud or

misrepresentation related to the claim, or if

the defendant altered or destroyed medical

records with the purpose of avoiding a claim

or liability to the claimant.

South Dakota

S.D. Codified Laws § 21-3-11 (2011)

No statute found.

The total general damages which may be

awarded may not exceed the sum of five

hundred thousand dollars. There is no

limitation on the amount of special damages

which may be awarded.

Tennessee

No statute found.

Congressional Research Service

No statute found.

Medical Malpractice Liability Reform: Legal Issues and 50-State Surveys

State

Texas

Noneconomic Damages

Tex. Civ. Prac. & Rem. §§ 74.301, 302

(2010)

$250,000 per claimant against a physician or

health care provider and $250,000 per

claimant against a health care institution. If

more than one health care institution is liable,

cap against them all is $500,000 per claimant.

Tex. Civ. Prac. & Rem. § 74.303 (2010)

In a wrongful death or survival action on a

health care liability claim where final judgment

is rendered against a physician or health care

provider, the limit of civil liability for all

damages, including exemplary damages, shall be

limited to an amount not to exceed $500,000

for each claimant, regardless of the number of

defendant physicians or health care providers

against whom the claim is asserted or the

number of separate causes of action on which

the claim is based, subject to increase or

decrease in accordance with consumer price

index.

Utah

Punitive Damages

Tex. Civ. Prac. & Rem. § 41.008 (2010)

Greater of (1) two times the amount of

economic damages plus the amount of

noneconomic damages up to $750,000; or (2)

$200,000.

Tex. Civ. Prac. & Rem. § 74.303 (2010)

In a wrongful death or survival action on a

health care liability claim where final judgment

is rendered against a physician or health care

provider, the limit of civil liability for all

damages, including exemplary damages, shall be

limited to an amount not to exceed $500,000

for each claimant, regardless of the number of

defendant physicians or health care providers

against whom the claim is asserted or the

number of separate causes of action on which

the claim is based, subject to increase or

decrease in accordance with consumer price

index.

Utah Code Ann. § 78B-3-410 (2011)

(1)(a) for a cause of action arising before July 1,

2001, $250,000;

(b) for a cause of action arising on or after July

1, 2001 and before July 1, 2002, the limitation

is adjusted for inflation to $400,000;

1, 2002, and before May 15, 2010 the $400,000

limitation described in Subsection (1)(b) shall

be adjusted for inflation as provided in

Subsection (2); and

(d) for a cause of action arising on or after May

15, 2010, $450,000.

The limitations provided in this section do not

apply to punitive damages.

(2) (a) Beginning July 1, 2002 and each July 1

thereafter until July 1, 2009, the limit for

damages under Subsection (1)(c) shall be

adjusted for inflation by the state treasurer.

Vermont

No statute found.

Virginia

Va. Code Ann. § 8.01-581.15 (2011)

Va. Code Ann. § 8.01-38.1 (2011)

$1.5 million total cap, to increase by $50,000

every July 1 from 2000 through 2006, and by

$75,000 on July 1, 2007 and 2008. The July 1,

2008, increase shall be the final annual

increase.

Not to exceed $350,000 cap.

Congressional Research Service

Medical Malpractice Liability Reform: Legal Issues and 50-State Surveys

State

Noneconomic Damages

Punitive Damages

Washington

Wash. Rev. Code Ann. § 4.56.250 (2011)

Punitive damages prohibited at common law.

Amount determined by multiplying 0.43 by the

average annual wage and by the life expectancy

of the person incurring noneconomic damages,

as the life expectancy is determined by the life

expectancy tables adopted by the insurance

commissioner.

This provision held unconstitutional. Sofie v.

Fibreboard Corp., 771 P.2d 711 (Wash. 1989).

West Virginia

W. Va. Code Ann. § 55-7B-8 (2011)

No statute found.

$250,000 per occurrence, regardless of the

number of plaintiffs or defendants, except cap

is $500,000 if (1) Wrongful death; (2)

permanent and substantial physical deformity,

loss of use of a limb or loss of a bodily organ

system; or (3) permanent physical or mental

functional injury that permanently prevents the

injured person from being able to

independently care for himself or herself and

perform life sustaining activities. Annual

increases based on Consumer Price Index.

Caps apply only if defendant has insurance of

at least $1 million per occurrence.

Wisconsin

Wis. Stat. §§ 655.017, 893.55(4)(d)(1)

(2010)

Wis. Stat. § 895.043(6) (2011)- 2011 Wis.

Act 2, enacted on 1/27/2011

$750,000 for each occurrence under on or

after April 6, 2006.

Not to exceed twice the amount of any

compensatory damages recovered by the

plaintiff or $ 200,000, whichever is greater.

A $350,000 cap was held unconstitutional in

Ferdon ex rel. Petrucelli v. Wisconsin Patients

Compensation Fund, 701 N.W.2d 440 (2005).

Wyoming

Wyo. Const. Art. 10, § 4 (2011)

No law shall be enacted limiting the amount of

damages to be recovered for causing the injury

or death of any person.

No law shall be enacted limiting the amount of

damages to be recovered for causing the injury

or death of any person.

Source: LexisNexis State Statutes database.

Notes: The statutory language included is from the current version of the state’s code which may not reflect

very recent legislative enactments yet to be codified.

Congressional Research Service

Medical Malpractice Liability Reform: Legal Issues and 50-State Surveys

Table A-3 sets forth the burden of proof and standards for awards of punitive damages in medical

malpractice suits in the 50 states, as well as whether the state requires or permits a separate

hearing to determine punitive damages. The burden of proof refers to the plaintiff’s duty to

present evidence to prove his case. Although the lowest burden, which usually applies in civil

cases, is “preponderance of the evidence,” many states impose a higher burden of proof to

recover punitive damages—proof by “clear and convincing evidence.” One state—Colorado—

however, requires proof “beyond a reasonable doubt,” which is the highest standard—usually the

burden that the government must meet in criminal prosecutions.54

Standards for awards of punitive damages refer to what the plaintiff must prove to receive an

award of punitive damages. To recover compensatory damages in a medical malpractice case, the

plaintiff typically must prove negligence. To recover punitive damages, the plaintiff must prove

that the defendant’s conduct was more egregious than negligence, and usually more egregious

than gross negligence.

Separate proceedings for punitive damages refer to whether the computation and award of

punitive damages occurs during the initial trial or in a subsequent trial. Such punitive damages

proceedings usually include the same jury as in the original trial, but additional discovery can

occur and additional evidence can be presented (such as evidence related to the financial

condition of the defendant). This report sets forth the specific availability of this bifurcated trial

process, noting whether the process is available on the motion of one of the parties, or is

mandatory in all proceedings resulting in the award of punitive damages. Where “N/A” is entered

does not mean that bifurcation of a punitive damages claim is prohibited or non-existent. Rather,

it means that the state (1) may not have a specific statute that addresses bifurcation with respect to

punitive damages, or (2) that the its civil procedure rules grants the courts the discretion to have a

separate trial on any claim if it would be conducive to expedition or economy. For example, Rule

42 of West Virginia Civil Procedure states that the court may have separate trials on any claim if

it would be conducive or expeditious to do so.

Most of the provisions listed in the chart apply to punitive damages not only in medical

malpractice cases, but in other tort cases as well. Where “punitive damages prohibited” appears,

the prohibition may be limited to medical malpractice cases, or it may apply to other tort cases as

well.

Colo. Rev. Stat. § 13-25-127 (2010).

Congressional Research Service

Medical Malpractice Liability Reform: Legal Issues and 50-State Surveys

Table A-3. Punitive Damages—Burden of Proof, Standard, and Separate Proceeding

State and

Citation

Alabama

Burden of Proof

Ala. Code § 6-11-20

(2011)

Clear and convincing

evidence.

Alaska

Alaska Stat. § 09.17.020

(2011)

Defendant engaged in

“reprehensible conduct” and

acted “with an evil mind.”

Linthicum v. Nationwide Life Ins.

Co., 723 P.2d 675, 680 (1986).

N/A.

Ark. Code Ann. § 16-55206 (2010) “[D]efendant

knew or ought to have known

... that his or her conduct

would naturally and probably

result in injury or damage and

that he or she continued the

conduct with malice or in

reckless disregard of the

consequences ...” or

“defendant intentionally

pursued a course of conduct

for the purpose of causing

injury or damages.”

Ark. Code Ann. § 16-55211 (2010)

Cal. Civ. Code § 3294

(2010)

Cal. Civ. Code § 3294

(2010)

N/A.

Clear and convincing

evidence.

“[O]ppression, fraud, or

malice.”

Colo. Rev. Stat. §13-25127(2) (2010)

Colo. Rev. Stat. § 13-21102 (2010)

Beyond a reasonable doubt.

“[F]raud, malice, or willful and

wanton conduct.”

Preponderance of the

evidence.

“{A] reckless indifference to

the rights of others or an

intentional and wanton

violation of those rights.”

Clear and convincing

evidence.

Ark. Code Ann. § 16-55207 (2010)

Clear and convincing

evidence.

California

Colorado

Connecticut

“[T]he defendant consciously

or deliberately engaged in

oppression, fraud, wantonness,

or malice.”

Ala. Code § 6-11-23

(2011) Available.

Alaska Stat. § 09.17.020

(2011) Mandatory.

Linthicum v. Nationwide Life Ins.

Co., 723 P.2d 675, 681 (1986).

Arkansas

Ala. Code § 6-11-20 (2011)

Separate Proceeding

Alaska Stat. § 09.17.020

(2011) “[D]efendant’s

conduct (1) was outrageous,

including acts done with

malice or bad motives; or (2)

evidenced reckless

indifference to the interest of

another person.”

Clear and convincing

evidence.

Arizona

Standard

Freeman v. Alamo Management

Co., 607 A.2d 370, 373 (Conn.

1992).

Congressional Research Service

Available.

N/A.

Sorrentino v. All Seasons Servs.,

717 A.2d 150, 161 (Conn.

1998).

Medical Malpractice Liability Reform: Legal Issues and 50-State Surveys

State and

Citation

Delaware

District of

Columbia

Burden of Proof

Standard

Undefined, but likely

preponderance of the

evidence.

Del. Code Ann. tit. 18, §

6855 (2011)

Clear and convincing

evidence.

“[E]gregious conduct.”

Croley v. Republican Nat’l

Comm., 759 A.2d 682, 695

(D.C. 2000).

Separate Proceeding

N/A.

“[I]njury complained of was

maliciously intended or was

the result of wilful or wanton

misconduct by the health care

provider.”

N/A.

Railan v. Katyal, 766 A.2d 998,

1012 (D.C. 2001).

“[M]alice or its equivalent.”

Croley v. Republican Nat’l

Comm., 759 A.2d 682, 695

(D.C. 2000).

Florida

Georgia

Hawaii

Fla. Stat. Ann. § 768.72(2)

(2011)

Fla. Stat. Ann. §

768.72(2)(2011)

Clear and convincing

evidence.

“[I]ntentional misconduct or

gross negligence.”

Ga. Code Ann. § 51-125.1(b) (2011)

Ga. Code Ann. § 51-125.1(d)(2) (2011)

Clear and convincing

evidence.

“[W]illful misconduct, malice,

fraud, wantonness, oppression,

or that entire want of care

which would raise the

presumption of conscious

indifference to consequences.”

Mandatory.

Clear and convincing

evidence.

“[D]efendant has acted

wantonly or oppressively or

with such malice as implies a

spirit of mischief or criminal

indifference to civil obligations,

or where there has been

some wilful misconduct or

that entire want of care which

would raise the presumption

of conscious indifference to

the consequences.”

N/A.

Amfac, Inc. v. Waikiki

Beachcomber Inv. Co., 839

P.2d 10, 37 (1992)

N/A.

Amfac, Inc. v. Waikiki

Beachcomber Inv. Co., 839 P.2d

10, 37 (1992)

Idaho

Idaho Code Ann. § 6-1604

(2011)

Idaho Code Ann. § 61604(2011)

Clear and convincing

evidence.

“[O]ppressive, fraudulent,

malicious or outrageous

conduct.”

Congressional Research Service

N/A.

Medical Malpractice Liability Reform: Legal Issues and 50-State Surveys

State and

Citation

Illinois

Burden of Proof

Standard

Separate Proceeding

735 Ill. Comp. Stat. Ann.

5/2-1115 (2011)

Punitive damages prohibited

in medical malpractice cases.

Indiana

Ind. Code Ann. § 34-51-32 (2011)

Clear and convincing

evidence.

“[A]ct[ing] with malice, fraud,

gross negligence, or

oppressiveness which was not

the result of a mistake of fact

or law, honest error or

judgment, overzealousness,

mere negligence, or other

human failing.”

N/A.

USA Life One Ins. Co. of Indiana

v. Nuckolls, 682 N.E.2d 534,

541 (Ind. 1997).

Iowa

Kansas

Kentucky

Louisiana

Iowa Code Ann. § 668A.1

(2010)

Iowa Code Ann. § 668A.1

(2010)

“[P]reponderance of clear,

convincing, and satisfactory

evidence.”

“[W]illful and wanton

disregard for the rights or

safety of another.”

Kan. Stat. Ann. § 60-3701

(2009)

Kan. Stat. Ann. § 60-3701

(2009)

Kan. Stat. Ann. § 603701 (2009)

Clear and convincing

evidence.

“[W]illful conduct, wanton

conduct, fraud or malice.”

Mandatory.

Ky. Rev. Stat. Ann. §

411.184 (2010)

Ky. Rev. Stat. Ann. §

411.184 (2010)

N/A.

Clear and convincing

evidence.

“[O]ppression, fraud or

malice.”

N/A.

Punitive damages unavailable

in medical malpractice claims.

See Naquin v. Fluor Daniel

Services Corp., 935 F. Supp.

847, 849) (E.D. La. 1996)

(noting that punitive damages

are only available under

Louisiana law if specifically

permitted by a statute).

Congressional Research Service

Medical Malpractice Liability Reform: Legal Issues and 50-State Surveys

State and

Citation

Maine

Burden of Proof

Clear and convincing

evidence.

St. Francis de Sales Federal

Credit Union v. Sun Insurance

Company of New York, 818

A.2d 995, 1001 (Me. 2002,

revised 2003).

Standard

Malice, either express (where

the defendant “is motivated by

ill will toward the plaintiff”), or

implied (defendant’s conduct

“is so outrageous that malice

toward a person injured as a

result of that conduct can be

implied.”) Implied malice is not

established “by the defendant’s

mere reckless disregard of the

circumstances.”

Separate Proceeding

N/A

St. Francis de Sales Federal

Credit Union v. Sun Insurance

Company of New York, 818

A.2d 995, 1001 (Me. 2002,

revised 2003).

Maryland

Massachusetts

Clear and convincing

evidence.

“[E]vil motive, intent to injure,

ill will, or fraud.”

Owens-Illinois, Inc. v. Zenobia,

601 A.2d 633, 657 (Md.

1992).

Owens-Illinois, Inc. v. Zenobia,

601 A.2d 633, 652 (Md. 1992).

Mass. Ann. Laws, ch. 229,

§ 2 (2010)

Mass. Ann. Laws, ch. 229,

§ 2 (2010)

Preponderance of the

evidence in wrongful death

cases.

In wrongful death cases,

“malicious, willful, wanton or

reckless conduct ... or gross

negligence.”

But, punitive damages for

medical malpractice

otherwise prohibited.

Michigan

Undefined, but likely

preponderance of the

evidence.

N/A.

But, punitive damages for

medical malpractice otherwise

prohibited.

Conduct that “inspires feelings

of humiliation, outrage and

indignity” and is “malicious or

so willful and wanton as to

demonstrate a reckless

disregard of plaintiff's rights.”

N/A.

Veselenak v. Smith, 327

N.W.2d 261, 264 (1982).

Minnesota

Minn. Stat. Ann. § 549.20

(2010)

Minn. Stat. Ann. § 549.20

(2010)

Minn. Stat. Ann. §

549.20 (2010)

Clear and convincing

evidence.

“[D]eliberate disregard for the

rights or safety of others.”

Mandatory.

Congressional Research Service

Medical Malpractice Liability Reform: Legal Issues and 50-State Surveys

State and

Citation

Mississippi

Missouri

Montana

Nebraska

Burden of Proof

Standard

Separate Proceeding

Miss. Code Ann. § 11-165(1)(a)(2010)

Miss. Code Ann. § 11-165(1)(e)(2010)

Clear and convincing

evidence.

“[A]ctual malice, gross

negligence which evidences a

willful, wanton or reckless

disregard for the safety of

others, or committed actual

fraud.”

Mandatory.

Clear and convincing

evidence.

Mo. Rev. Stat. § 538.210.5

(2011)

Mo. Rev. Stat. § 510.263

(2011)

Rodriguez v. Suzuki Motor

Corp., 936 S.W.2d 104, 111

(Mo. 1996).

For medical malpractice

actions, “willful, wanton, or

malicious misconduct.” §

538.210.5 (2010).

Available.

Mont. Code Ann. § 27-1221 (2010)

Mont. Code Ann. § 271-221 (2010)

Clear and convincing

evidence.

“[A]ctual fraud or actual

malice.”

Mandatory.

Nev. Rev. Stat. Ann. §

42.005 (2010)

Nev. Rev. Stat. Ann. §

42.005 (2010)

Nev. Rev. Stat. Ann. §

42.005 (2010)

Clear and convincing

evidence.

“[O]ppression, fraud or

malice, express or implied.”

Mandatory.

N.J. Rev. Stat. § 2A:15-5.12

(2011) “[A]ctuated by actual

malice or accompanied by a

wanton and willful disregard of

persons who foreseeably

might be harmed.”

N/A.

“[M]alicious, fraudulent,

oppressive, or committed

recklessly with a wanton

disregard for the plaintiff's

rights.” Albuquerque Concrete

Coring Co., Inc. v. Pan Am World

Services, Inc., 879 P.2d 772, 775

(1994).

N/A.

Punitive damages prohibited.

Miller v. Kingsley, 230 N.W.2d

472, 474 (Neb. 1975).

Nevada

New Hampshire

N.H. Rev. Stat. Ann. §

507:16 (2011)

Punitive damages prohibited.

New Jersey

N.J. Rev. Stat. § 2A:155.12 (2011)

Clear and convincing

evidence.

New Mexico

Preponderance of the

evidence.

United Nuclear Corp. v.

Allendale Mut. Ins. Co., 709

P.2d 649, 654 (N.M. 1985).

Congressional Research Service

Medical Malpractice Liability Reform: Legal Issues and 50-State Surveys

State and

Citation

New York

Burden of Proof

Undefined, but likely

preponderance of the

evidence.

Standard

“[I]ntentional or deliberate

wrongdoing, aggravating or

outrageous circumstances,

fraudulent or evil motive, or

conscious act in willful and

wanton disregard of another’s

rights”

Separate Proceeding

Recommended.

Rupert v. Sellers, 368

N.Y.S.2d 904, 912 (N.Y.

App. Div. 1975)

Pearlman v. Friedman, Alpern &

Green, LLP, 750 N.Y.S.2d 869

(2002).

North Carolina

North Dakota

Ohio

Oklahoma

Oregon

Pennsylvania

Rhode Island

N.C. Gen. Stat. § 1D-15

(2010)

N.C. Gen. Stat. § 1D-15

(2010)

N.C. Gen. Stat. § 1D-30

(2010)

Clear and convincing

evidence.

“(1) Fraud. (2) Malice. (3)

Willful or wanton conduct.”

Available.

N.D. Cent. Code § 3203.2-11 (2011)

Clear and convincing

evidence.

“[O]ppression, fraud, or actual

malice.”

Available.

Ohio Rev. Code Ann. §

2315.21 (2011)

Ohio Rev. Code Ann. §

2315.21 (2011)

Mandatory.

Clear and convincing

evidence.

“[M]alice or aggravated or

egregious fraud.”

Okla. Stat. tit., 23, § 9.1

(2010)

Okla. Stat. tit., 23, § 9.1

(2010)

Clear and convincing

evidence.

Lower cap on punitive

damages for “reckless

disregard,” but a higher cap

for “intentionally and with

malice toward others.”

Or. Rev. Stat. § 31.730

(2010)

Or. Rev. Stat. § 31.740

(2010)

Clear and convincing

evidence.

“Malice” for medical

malpractice cases.

Preponderance of the

evidence.

40 Pa. Const. Stat.

§ 1303.505 (2010)

DiSalle v. P.G. Pub. Co., 544

A.2d 1345, 1371 n. 24 (Pa.

Super. Ct. 1988) (citing Martin

v. Johns-Manville Corp., 494

A.2d 1088, 1098 (Pa. 1985)).

“[W]illful or wanton conduct

or reckless indifference to the

rights of others.”

Preponderance of the

evidence

“[E]vidence of such willfulness,

recklessness, or wickedness, ...

as amounts to criminality.”

Ohio Rev. Code Ann. §

2315.21 (2011), overruled

by Havel v. Villa St. Joseph,

No. 94677, (Ohio Ct. App.

Oct. 28, 2010).

N/A.

N/A

Palmisano v. Toth, 624 A.2d,

314 (1993).

Congressional Research Service

Medical Malpractice Liability Reform: Legal Issues and 50-State Surveys

State and

Citation

South Carolina

Burden of Proof

S.C. Code Ann. § 15-33135 (2010)

Tennessee

N/A

S.D. Codified Laws § 21-14.1 (2011)

S.D. Codified Laws § 21-32 (2011)

N/A.

Before one can submit a claim

for punitive damages, “the

court shall find, after a

hearing based upon clear and

convincing evidence, that

there is reasonable basis to

believe that there has been

willful, wanton, or malicious

conduct on the part of the

party claimed against.”

Preponderance of the

evidence “[W]here defendant

has been guilty of oppression,

fraud, or malice, actual or

presumed.”

Clear and convincing

evidence.

Hodges v. S.C. Toof & Co., 833

S.W.2d 896 (Tenn. 1992).

Texas

Utah

Vermont

Separate Proceeding

“[W]illful, wanton, or in

reckless disregard of the

plaintiff’s rights.” Mellen v.

Lane, 377 S.C. 261 (2008).

Clear and convincing

evidence.

South Dakota

Standard