# Medical Malpractice Liability Reform: Legal Issues and 50-State Surveys on Tort Reform Proposals > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/crs%3AR41661 ## Record - **Collection:** Congressional research report - **Document type:** CRS Report - **Published:** March 28, 2011 - **Citation:** R41661 ## 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: 1 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). 2 Restatement (Second) of Torts, § 282. 3 W. Page Keeton, Prosser and Keeton on Torts, § 31 (5th ed. 1984). Congressional Research Service 1 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 4 David M. Harney, Medical Malpractice § 21.2 (3d ed. 1993). Nalder v. West Park Hospital, 254 F.3d 1168, 1176 (10th Cir. 2001). 6 Marcia M. Boumil, et al., Medical Liability 65 (2d ed. 2003). 7 Id. 8 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. 9 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. 5 Congressional Research Service 2 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. 10 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). 12 H.R. 5, § 9(15). 11 13 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.”). 14 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 3 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 15 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). 16 W. Page Keeton, supra note 3, § 2. 17 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. 18 H.R. 5, § 7(b)(2). 19 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) 20 H.R. 5, § 7(a). Congressional Research Service 4 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 21 H.R. 5, § 7(a). H.R. 5, § 9(13) 23 H.R. 5, § 7(a). 24 H.R. 5, § 7(b). 25 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). 26 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). 27 Mark Thompson, Applying the Brakes to Punitives—But is There Anything to Slow Down?, American Bar Association Journal (Sept. 1997) at 68, 69. 28 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). 22 Congressional Research Service 5 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 29 30 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). 31 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. 32 Joseph T. Hallinan, In Malpractice Trials, Juries Rarely Have the Last Word, Wall Street Journal (Nov. 30, 2004). 33 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. 34 Paul J. Lesti, Structured Settlements § 21.5 (2d ed., 1993). 35 Victor E. Schwartz, Doctors’ Delight, Attorneys’ Dilemma, Legal Times, Health-Care Law Supplement (Feb. 28, 1994) at 30. 36 Id. Congressional Research Service 6 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. 37 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. 38 Annotation, supra note 33, at 96. 39 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 7 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. 40 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). 41 Congressional Research Service 8 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 42 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....” 43 Michael F. Flynn, Private Medical Insurance and the Collateral Source Rule: A Good Bet?, 22 U. Told. L. Rev. 39, 49 (1990). 44 Amendment 14 to H.R. 5. Congressional Research Service 9 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 45 Report of the Tort Policy Working Group, supra note 35. 46 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. 47 See National Conference of State Legislatures, State Medical Malpractice Laws 2010, available at http://www.ncsl.org/default.aspx?tabid=18516. Congressional Research Service 10 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 48 H.R. 5, § 5. The Manhattan Institute, Rethinking Contingency Fees 28, 29 (1994). 50 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. 51 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. 52 Id. at 6. 49 Congressional Research Service 11 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 53 To toll the statute of limitations means to stop its running. Congressional Research Service 12 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 13 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 14 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 15 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 16 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 17 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 18 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 19 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 20 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 21 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 22 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 23 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 24 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 25 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 26 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 27 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 28 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) 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. 29 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. No statute found. District of Columbia No statute found. 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 30 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. 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) 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) 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 31 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 32 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. 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 33 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) 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 34 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. 35 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) 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. 36 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3AR41661. Public record. Not legal advice.