Flat Caps on Damages Unfair, Says Harvard Study

A new study indicates that caps on non-economic damages may limit patients’ ability to be fairly compensated for their pain and suffering. The study suggests that a schedule or sliding scale may be preferable.

The study from the Harvard School of Public Health, authored by David Studdert, associate professor of health policy and law; Michelle Mello, assistant professor of health policy and law; and Y. Tony Yang, found that imposing a cap on non-economic damages results in inequitable payouts across different types of injuries.

The study is reported in the July/August issue of the journal Health Affairs.

The authors analyzed a sample of jury verdicts in California that were subjected to the state’s $250,000 cap on non-economic damages. They found that reductions imposed on grave injuries were seven times larger than those for minor injuries. People suffering from pain and disfigurement had particularly large reductions in their awards.

Currently, 21 states cap damages for non-economic losses in medical practice cases.

“A flat dollar cap is unfair,” says Studdert. “When you look at the verdicts that are affected by caps, what you see is a really large number of case that involve major injury.”

If policymakers pursue caps as a way to limit malpractice awards, Studdert says, “they ought to try to be more creative about the kinds of caps that they are enacting.”

The authors recommend that a schedule or sliding scale for non-economic damages would be more equitable. “Under this approach, the maximum award in each severity bracket would be capped but at a level more commensurate with the severity of injury than a flat cap permits,” the study says, adding that it allows such awards to vary by severity of injury and also by the plaintiff’s age.