In 1995, the North Dakota legislature capped medical malpractice damages at $500,000. Since that day, patients, attorneys and advocates have been fighting against the cap. No explanation was ever given for why the dollar amount was chosen, and no one’s ever proved that damage caps helped anyone outside of the insurance companies.
The fight against tort reform in North Dakota may finally come to an end after 23 years. South Central Judicial District Judge Cynthia Feland has ruled that the “law capping noneconomic damages in medical malpractice cases at $500,000 is unconstitutional, saying it deprives the most catastrophically injured patients of full compensation and thus denies them equal protection of the laws.”
Why damage caps don’t do what legislators claim
People in favor of tort reform – a fancy name for damage caps – seem to believe that there are runaway juries out there, throwing undeserved millions of dollars at people who file “frivolous” lawsuits. The problem with these beliefs are:
- No one files “frivolous” lawsuits, because there is no such thing (and we will explain why)
- Most medical malpractice cases actually settle out of court, because folks would rather have their bills paid and their roofs kept over their heads than go to trial
- Damage caps only ever apply to non-economic damages
Let’s break this down. Every single plaintiff’s medical malpractice attorney in North Dakota works on contingency. In a nutshell, that means the law firm pays all of the costs associated with the case from the start. If we win, then we are paid out from our client’s award. If we lose, then we are out the costs of handling the case, plus our fee. To put it bluntly, no lawyer is going to put up untold amount of money – some of the really big cases can cost a law firm a million dollars – to try a case that has no merit. It would be harmful to the client, and can force a firm into bankruptcy. Everyone loses that way. If an attorney takes a case, you better believe he or she thinks it has merit.
Secondly, most folks don’t even want to file a lawsuit. They don’t want to go to court. They don’t want to deal with lawyers and insurance companies, and they sure don’t feel right asking people to “give” them money. They just want what’s fair. The average number of people who file malpractice cases in North Dakota is 21.5 out of 100,000 people. That’s .0215%. And medical errors are the third leading cause of death in this country, which means the number of people who have been harmed because of a mistake or act of medical negligence is likely far, far higher than .0215% of the state’s population. People aren’t asking for tens of millions, and juries aren’t throwing that at them for no reason, either.
Finally – and this is important – damage caps only apply to non-economic damages. If you go in for a minor operation on your right leg, and your doctor chops off the left leg, you can recover all of your economic damages. There is no limit to that amount, which includes things like your medical bills, or your lost wages (both past and future), or the cost of retrofitting your house to include things like wheelchairs or ramps (or other “adaptive technologies,” as they are sometimes called.) If a judge or jury sees that all of these losses together total $1 million, then you can be awarded $1 million in economic damages.
Non-economic damages include things like pain and suffering, or loss of companionship. In the case heard by District Judge Cynthia Feland, the patient was undergoing an exploratory procedure called a mediastinoscopy, which doctors use to take biopsies of tissue. The doctor performed the procedure so negligently, that the patient suffered a stroke, paralysis and blurred vision. Her suffering will be ongoing.
The ruling that damage caps are unconstitutional is a sound one, and a step in the right direction for victims of medical negligence in North Dakota. We hope that the next step is repealing the law, once and for all.
Larson Law Firm offers comprehensive representation on behalf of medical malpractice throughout North Dakota. To schedule your free initial consultation with an attorney, call our Minot office at 701-484-HURT, or fill out our contact form.