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Ted Sherwood
Ted Sherwood
Attorney • (918) 592-1144

The Fundamental Unfairness of Caps on Damages

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I was reading an article about the caps on damages in California and I was reminded of an often overlooked reason for the inherent unfairness of caps or upper limits on noneconomic damages or damages for pain, suffering and the loss of the quality of life. California passed a $250,000 cap or upper limit on noneconomic damages in 1975. The cap only applied to medical malpractice cases and was in response to an alleged crisis in the availability of healthcare due to medical malpractice lawsuits. The "medical malpractice crisis" has been completely discredited, but the cap has remained in place ever since.

Here is the kicker. The present value of $250,000 in 1975 is now $58,857. While $250,000 probably seemed like a lot of money in 1975, how does a cap of $58,000 sound. In the case of severe injury and a lifetime of suffering, imposing an upper limit is fundamentally unfair, but failing to adjust the amount over time is criminal.

On November 1st, 2011, Oklahoma's version of caps on noneconomic damages of $350,000 was passed by the Republican controlled legislature and signed into law by a Republican Governor. Oklahoma's cap applys to all cases involving personal injury, despite a complete absence of factual evidence to support the need for such drastic measures. Like the California cap, it has no adjustment for inflation.

Fortunately, Oklahoma's Constitution has a provision that makes the right to jury trial inviolate or paramount. Many states have rejected strict upper limits on noneconomci damages, most recently Georgia, Illinois and Ohio, as in violation of their respective state constitutions. I amoptimistic Oklahoma will do likewise, and return to its citizens the full measure of protection they deserve.

2 Comments

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    This is just another reason that capping medical damages is a terrible practice. Myths that medical malpractice awards are excessive and raise health care costs led to this legislation and it’s just not true.

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    This is just another reason that capping medical damages is a terrible practice. Myths that medical malpractice awards are excessive and raise health care costs led to this legislation and it’s just not true. http://carolina.hsinjurylaw.com/blog/nc-medical-malpractice-reform-caps-explained.cfm