If you ask most people how they feel about “tort reform,” most will offer an opinion: good or bad. My goal is not to convince you one way or another, but rather to inform you of how tort reform really works in practice. I will leave it you to make a decision as to whether tort reform is good, bad, or, more important, consistent with justice meted our fairly.
Tort reform generally refers to one thing: caps on damages. Put another way, it is an arbitrary legislative limit in personal-injury lawsuits imposed without regard to the degree of the loss.The best way to show you how caps on damages work, and the strange outcomes that result, is to look at the same accident, and the same injury in three different abutting states/jurisdictions. Let’s look at the same case that is tried to a jury in Maryland, Virginia and the District of Columbia.
“Dad,” a father of three children, is on his way home from work when his car is struck by a physician’s car. The physician, after a long night at the hospital, runs a red light. Dad survives the accident, but suffers a severe brain injury, such that he can no longer earn a living. Prior to the accident, Dad earned $150,000 per year as an executive. It is agreed that Dad would have earned $2.5 million over his lifetime to support his family, send his kids to college, etc. Let’s also assume that Dad is in tremendous pain from his injuries, and that this pain cannot be alleviated. Thus, he will live with this pain every day for the rest of his life, and he will never be able to meaningfully interact with his kids again.
The case goes to trial on the same day in Maryland, D.C. and Virginia. All three juries award Dad his full economic loss of $2.5 million, and all three juries award Dad $1 million for his pain, suffering, and the loss of enjoyment of life, for a total award of $3.5 million. (By the way, if this sounds like a lot to you, ask whether you would take $3.5 million to be in Dad’s position?)
So in all three jurisdictions, Dad collects $3.5 million, right? Well, not so fast. In Virginia and in D.C., you would be correct that Dad is entitled to his full recovery. That is because neither D.C., nor Virginia, have legislatively limited damages in (non-medical malpractice) personal-injury cases. Maryland, however, has enacted a legislative limit on the pain and suffering component of damages. Thus, the $1 million the jury awarded will be legislatively limited to $770,000.00 once the jury leaves the courtroom. If you want to read the law, look at Md. Courts & Jud. Proc. §11-308.
So far, here is the result. If Dad is struck by the tired physician on the Virginia border, he recovers $3.5 million. If he is struck on the D.C. side, he recovers $3.5 million. If he is struck on the Maryland side, he recovers $3,270,000.00.
A bit strange, but as they say, you “ain’t seen nothing yet.”
Now let’s take the same injury to Dad, caused by the same physician, but instead the physician causes the injury during surgery. You would think the recovery would be the same, given that the injury is the same, right? Wrong.
In medical malpractice cases only, Virginia has enacted a special cap on damages. That cap limits all patients in Virginia to no more than a $2 million recovery. The cap is inclusive, meaning it limits both Dad’s financial loss and his pain and suffering loss. (The law is Va. Code §8.01-581.15). So in Virginia, if Dad is struck by the physician in the car, he recovers his full loss, $3.5 million. If the physician causes the same injury to Dad but in a medical setting, Dad recovers $2 million.
Now we turn to Maryland. If you are assuming that the Maryland cap we already discussed will limit Dad’s damages, you are only partially correct. While Maryland does cap the pain and suffering component of medical-malpractice awards, just like it caps personal-injury awards, it caps them at a lower amount. Thus, while the pain and suffering cap if Dad is struck by the physician’s car is $770,000, the pain and suffering cap, if the physician causes the injury in the medical setting is $710,000.00. Thus, Dad’s total recovery in the Maryland medical malpractice case is $3,210,00.00. If you want to read the separate Maryland malpractice cap, go to Md. Code Cts. & Jud. Proc. § 3-2A-09.
Finally, we come to the District of Columbia, which is easy. The District does not legislatively limit jury awards, trusting its citizens to set the amount (with oversight by the trial judge), as enshrined in our Constitution. Thus, in D.C., Dad recovers his full $3.5 million loss for the medical malpractice injury.
In case your head is spinning by now, below is an easy reference chart for you:
Same accident, same losses totaling $3.5 million
Recovery in: Automobile Injury Medical Malpractice Injury
Washington, DC $3.5 million $3.5 million
Virginia $3.5 million $2.0 million
Maryland $3.27 million $3.21 million
So the next time someone asks you about tort reform, before answering whether you support it, make sure you know what zip code you are standing in!