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Are There Caps on Damages?

Outside Florida

Some states have enacted laws which put caps or limits on the maximum amounts people can recover in medical malpractice or other injury cases. Other states have no maximum amount. Some of the state laws providing for caps on damages are relatively new and are still being challenged on the grounds they are unconstitutional. Even though there may now be a cap in your state, it may not withstand a final court challenge. You will need to check with a lawyer in your state as to what types of damages are recoverable and whether there are any limitations on the amounts.


On the national front, there has repeatedly been proposed legislation to institute a nationwide cap of $250,000 for intangible damages in medical malpractice cases. This cap would be very unfair because it would not just cap frivolous cases, which often get thrown out by the courts or overturned on appeal anyway. The cap would mostly impact legitimate cases with severe injuries, and it would mean that the most seriously injured victims will only receive partial compensation, while the less severely injured might be fully compensated. Such a cap would also discriminate against children, the elderly, and stay-at-home moms who could not prove the wage losses that others can, so $250,000 might be all they could get no matter how severe the injury.

Most people would agree that for things like blindness, amputations, or the death of a child, these caps would be terribly unfair. Many people who generally think a cap is a good idea also do not understand that the proposed cap is the “gross” amount that may be recovered, and the actual net to the client after deducting attorneys fees and expenses could actually be much less. Moreover, if insurance companies know the most they might ever have to pay is $250,000 they will rarely settle even the most meritorious cases for full value. They will offer $100,000 or $150,000 and say: “So sue us!”

In Florida

Florida has a few separate laws applying caps on intangible damages in medical malpractice cases, depending on the type of case and also depending on who the defendants are (i.e., what type of healthcare provider). However, the Florida Supreme Court has struck down some of those laws, and there are several more legal challenges underway.

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