The Reality and Injustice of "Caps" on Noneconomic Damages

So-called "caps" on non-economic damages have been making a lot of news these days as part of the health care reform debate. The idea is to limit non-economic damages–or damages for pain and suffering–to some arbitrary number. Often $250,000 is the number bandied about.

Let’s set aside the capriciousness of a $250,000 cap for a moment. Rather than try to figure out where this number comes from, let’s consider who is most affected by such a cap.

I represent the family of a young woman who died as a result of medical negligence. She was unemployed at the time of her death because she suffered from something called "startle syndrome" where unexpected noises would cause her to collapse to the ground. She was undergoing treatment to get this under control so she could follow her dream of going to culinary school. The failure to properly administer and monitor a particular medication was the cause of her death.

While she wasn’t working, she volunteered in her community at a school while she tried to get a teaching certificate. If she couldn’t be a chef, she wanted to be school teacher. She was also loved dearly by her mother, father and two sisters. Since she wasn’t earning wages, though, the most her family could collect for her unnecessary death would likely be $250,000 if such a cap was in place.

Now, consider a vice-president at AIG who was earning $1 million annually. The same negligence at the same hospital would permit the family of the AIG executive to collect his lost wages of $1 million for each year until his presumed retirement, plus $250,000 for pain and suffering.

Is that fair? Is that justice? Is that what America is about? In fact, it is exactly the opposite of what our civil justice system believes, that all are equal under the law. An arbitrary cap on non-economic damages specifically says that all are not equal under the law: instead, a Wall Street tycoon’s life is worth more than that of someone with a dream to be a chef or a teacher who is volunteering in her community until that dream becomes a reality.

Is that the type of civil "justice" system we want in the United States? Is that the type of civil justice system that we want protecting our children and neighbors?

Caps on non-economic damages value some lives more than others. That’s not right in any country, and certainly not the United States.