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Pain and Suffering “Caps” Can Be Unjust to the Victim, and a Windfall for the Negligent

Steven E. North, Esq. and Laurence M. Deutsch, Esq.


A recent article on WebMed.com indicates that medical error is the nation’s third leading cause of death, right behind cancer and heart disease. More than a quarter of a million people die each year in the U.S. because of medical error.

And yet in many states, no matter how egregious an error, no matter how profoundly a person might endure months or years of excruciating or life-changing limitations because of an error, the wronged patient cannot claim more than $250,000. Is that fair compensation for a person who was blinded or otherwise maimed by medical malpractice?

There are currently proposals before the New York State Legislature to mirror the practices of those states that impose the arbitrary of $250,000 cap for all “pain and suffering” damages.

“Pain and suffering” is a somewhat hackneyed phrase. But it is the legal term for a common-sense category of damages, e.g., any damage to a person for loss of life’s enjoyments. It does not necessarily mean “the “ouch” element but, rather, all of the experiences that render a person unable enjoy the benefits of life to which he or she otherwise would have or should have been entitled to.

For example, if an unemployed woman who attends to her home and family loses a limb (or two!) because of medical malpractice, she would be relegated to living the rest of her life in that impaired state. In such a case, what is $250,000 against her loss of independence, inability to swim, run, drive, or enjoy the many activities of living?

And, consider fairness between tort victims. If medical malpractice damages are artificially limited to well below the actual loss by a “pain and suffering cap,” there would be tremendous inequity, for example, between someone suffering the same losses as the result of an automobile accident caused by a negligent driver. Such an automotive injury would be evaluated in terms of multiple millions of dollars for pain and suffering, but a person suffering the same injury from medical malpractice would be unable to obtain any significant compensation.

Consider also, if a cap is unfair to the victim of real and severe malpractice, then who benefits from it? If the party responsible for the malpractice pays less for the injuries than he or she should, and the injured person receives less than he or she should, isn’t this a double injustice?