Medical malpractice caps on noneconomic damages vary across the United States, reflecting many factors, including a diversity of views on the role that the legal system should play in mitigating medical error and health care costs. In Indiana, where the medical malpractice cap has been in place for 15 years, some health care experts are questioning whether the cap is still constitutional.

The constitutionality of state malpractice award caps has already been called into question elsewhere.

In Florida, the state supreme court held in a 5-2 decision that the cap was unconstitutional for several reasons, stating that the way the cap had been set is “arbitrary and unrelated to a true state interest,” and “offends the fundamental notion of equal justice under the law.”  It further held that the existing Florida law “has the effect of saving a modest amount for many by imposing devastating costs on a few—those who are most grievously injured, those who sustain the greatest damage and loss, and multiple claimants for whom judicially determined noneconomic damages are subject to division and reduction simply based upon the existence of the cap.”

Continue Reading

At the time, in mid-2014, Florida was the eighth state supreme court to strike down such caps.

Thus, the Indiana worry is not unfounded. Set in 1999, the current Indiana cap for an individual victim is $1.25 million. Indiana Hospital Association lobbyist Tim Kennedy told Indiana Public Media that the cap has withstood previous challenges, but it has not been reviewed for 17 years. He questioned whether the amount is “fair and just” in today’s health care industry context.

Others, including the Indiana State Medication Association’s Mike Rinebold, rang an oft-sounded alarm. Rinebold estimated that increasing the cap by $400,000, an amount recommended by some, would have dramatic cost implications. “The OB/GYN with no history of malpractice pays approximately $46,750 per year, so a 15% increase would mean an extra $7,000 before they deliver their first baby,” he said.

An Indiana General Assembly panel, the Interim Study Committee on Courts and the Judiciary, hears testimony on the matter this month.  Bills introduced last year to raise the caps or increase the threshold amount for medical reviews advanced beyond their respective committees but no further.

Ann Latner, JD, a former criminal defense attorney, is a freelance medical writer in Port Washington, N.Y.