The perceived need for tort reform, and particularly medical malpractice damages caps, is among the most salient political issues of our time. President Bush himself has advocated a uniform federal cap on noneconomic damages in medical malpractice cases as the centerpiece of a tort reform agenda aimed at reining in a “judicial system [that] is out of control.” The 2004 election, moreover, spawned a resurgence of state legislative reform efforts.

This chapter explores the politically divisive issue of damages caps and takes a closer look at the assumptions that inhere in the arguments for them and against them. I conclude that the most prevalent form of damages caps, those that cap only the noneconomic portion of medical malpractice awards, are hardly the surefire limits on damages awards that their advocates hope – and their detractors fear – them to be.

BACKGROUND: DISAGGREGATING MEDICAL MALPRACTICE DAMAGES

Medical malpractice damages, like tort awards in general, are comprised of compensatory damages and punitive damages. Compensatory medical malpractice damages, in turn, consist of economic damages, often referred to as “special” or “pecuniary” damages, and noneconomic damages, also known as “general” or “nonpecuniary” damages.

Economic damages aim to compensate an injured party for past and future monetary damages, such as lost wages, medical expenses (past and future), rehabilitation expenses, and other financial costs. For the most part, these damages attract little attention. They tend to be viewed as predictable and easily quantifiable, even by juries.