Malpractice bill seeks to cap awards for pain and suffering

Tort Reform » Lawyers say tighter restrictions on awards would hurt patients who have been injured.
This is an archived article that was published on in 2010, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

Victims of medical malpractice could see the amount of damages they could receive cut in half under a bill that is likely to pit the state's physicians against the lawyers who represent injured patients.

SB145, sponsored by Sen. Stuart Adams, R-Layton, would impose a hard limit of $250,000 available to malpractice victims as a result of pain and suffering. The current limit in Utah is $480,000.

"The federal government hasn't been able to take on tort reform on medical malpractice and I believe it's a significant part of the cost of health care," said Adams. "If you talk to doctors, many of them, from obstetricians to surgeons, are dealing with additional costs. ... It's a tough process and it causes, I think, a lot of difficulty for extremely capable and talented medical professionals.

But Charles Thronson, president of the Utah Alliance for Justice, an association for trial lawyers, said the perception that medical malpractice is driving up health care costs is simply not true.

Utah already has 27 statutes protecting health care providers from malpractice claims. And of the 96,000-plus civil lawsuits filed in 2008, only 229 were malpractice suits.

"[Utah] has most every tort reform measure that has been suggested and health care providers have more protection and immunity than any other profession. There are very few malpractice cases even being filed and we feel this legislation takes away people's rights if they are injured," said Thronson. "We think enough is enough."

In October, the nonpartisan Congressional Budget Office wrote in a letter to Sen. Orrin Hatch, R-Utah, that a $250,000 cap on pain-and-suffering awards and instituting other tort reforms could reduce overall medical costs by 0.5 percent.

The introduction of SB145 sets the stage for a high-powered fight between the Utah Medical Association and Utah's trial lawyers, both major players on Capitol Hill.

House Speaker David Clark, R-Santa Clara, who is co-chairman of Utah's Health Reform Task Force, said tort reform has to be part of the health reform system, and hopes that Adams' bill starts a discussion on the best approach.

"I'm glad to see it coming forward and start that process. Those have always been tough, tough legislative fights," said Clark. "I would not think that this would be any different."

In 1986, Utah enacted its first caps on noneconomic damages -- primarily pain and suffering and other damages that are difficult to quantify -- available in malpractice lawsuits, setting the limit at $250,000.

There are other economic damages and loss of consortium damages that are also available to an injured party.

Ten years ago, the limit for noneconomic claims was raised to $400,000 and indexed for inflation. Today it stands at $480,000. Adams' bill would return the limit to $250,000 for cases filed after May 1 and there would be no indexing for inflation.

In cases where someone has had the wrong leg amputated or a child has suffered brain damage, $250,000 is inadequate to cover the individuals' pain and suffering, said Thronson, who has rows of pictures on his walls of blind or brain-damaged children he has represented in malpractice claims.

Those children, who are most severely injured and would otherwise be entitled to larger malpractice awards, would be most adversely affected by the changes, said Thronson.

Adams' bill also proposes a sliding scale for attorney fees, from one-third of the award for the first $100,000 down to 15 percent for awards over $600,000.

"This is an effort to say, 'Gee, we need to focus on the injured party in these cases and not the legal fees,' " said Adams.

But Thronson said, without contingency arrangements, most malpractice victims would never be able to take their cases to court because they couldn't afford to pay a lawyer up front.

"It's not jackpot justice. It's just a way for someone to get legal representation," he said, arguing the Legislature shouldn't interfere with a contract between an attorney and a client. "It's really none of the Legislature's business what people who want legal services decide to pay for them."

Adams said he hopes to have a dialogue with the trial lawyers and expects the bill to get moving next week.