For many years, the State of Utah has placed limits on how much injured patients can recover for their medical malpractice cases. The law, found at Utah Code Ann. § 78B-3-410, states that “non-economic" damages may not exceed $450,000 for injuries that occur after May 15, 2010 (there is an adjusting scale for injuries that occurred prior).
What are “non-economic" damages, and what does this mean for your medical malpractice case?
Non-economic damages are not capable of being exactly measured, and there is no fixed rule, standard or formula for them. In awarding noneconomic damages, jurors commonly consider:
Noneconomic damages include also loss of consortium. Loss of consortium is loss of the benefits that one spouse expects to receive from the other, such as companionship, cooperation, affection, aid and sexual relations.
Even if a jury who heard all the facts and details of a case awarded a malpractice victim $1,000,000 in noneconomic damages, the judge would reduce that amount to $450,000.
There is no cap on economic damages, which are defined as the amount of money that will fairly and adequately compensate the injured party for measurable losses of money or property caused by the defendant’s fault. In order to recover economic damages, the injury victim must prove a measurable loss. There must be a reasonable probability, not just speculation, of loss.
Economic losses include costs of past and future medical care, lost income, lost earning capacity, loss of household services, and property damage. Other forms of loss are considered noneconomic and are subject to the cap.
When medical negligence results in wrongful death, the malpractice damage cap becomes an issue.
By its plain language, Utah’s malpractice damage cap only limits “noneconomic losses to compensate for pain, suffering, and inconvenience." Utah Code Ann. § 78B-3-410. Losses arising from wrongful death are not characterized as “pain, suffering, and inconvenience," but rather, are distinct forms of loss. As the Utah Supreme Court has explained:
[ W] hen the death of an adult is caused by the wrongful or negligent act of another, the heirs or the personal representative of the heirs may bring an action for damages against the person causing the death. This Court . . . interpreted the statute and held it to create “a new cause of action for the loss suffered by the heirs by reason of death . . . ."
Hull v. Silver, 577 P.2d 103, 103-04 (Utah 1978) (quoting VanWagoner v. Union Pac. R. Co., 186 P.2d 293, 303 (Utah 1947)) (emphasis added). Although Utah’s appellate courts have not specifically addressed the issue, a strong argument can be made that wrongful death losses are distinct from the “noneconomic losses to compensate for pain, suffering, and inconvenience," and are not contemplated by the language of the statutory cap.
If the damage cap were to be extended to wrongful death claims, the statute would likely violate Article XVI, § 5 of the Utah State Constitution, which provides:
The right of action to recover damages for injuries resulting in death shall never be abrogated, and the amount recoverable shall not be subject to any statutory limitation, except in cases where compensation for injuries resulting in death is provided for by law.
The right to recover for wrongful death is a constitutionally protected common law right. See generally Berry ex rel. Berry v. Beech Aircraft Corp., 717 P.2d 670, 684 (Utah 1985). In a more recent case, the Utah Supreme Court reviewed the history of the claim and specifically noted that “wrongful death occupies a position of privilege among torts." Bybee v. Abdulla, 2008 UT 35, ¶ 18, 189 P.3d 40. If applied to wrongful death cases, the statutory damage cap would limit the right to recover without providing an alternative system of compensation. Such an application would arguably violate the plain language and meaning of the constitution.
These are complicated issues, and if you are considering a medical malpractice case, you need to find an attorney that is familiar not only with the statutory damage cap, but someone who understands the constitutional and economic issues as well.
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