On talking of lifting the cap on the non-economic damages

Published 11:33 pm Saturday, June 25, 2011

Mississippi’s Supreme Court has been asked to decide whether it’s constitutional to limit how much a jury can award to an injured plaintiff in a lawsuit. How the court decides could have a huge impact on both economic development and medical services.

Before Mississippi enacted two series of tort reforms less than a decade ago, this state had acquired an unflattering and detrimental national reputation as a “judicial hellhole.” Businesses were skittish about locating in the state, and physicians were scaling back their practices, abandoning procedures that had the highest risk of lawsuits. There were some rural towns where there wasn’t a doctor left who would deliver babies.

The Legislature, which had for years ignored the crisis and let the trial lawyers (including some of its own members) run wild, finally wised up. It curbed some of the most abused tactics of the plantiffs’ lawyers, such as shopping for venues where jurors were likely to be biased against big-pocketed defendants. It set a $1 million limit on non-economic damages, best known as “pain and suffering.”

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Before then, non-economic damages were the “wild card” in lawsuits. Having seen cases where Mississippi jurors had awarded irrationally huge awards for pain and suffering, insurers were extorted into settling even dubious cases out of fear of a whopping judgment. Liability coverage in some fields, such as for medical malpractice insurance, became either hard to find or unaffordable.

The $1 million cap brought some reasonableness to the damage-awarding process and the certainty that insurance underwriters crave in establishing premiums.

What’s sometimes lost in this argument is that the cap does not apply to all damages, only the most nebulous ones. There is no limit on actual damages for the injured, such as the expense of ongoing medical care, lost wages and other true, measurable costs. Also, if the conduct of the defendant is truly egregious, jurors can award unlimited punitive damages.

Lifting the cap on non-economic damages would be good only for the trial lawyers and a few plaintiffs who hit the jackpot. The rest of us would have to pay for those excesses in less business development and fewer and more expensive medical services.

The court should leave well enough alone.