Unwise and Unnecessary: Statutory Caps on Non-Economic Damages in Medical Malpractice Cases and the Appellate Review Alternative
Emery, Ryan T., Albany Law Review
In June 1999, a New York jury awarded over $76 million dollars to Gaelle Prindilus, a woman who suffered brain damage when she was an infant because of the purported carelessness of the resident doctors who delivered her at Harlem Hospital. (1) Allegedly, the hospital staff failed to do a sonogram that would have revealed the umbilical cord tied around the plaintiffs neck. (2) Such headline-grabbing stories have motivated many in legal, medical, and political communities to demand tort reform. (3) Specifically, many desire a cap on the amount of non-economic damages a plaintiff can receive. (4) The concern of many commentators and advocacy groups is that large awards like these are having profoundly adverse effects on the medical community and healthcare in general. (5)
With stories of astronomical jury awards like the Prindilus (6) case, one can understand why many would argue for a reform measure such as a limit on damages for pain and suffering. (7) Reports of huge jury verdicts, however, tell the reader only half of the story. What happens after the verdict rarely gets discussed in any follow-up article and is often dwarfed by the more salacious headline and underlying story. (8) In the Prindilus case, for instance, the plaintiff received a $9 million settlement while an appeal of the case was pending; (9) this award was .118th of the size of that originally given by the jury. The power of the appellate courts to reduce damages awards (10) was likely a motivating factor for the plaintiffs attorney in settling the case. (11)
An appellate court's power to reduce awards does not have much significance if the power is not actually used on a regular basis. The Appellate Division, however, fulfills its statutory responsibility to reduce excessive damages awards in medical malpractice cases. (12) Accordingly, it is unnecessary for New York to adopt a statutory cap limiting non-economic damages.
A study of Appellate Division activity over a ten-year period demonstrates that the court is attentive to excessive damage awards and responds appropriately to them. Using cases decided between 1994 and 2003 as a representative sample, this study includes any medical malpractice case decided during the ten-year time frame if one of the issues discussed on appeal was whether excessive non-economic damages were awarded. (13)
Part II provides background information and reviews issues unique to non-economic damages and their purported relationship to the civil liability "crisis." Part III presents a study of Appellate Division activity and assesses the frequency with which the court has reduced non-economic damage awards on appeal. Part III also provides an analysis of several illustrative cases. Specifically, it looks at the three cases in the sample that had the largest damage awards in order to determine whether the appellate courts reduced the award. Additionally, Part III considers the three cases with the largest damages awards where the appellate courts declined to reduce the award. After comparing the process of appellate review to a statutory cap, Part IV argues that the former is the superior method for addressing the issue of excessive non-economic damage awards.
II. BACKGROUND ON NON-ECONOMIC DAMAGES
Non-economic damages are damages that cannot be precisely measured in money. (14) Common examples of non-economic damages include awards for pain and suffering and loss of consortium. (15) The driving force behind capping such damages is the common criticism that they are arbitrary, unpredictable, and subjective. (16) As one legal commentator noted:
Since there is no market for the sale and purchase of pain and suffering, no source other than the legal process exists for determining whether the awards made for pain and suffering are reasonable or unreasonable.... One of the most difficult aspects of evaluating the likely damage verdict in a medical malpractice case remains predicting what the court or jury is likely to award for pain and suffering. …