The Current State of State Damage Caps

Because states have great latitude in whether, which, and how they cap damages, caps on damages by state vary widely: Some states cap economic damages only, some cap non-economic damages only, some cap both, and some neither.

In addition, some states exempt particular types of cases from their caps. Several states have considered whether their own damages caps are permitted by the state’s constitution, and some have even struck down their own damages caps after a violation was found.

Here, we provide an overview of the major relevant points when it comes to damages caps in the 50 states.

Economic vs. Non-Economic vs. Punitive Damages

Damages in a personal injury case typically include both economic and non-economic damages. In a particularly egregious case, punitive damages may be awarded as well.

“Economic” damages are awarded for specific, measurable losses related to the injury, and commonly include medical bills, lost wages, and repair or replacement costs for damaged property. “Non-economic” damages broadly include those losses that can’t be reduced to an invoice or receipt; “pain and suffering” falls in the non-economic category and is commonly compensated by personal injury damages. And while punitive damages are not awarded by all states or in all cases, states that do allow punitive damages in some cases often limit those damages as well.

Currently, eleven states cap non-economic damages in general tort or personal injury cases: Alaska, Colorado, Hawaii, Idaho, Kansas, Maryland, Mississippi, Ohio, Oklahoma, Oregon, and Tennessee. Caps on products liability or medical malpractice claim damages are more widely embraced.

Special Cases: Caps in State Product Liability and Medical Malpractice Claims

While only eleven states cap non-economic damages in general personal injury claims, several more cap damages in product liability claims, medical malpractice claims, or both.

Eleven states cap non-economic damages in personal injury claims, whether or not the state also caps damages in general torts claims. These eleven states are Alaska, Colorado, Idaho, Kansas, Michigan, Maryland, Mississippi, Ohio, Oklahoma, Oregon, and Tennessee.

Medical malpractice claims have the most commonly capped damages among the fifty states. Twenty-six states cap non-economic damages in medical malpractice claims, while six have “total caps” that limit both economic and non-economic compensation: Colorado, Indiana, Louisiana, Nebraska, New Mexico, and Virginia.

You Can’t Do That Here: The State of Unconstitutional State Caps

Many states have reviewed the constitutionality of their damages caps over the years. In four states – Florida, Illinois, New Hampshire, and Washington – state courts have found that the state’s previous attempts to limit damages violated some provision of the states’ respective constitutions. In all four states, attempts to reinstitute caps through new legislation have not yet occurred.

Two additional states have had their medical malpractice damages caps struck down in state courts: Alabama and Georgia. Both states have not yet attempted to create replacement caps.

Several state constitutions flatly prohibit the creation of damages caps in some or all types of personal injury claims. Five states prohibit caps on damages in general torts claims: Arizona, Arkansas, Kentucky, Pennsylvania, and Wyoming. In addition, four state constitutions prohibit damages caps in wrongful death claims: New York, Ohio, Oklahoma, and Utah.

Details on Damages Caps in Various States

Although an overview of state damages caps can provide a general sense of the landscape and of the current regard for certain types of caps, it provides very little information on any particular state and even less on the many ways in which states have fine-tuned their damages caps. While a full discussion of these diverse approaches is beyond the scope of this article, a few examples can provide some insight into the complexity of cap approaches:

• While Hawaii limits non-economic damages in personal injury cases, it applies these limits only to “pain and suffering” damages. Other types of non-economic damages, like trauma or permanent disability, are not covered by the cap.
• Colorado has two types of medical malpractice damages caps: A cap on non-economic damages, and a “total” cap covering both economic and non-economic damages in a med mal claim.
• Oregon once declared its own cap on non-economic damages in personal injury claims unconstitutional, only to reverse the decision many years later. (Compare Ohio’s caps, which were found unconstitutional by the courts and then re-passed in legislation written specifically to address the constitutionality issue.)

As with any other matter of state law, an understanding of a particular state’s damages caps is essential in any type of tort claim.