Medical Malpractice Liability Reform: Legal Issues and 50-State Surveys on Tort Reform Proposals
Released: 2011-03-28T00:00:00

Introduction

This report does not examine the merits or possible effects of medical malpractice litigation or medical malpractice liability reform on the health care system or on the cost of liability insurance premiums. Rather, this report explains specific tort reform proposals that are commonly considered in medical malpractice liability reform measures, and discusses their individual arguments in favor of and against such proposals from a legal perspective. These include imposing caps on noneconomic damages and punitive damages; permitting defendants to be held liable for no more than their share of responsibility for a plaintiff's injuries; requiring that damage awards be reduced by amounts plaintiffs receive from collateral sources such as health insurance; limiting lawyers' contingent fees; creating a federal statute of limitations; and requiring that awards of future damages in some cases be paid periodically rather than in a lump sum. Where appropriate, the report includes a brief summary of the tort reform measures included in H.R. 5 .

The Tort of Medical Malpractice

Medical malpractice is a tort, which is a civil (as distinct from a criminal) wrong, other than a breach of contract, that causes injury for which the victim may sue to recover damages. Actions in tort derive from the common law, which means that the rules that govern them were developed by the courts of the 50 states, and no statute is necessary in order to bring a tort action. Statutes, however, can change the court-made rules that govern tort actions, and many states have enacted tort reform statutes, including medical malpractice reform statutes. Congress also has the power, under the Commerce Clause of the U.S. Constitution (Art. I, § 8, cl. 3), to enact tort reform laws that would affect actions for medical malpractice liability brought under state law.

Medical malpractice liability arises when a health care professional engages in negligence or commits an intentional tort. Negligence has been defined as conduct "which falls below the standard established by law for the protection of others against unreasonable risk of harm." In most instances it arises from a failure to exercise due care, but a defendant may have carefully considered the possible consequences of his conduct and still be found to have imposed an unreasonable risk on others. "Negligence is conduct, and not a state of mind." The following is a traditional description of the standard of care to which doctors are held to avoid liability for medical malpractice:

This legal duty requires that the physician undertaking the care of a patient possess and exercise that reasonable and ordinary degree of learning, skill, and care commonly possessed and exercised by reputable physicians practicing in the same locality.

Today, however, many jurisdictions utilize some variation of the national standard of care. As one U.S. court of appeals explained:

The skill, diligence, knowledge, means and methods [required] are not those "ordinarily" or "generally" or "customarily" exercised or applied, but those that are "reasonably" exercised or applied. Negligence cannot be excused on the ground that others practice the same kind of negligence. Medicine is not an exact science and the proper practice cannot be gauged by a fixed rule.

While most medical malpractice actions rely on the theory of negligence, medical malpractice liability, as noted, may arise from an intentional tort as well as from negligence. In such actions, the practitioner is generally alleged to have intentionally acted in a fashion that ultimately caused harm to the patient. The general difference between an action based in negligence and one based in intentional tort is that "a medical procedure poorly performed might constitute negligence, while a medical procedure correctly performed that was not consented to might constitute an intentional tort."

Noneconomic Damages

Economic damages refer to monetary losses that result from an injury, such as medical expenses, lost wages, and rehabilitation costs. Noneconomic damages consist primarily of damages for pain and suffering. Determining the amount of noneconomic damages is traditionally subject to broad discretion on the part of juries, which must equate two variables—money and suffering—that are essentially incommensurable. Judges, however, have the authority to reduce damage awards that they find excessive. See Table A-2 for a 50-state survey of caps on noneconomic and punitive damages.

Section 4 of the H.R. 5 would not limit the amount of economic damages a claimant recovers in a health care lawsuit. Economic damages under the bill would be defined as monetary losses incurred, such as past and future medical expenses, loss of past and future earnings, cost of obtaining domestic services, loss of employment, and loss of business or employment opportunities. However, it generally would limit noneconomic damages, if awarded, to $250,000, regardless of the number of parties against whom the action is brought, or the number of separate claims or actions brought with respect to the same injury. Noneconomic damages would be defined as damages for physical and emotional pain, suffering, inconvenience, physical impairment, mental anguish, disfigurement, loss of enjoyment of life, loss of society and companionship, loss of consortium (other than loss of domestic service), hedonic damages, injury to reputation, and all other nonpecuniary losses of any kind of nature.

Arguments For Caps on Noneconomic Damages

Advocates for caps on noneconomic damages argue that a lack of caps guarantees inconsistency and unpredictability in the tort system, and forces insurers to counter this uncertainty by charging higher premiums. Disagreement over the amount of pain and suffering damages is a major obstacle to out-of-court settlement, thus increasing litigation and, as advocates maintain, coercing insurers to overpay on settlements of smaller claims. Further complicating the problem, they argue, is a tendency of juries to inflate pain and suffering awards to cover some or all of the plaintiff's attorney's fees.

Arguments Against Caps on Noneconomic Damages

It has been argued that caps on noneconomic damages could have disparate effects on different patient populations. For example, elderly plaintiffs and poorer individuals who are involved in a malpractice case may not be able to claim much in economic damages, such as lost wages. Thus, capping noneconomic damages would leave these types of plaintiffs little in damages from a malpractice suit and therefore decreased incentive for a lawyer to represent them. Furthermore, opponents of a cap assert that the $250,000, included in H.R. 5 , was adopted by California in 1975 "at a time when pain-and-suffering awards rarely exceeded that amount," and that more than 30 years later inflation has taken a toll.

Punitive Damages

Punitive damages (also called exemplary damages) are awarded not to compensate plaintiffs but to punish and deter particularly egregious conduct on the part of defendants—generally meaning reckless disregard for the safety of others, and more than negligence or even gross negligence. Punitive damages are noneconomic by nature, but state statutes that impose caps on punitive damages usually treat them separately from compensatory noneconomic damages.

The mere commission of a tort is generally not sufficient to obtain an award of punitive damages. As one treatise states:

There must be circumstances of aggravation or outrage, such as spite or "malice," or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that the conduct may be called wilful or wanton. There is general agreement that, because it lacks this element, mere negligence is not enough, even though it is so extreme as to be characterized as "gross," a term of ill-defined content, which occasionally, in a few jurisdictions, has been stretched to include the element of conscious indifference to consequences, and so to justify punitive damages.

Among the restrictions that have been proposed with regard to punitive damages, besides that they be capped, are (1) that the circumstances in which they may be awarded be narrowed, (2) that plaintiffs be required to prove by "clear and convincing" evidence that they are entitled to them (instead of having to prove it by a mere "preponderance of the evidence."), (3) that liability for punitive damages be determined in a separate proceeding from liability for compensatory damages, and (4) that punitive damages be paid in part to the government or to a fund that serves a public purpose instead of to the plaintiff. See Table A-3 for a 50-state survey of the burden of proof standards for punitive damages and whether a state requires a separate proceeding to determine such damages.

Section 7 of H.R. 5 would limit punitive damages to the greater of $250,000 or two times the amount of economic damages awarded, although a jury would not be informed of the limitation. Punitive damages would not be awarded in a health care lawsuit where a judgment for compensatory (i.e., economic and noneconomic) damages is not rendered.

Under the bill, a claimant would not be permitted to make a demand for punitive damages when initially filing the health care lawsuit. Upon a motion by the claimant, a court would be permitted to allow the claimant to amend his or her pleading only after a hearing and a finding by the court that the claimant has established by a substantial probability that he or she will prevail on the claim for punitive damages. H.R. 5 provides that punitive damages only would be awarded if it is proven by clear and convincing evidence that the defendant acted with malicious intent to injure or that the defendant deliberately failed to avoid unnecessary injury that he or she knew the claimant would suffer. Malicious intent to injure would be defined as intentionally causing or attempting to cause physical injury other than providing health care goods or services.

After the claimant is permitted to amend his pleading to make a demand for punitive damages, either party would be allowed to request that the trier of fact consider (1) whether punitive damages are to be awarded and the amount of such award, and (2) the amount of punitive damages following a determination of punitive liability. If there is a separate proceeding, then no evidence relevant to the claim for punitive damages would be admissible in any proceeding to determine whether compensatory damages, which cover both economic and noneconomic damages, are to be awarded. In determining the amount of punitive damages, the trier of fact would be required to consider only the following: (1) the severity of the harm caused by the conduct of such party; (2) the duration of the conduct or any concealment of it by such party; (3) the profitability of the conduct to such party; (4) the number of products sold or medical procedures rendered for compensation, as the case may be, that caused the harm complained of by the claimant; (5) any criminal penalties imposed on such party as a result of the conduct complained of; and (6) the amount of any civil fines assessed against such party as a result of the conduct complained of by the claimant.

Arguments For Caps on Punitive Damages

Similar to the arguments for capping noneconomic damages, advocates argue that a lack of cap on punitive damages contributes to instability in the insurance system, among other things. Critics charge that punitive damage awards in medical malpractice cases "are often unfair, arbitrary and unpredictable, and result in overkill.... [and] that reform is needed because there has been an outpouring of 'the most outrageous punitive damage awards' in medical malpractice." Although it has been acknowledged that punitive damage awards occur in a small number of cases, "they can have a devastating impact on individual defendants and can impose big costs on the economy as a whole."

Arguments Against Caps on Punitive Damages

Some argue that a cap on punitive damages does not lead to a reduction in medical malpractice insurance premiums and that awards are not "multimillion dollar jackpots," because of skewed data. Because punitive damages are meant to deter others, it has been said that they "must be allowed to fill the gaps the criminal law leaves open." Finally, plaintiffs often do not recover the amounts that juries award, because trial judges often reduce punitive damages awards that they find excessive. Furthermore, a recent Supreme Court decision "makes it easier for appellate courts to reduce punitive damages." It has been reported that "[s]ometimes, even before a jury rules, a plaintiff has signed an agreement that limits how much money actually changes hands."

Periodic Payment of Damages

Traditionally, damages are paid in a lump sum, even if they are for future medical care or future lost wages. In recent years, however, "attorneys for both parties in damages actions have occasionally foregone lump-sum settlements in favor of structured settlements, which give the plaintiff a steady series of payments over a period of time through the purchase of an annuity or through self-funding by an institutional defendant." Many forms of periodic payment statutes exist throughout the United States, and they can involve complicated calculations, "creating barriers for those who use the periodic payment process."

Proposals concerning the periodic payment of damages have been applied to future damages as well as to all damages. An issue that may arise in connection with awards of future damages is whether such awards should be converted to present value. Not to require such conversion "could be a very major change, significantly reducing awards, if it is intended to allow a defendant to pay, for example, a $1 million award over a 10-year period at $100,000 a year." Yet, if a jury is required to convert an award—an annuity with a present value of $1 million—into its present value, then the reform doesn't mean that much. As a practical matter, the defendant would be paying the same amount as before, because it would have to spend $1 million for an annuity that, as it earned interest over the years of its distribution, would yield the plaintiff more than $1 million. Had the defendant paid the plaintiff a lump sum of $1 million, then the plaintiff could have purchased that same annuity.

If Congress addresses periodic payment of future damages, it may consider utilizing the Uniform Periodic Payment of Judgments Act for guidance. For example, the uniform act includes sections that would account for inflation and for the effect of the plaintiff's death on unpaid amounts. Section 5(a) of the uniform act provides that, in a trial, "evidence of future changes in the purchasing power of the dollar is admissible on the issue of future damages." Section 13 provides that "liability to a claimant for periodic payments not yet due for medical expenses terminates upon the claimant's death." Damages for other economic losses, however, except in actions for wrongful death, must be paid to the plaintiff's estate. See Table A-4 for a 50-state survey of whether periodic payment of damages is to be considered in an award for a medical malpractice action.

Section 8 of the bill would permit any party to request to the court that future damages be paid by period payment, if an award of future damages is made that equals or exceeds $50,000, without a reduction to a present value. This would be permitted so long as the party against whom the judgment was made has sufficient insurance or other assets to fund a periodic payment of such judgment. H.R. 5 provides that "the court may be guided by the Uniform Periodic Payment of Judgments Act promulgated by the National Conference of Commissioners on Uniform State Laws."

Arguments For the Periodic Payment of Damages

Advocates argue that generally, both parties are benefitted by a period payment scheme because the defendant need not immediately pay out a large sum of money, and the plaintiff is prevented from dissipating a recovery and is provided a secure, tax-free income for a long period, without having to assume the costs and risks of managing an investment portfolio. Periodic payments are not very different than the structured settlements that lawyers utilize in other transactions. "Periodic payment of malpractice awards is nothing more than what lawyers have been doing for years in structured settlements. It is workable and often the only means of providing full compensation for an injured claimant when resources are otherwise unavailable."

Arguments Against the Periodic Payment of Damages

Some argue that if periodic payments will in fact benefit plaintiffs, then they will agree to them, as they sometimes do, without the need for legislation. Some plaintiffs may prefer to invest their awards themselves and not risk the insolvency of the defendant or the company from which the defendant purchases an annuity.

Limiting Joint and Several Liability

Joint and several liability is the common-law rule that, if more than one defendant is found liable for a plaintiff's injuries, then each defendant may be held 100% liable. A plaintiff may not recover more than once, but he may recover all his damages from fewer than all liable defendants. Any defendant who pays more than its share of the damages is entitled to seek contribution from other liable defendants.

Some states have eliminated joint and several liability, making each defendant liable only for its share of responsibility for the plaintiff's injury. Other states have adopted compromise positions such as eliminating joint and several liability only for noneconomic damages, presumably with the view that it is more important for the plaintiff to recover all his economic damages than all his noneconomic damages; or, eliminating joint and several liability only for defendants responsible for less than a specified percentage (e.g., 50%) of the plaintiff's harm, presumably with the view that it is especially unfair for such defendants to be held liable for up to 100% of the damages. See Table A-4 for a 50-state survey of whether the doctrine of joint and several liability applies to malpractice actions in a state.

Section 4 of the bill, which primarily addresses a cap on noneconomic damages, also provides that where there are multiple defendants, the bill would make each party responsible for an amount of damages that is in direct proportion to its individual percentage of fault, and it would not make an individual liable for the share of any other person. The trier of fact would determine the responsibility of each party for the claimant's harm.

Arguments For Limiting Joint and Several Liability

Advocates of abolishing or limiting joint and several liability argue that it

frequently operates in a highly inequitable manner—sometimes making defendants with only a small or even de minimis percentage of fault liable for 100% of plaintiff's damage. Accordingly, joint and several liability in the absence of concerted action has led to the inclusion of many 'deep pocket' defendants such as governments, larger corporations, and insured entities whose involvement is only tangential and who probably would not be joined except for the existence of joint and several liability.

Arguments Against Limiting Joint and Several Liability

Advocates of joint and several liability cite the reason that the common law adopted it: it is preferable for a wrongdoer to pay more than its share of the damages than for an injured plaintiff to recover less than the full compensation to which he is entitled.

Abolishing the Collateral Source Rule

The collateral source rule is the common-law rule that allows an injured party to recover damages from the defendant even if he is also entitled to receive them from a third party. Common third parties, that is, collateral sources, include a health insurance company, an employer, or the government. To abolish the collateral source rule would be to allow or require courts to reduce damages by amounts a plaintiff receives or is entitled to receive from collateral sources.

Often a collateral source, such as a health insurer or the government, has a right of subrogation against the tortfeasor (the person responsible for the injury). This means that the collateral source takes over the injured party's right to sue the tortfeasor, for up to the amount the collateral source owes or has paid the injured party. Though the collateral source rule may enable the plaintiff to recover from both his insurer and the defendant, if there is subrogation, the plaintiff must reimburse his insurer the amount it paid him. If the collateral source rule were eliminated, then the defendant would not have to pay the portion of damages covered by a collateral source, and the collateral source would apparently not be able to recover the amount it paid the plaintiff through subrogation. In the medical malpractice context, therefore, eliminating the collateral source rule would benefit liability insurers at the expense of health insurers.

Some jurisdictions, however, have abolished the collateral source rule only in cases in which there is no right of subrogation. In jurisdictions where there is no right of subrogation, the collateral source would be unaffected by elimination of the collateral source rule (i.e., the health insurer would still not recover its money), and the defendant would benefit by not having to pay the plaintiff.

Some proposals to abolish the collateral source rule have taken into account that the plaintiff may have paid insurance premiums for his collateral source benefit. Such proposals, instead of allowing a damage award to be reduced by the full amount of a collateral source benefit, allow it to be reduced by the full amount of a collateral source benefit minus the amount the plaintiff paid to secure that benefit. Other proposals would allow the defendant to introduce evidence of collateral source payments, but do not specify whether the jury must reduce economic damages awards by the amount of such payments.

Eliminating the collateral source rule could also indirectly reduce noneconomic damages awards, because juries often set such awards as a multiple of economic damages. If the collateral source rule were abolished, then the plaintiff could disclose to the jury only her out-of-pocket expenses, or she could disclose her total economic damages before collateral source payments are deducted. If the former, then the plaintiff might receive a lesser award of noneconomic damages.

H.R. 5 included a provision on collateral source benefits and introduction of evidence. An amendment that was adopted during the House Committee on the Judiciary mark-up eliminated this provision from the bill.

Arguments For Abolishing the Collateral Source Rule

Advocates of abolishing the collateral source rule object to the fact that it "permits the plaintiff to obtain double recovery for certain components of his damages award," unless the collateral source is subrogated to the plaintiff's claim against the defendants. Abolishing the collateral source rule will reduce damage awards without denying plaintiffs full recovery of their damages.

Arguments Against Abolishing the Collateral Source Rule

Advocates of the collateral source rule cite the reason that the common law adopted it: it is preferable for the victim rather than the wrongdoer to profit from the victim's prudence (as in buying health insurance) or good fortune (in having some other collateral source available). One commentator has also noted that, when the collateral source is the government, and the benefit it provides are future services, such as physical therapy, there is no guarantee that it will provide such services for as long as they are needed, as government programs may be cut back.

Limiting Attorneys' Contingent Fees

A contingent fee is one in which a lawyer, instead of charging an hourly fee for his services, agrees, in exchange for representing a plaintiff in a tort suit, to accept a percentage of the recovery if the plaintiff wins or settles, but to receive nothing if the plaintiff loses. Payment is thus contingent upon there being a recovery. Plaintiffs agree to this arrangement in order to afford representation without paying anything out-of-pocket, and lawyers agree to it because the percentage they receive—usually from 33⅓% to 40%—generally amounts to more than an hourly fee would. Many states regulate contingent fees in medical malpractice cases in one or more of the following ways: "(1) establishment of a sliding scale for the attorney fees; (2) establishment of a maximum percentage of the award that may be paid for attorney fees; and (3) provision for court review of the reasonableness of the attorney fees."

Legislation to limit contingency fees might consider specifying whether plaintiffs' attorneys would be allowed to add costs, including expert-witness fees, travel, and photocopying on top of the cap, or whether costs would only be recovered from the amount the attorney recoups under the cap. In medical malpractice cases, where costs can skyrocket, the difference is significant. See Table A-5 for a 50-state survey of limits on attorneys' contingency fees.

Section 5 of the H.R. 5 would empower the court to supervise the arrangements for the payment of damages to protect against conflicts of interest (e.g., a claimant's attorney having a financial stake in the outcome by virtue of a contingency fee). The court would have the power to restrict the payment of a claimant's damage recovery to such attorney, and to redirect the damages to the claimant.

The bill would impose a sliding scale for attorney fees. In any health care lawsuit, the total of all contingency fees for representing all claimants would not exceed (1) 40% of the first $50,000 recovered by the claimant(s); (2) 33⅓ % of the next $50,000 recovered by the claimant(s); (3) 25% of the next $500,000 recovered by the claimant(s); and (4) 15% of any amount where the recovery is in excess of $600,000. The sliding scale would be applicable regardless of whether the recovery is by judgment, settlement, mediation, arbitration, or any other form of alternative dispute resolution.

Arguments For Limiting Attorneys' Contingent Fees

Advocates of limiting contingent fees argue that such fees cause juries to inflate verdicts, result in windfalls for lawyers, and prompt lawyers to file frivolous suits in the hope of settling. They also argue that, where there is no dispute as to liability, but only as to damages, there is no contingency and therefore no justification for contingent fees. One study proposed that, if a defendant makes a prompt settlement offer, then counsel fees be "limited to hourly rate charges and capped at 10% of the first $100,000 of the offer and 5% of any greater amounts.... When plaintiffs reject defendants' early offers, contingency fees may only be charged against net recoveries in excess of such offers."

Arguments Against Limiting Attorneys' Contingent Fees

Opponents of limiting contingent fees argue that such fees enable injured persons, faced with medical bills and lost wages, to finance lawsuits that they otherwise could not afford—especially if their injuries have disabled them from working. They argue that lawyers are unlikely to file frivolous lawsuits if they stand to recover nothing if they lose, and that studies have shown that contingent fees do not encourage frivolous lawsuits. Finally, they note, "[a]n hourly fee arrangement [such as defendants' lawyers use] can encourage delay, inefficiency, and unnecessary action," whereas "[a] contingent fee is an added inducement for a lawyer to be efficient and expeditious."

Creating a Federal Statute of Limitations

The statute of limitations—the period within which a lawsuit must be filed—for medical malpractice suits under state law is typically two or three years, starting on the date of injury. Sometimes, however, the symptoms of an injury do not appear immediately, or even for years after, malpractice occurs. Many states therefore have adopted a "discovery" rule, under which the statute of limitations starts to run only when the plaintiff discovers, or in the exercise of reasonable diligence, should have discovered, his injury—or, sometimes, his injury and its cause. Plaintiffs would favor allowing a statute of limitations to run only upon discovery of an injury and its cause because it may take additional time after symptoms become manifest to discover that an injury was caused by medical malpractice. See Table A-6 for a 50-state survey on general statute of limitation provisions for both medical malpractice and product liability actions, as some tort reform proposals' provisions would affect the statute of limitations for both types of actions.

Section 3 of H.R. 5 would require a health care lawsuit to be brought within either three years after the date of manifestation of the injury, or within one year after the claimant discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first. No lawsuit could be brought after three years of the date of manifestation of the injury, but such a limitation could be extended upon a showing of (1) proof of fraud; (2) intentional concealment; or (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured party. For minors, the action must be commenced within three years from the date of the manifestation of injury, except that actions by a minor under the full age of six must be commenced within three years of the manifestation of the injury or prior to the minor's eighth birthday, whichever provides a longer period. In the event of fraud, the statute of limitations for a minor could be tolled.

Appendix. Fifty-State Surveys

Table A-1 sets forth the definition of a medical malpractice action in the 50 states. As not all states use the words "medical malpractice action" in their statutes, this table was compiled by using variations and combinations of the terms medical, health care , liability, malpractice, negligence, injury, and claim . This table does not cover the definition of malpractice actions where a state had a separate statutory scheme for other medical specialties, for example, dentistry. Where possible, this table provides state definitions of medical malpractice or health care liability action and to whom such provisions apply. Where a state had provisions on medical liability tort reform but no explicit definition of a medical malpractice action, the table reflects to which groups these provisions apply to give a sense of the scope of the parties that are covered under the medical malpractice statutes. For example, if the state had a specific statute of limitation on actions for medical malpractice, the table provides the definition of "health care provider" as used applicable to that statute. Where "no statute found" is entered means that there may have been state statutes governing medical malpractice actions, but that CRS could not identify a specific provision that defines an action for medical malpractice, or similar phrases, or a specific definition of the individuals to whom the provisions apply.

Table A-2 summarizes state laws that impose caps on punitive damages and noneconomic damages in medical malpractice cases. Where "no statute found" is entered, this indicates that the state apparently imposes no cap in medical malpractice suits, either because the state constitution prohibits caps or because the state legislature has chosen not to enact a cap. This table quotes some, but not necessarily all, state constitutional provisions that prohibit caps.

As discussed in " Noneconomic Damages ," the term "economic damages" refers to past and future monetary expenses of an injured party, such as medical bills, rehabilitation expenses, and lost wages. "Noneconomic damages" refers primarily to damages for pain and suffering. Economic and noneconomic damages are both compensatory damages; that is, they are intended to compensate the injured party. As mentioned earlier, punitive damages are awarded not to compensate plaintiffs but to punish and deter particularly egregious conduct on the part of defendants. Though noneconomic by nature, punitive damages are usually treated separately from noneconomic damages.

The dollar amount in the right-hand column refers to the cap on compensatory noneconomic damages, except that "total cap" means a cap on all damages—economic, noneconomic, and punitive damages—combined. We have attempted to note where a state's highest court has declared the cap to violate the state's constitution.

The caps listed in the chart, as well as the entry "punitive damages prohibited," do not necessarily apply to tort actions other than for medical malpractice, though in many cases they do.

Table A-3 sets forth the burden of proof and standards for awards of punitive damages in medical malpractice suits in the 50 states, as well as whether the state requires or permits a separate hearing to determine punitive damages. The burden of proof refers to the plaintiff's duty to present evidence to prove his case. Although the lowest burden, which usually applies in civil cases, is "preponderance of the evidence," many states impose a higher burden of proof to recover punitive damages—proof by "clear and convincing evidence." One state—Colorado—however, requires proof "beyond a reasonable doubt," which is the highest standard—usually the burden that the government must meet in criminal prosecutions.

Standards for awards of punitive damages refer to what the plaintiff must prove to receive an award of punitive damages. To recover compensatory damages in a medical malpractice case, the plaintiff typically must prove negligence. To recover punitive damages, the plaintiff must prove that the defendant's conduct was more egregious than negligence, and usually more egregious than gross negligence.

Separate proceedings for punitive damages refer to whether the computation and award of punitive damages occurs during the initial trial or in a subsequent trial. Such punitive damages proceedings usually include the same jury as in the original trial, but additional discovery can occur and additional evidence can be presented (such as evidence related to the financial condition of the defendant). This report sets forth the specific availability of this bifurcated trial process, noting whether the process is available on the motion of one of the parties, or is mandatory in all proceedings resulting in the award of punitive damages. Where "N/A" is entered does not mean that bifurcation of a punitive damages claim is prohibited or non-existent. Rather, it means that the state (1) may not have a specific statute that addresses bifurcation with respect to punitive damages, or (2) that the its civil procedure rules grants the courts the discretion to have a separate trial on any claim if it would be conducive to expedition or economy. For example, Rule 42 of West Virginia Civil Procedure states that the court may have separate trials on any claim if it would be conducive or expeditious to do so.

Most of the provisions listed in the chart apply to punitive damages not only in medical malpractice cases, but in other tort cases as well. Where "punitive damages prohibited" appears, the prohibition may be limited to medical malpractice cases, or it may apply to other tort cases as well.

Table A-4 sets forth the doctrine of joint and several liability and provisions for periodic payment for damages in the 50 states.

As discussed in " Limiting Joint and Several Liability ," the doctrine of joint and several liability is the common-law rule that, if more than one defendant is found liable for a plaintiff's injuries, then each defendant may be held 100% liable. Any defendant who pays for more than its share of the damages is entitled to seek contribution from other liable defendants. In this 50-state survey of joint and several liability, we note whether the doctrine of joint and several liability applies in the state, whether there is some modified version, or whether the doctrine has been abolished and only several liability applies, making each defendant liable only for its share of responsibility for the plaintiff's injury.

How one characterizes a statute as modified joint and several liability or several liability will vary. In this table, we use the term "modified joint and several liability" to refer to instances where the statute tends to find defendants jointly and severally liable for certain types of damages but not others. For example, in Hawaii joint and several liability applies when recovering economic damages, but several liability applies when recovering noneconomic damages if a defendant's negligence is found to be more than 25% or more of the total fault. We use the term "modified joint and several liability" where joint and several liability is triggered once a defendant is found to be negligent by a certain percentage of fault or where joint, or where joint and several liability applies to recover certain damages but not others. For example, in Iowa the rule of joint and several liability does not apply to a defendant who is found to bear less than 50% of the total fault assigned to all parties, but the doctrine will apply where a defendant is found to bear more than 50% and only in the recovery for economic damages. The term "several liability" is used where statutes generally abolished joint and several liability, though in some instances joint and several liability still applies where the tort-feasors acted in concert or with intent to commit the tort. For example, in Idaho the doctrine of joint and several liability is abolished except where joint tort-feasors acted in concert or when a person was acting as an agent or servant of another party.

As discussed in " Periodic Payment of Damages ," damages are traditionally paid in lump sum, even if they are for future medical care of future lost wages. With respect to malpractice actions, some states mandate that courts, upon the request of a party, enter a judgment for periodic payment of future damages that exceed a certain amount. Most states have general provisions that govern structured settlements, which usually includes an award for damages in a tort suit. For example, Massachusetts ch. 231C, §§1 et seq . governs structured settlement contracts generally; in Hawaii, the Hawaii Revised Statutes §§ 676-1 et seq . is the state's Structured Settlement Protection Act; and in New Jersey, N.J. Stat. Ann. §§ 2A:16-63 et seq . governs structured settlements. These types of general structured settlement statutes are not captured in this table. Where "no statute found" is entered means that CRS could not locate a statute specific to medical malpractice actions on periodic payment.

Table A-5 sets forth limits on attorneys' contingency fees in the 50 states. Most statutes have a sliding scale, which limits the amount an attorney can collect to a certain percentage of the award recovered. This table does include provisions that address how attorneys' fees are to be calculated in light of an award for damages or how they are to be considered by the court. For example, the states of Arizona, Kansas, and Washington each have a statutory provisions on how a court shall, upon the request of a party, review the reasonableness of attorneys' fees in a health care action. It mandates that the court take into consideration factors such as (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal services properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; and (5) the time limitations imposed by the client or by the circumstances. Another example is Alaska, which directs when an attorney's contingency fee is to be calculated when punitive damages are awarded. This table also does not capture provisions on attorneys' fees like that of North Dakota, which declares that "the amount of the agreement in civil actions must be left to the agreement, express or implied, of the parties." In states where only these types of statutory provisions were identified with respect to attorneys' fees, we have entered "no statute found."

Table A-6 sets forth the statute of limitations for medical malpractice actions and product liability actions in the 50 states. Generally, for each state, this table identifies first, the medical malpractice statute of limitations, and second, the product liability statute of limitations provision. Where no product-liability specific statute could be identified, we included the general statute of limitations on an action to recover damages for personal injury or the "catch-all" statute of limitations; e.g., the D.C. Code § 12-301 provides "for which a limitation is not otherwise specifically provided—3 years" and Delaware's statute of limitations governing "personal injuries" would govern an action for product liability. ( See Del. Code Ann titl. 10, § 8119.)

Many states also have various exceptions for a medical malpractice or product liability-specific statute of limitations depending on the age or status of the plaintiff, the time or manner of discovery, and the nature of the injury. For example, states commonly provide an extended statute of limitations if the plaintiff is a minor or suffering from a mental disability. Arizona, for instance, provides that "if a person ... is at the time the cause of action accrues either under eighteen years of age or of unsound mind, the period of such disability shall not be deemed a portion of the period limited for commencement of the action. Such person shall have the same time after removal of the disability which is allowed to others." (Ariz. Rev. Stat. § 12-502 (2011).) California, like many other states, extends time limitations for an action for damages sustained during birth. ( See , e.g. , Cal. Civ. Proc. Code § 340.4 (2010).) Louisiana and New York have a special time limitation for an action based blood transfusions tainted with HIV or AIDS. ( See La. Rev. Stat. § 9:5628.1 (2011) and N.Y. C.P.L.R. § 214-3 (2011). ) Many states, if not all, also have a statute of limitations on a specific product that is or was the subject of class action lawsuits. These include the Dalkon Shield Intrauterine Device ( see Mass. Ann. Laws, ch. 260 § 2E (2010)) and breast implants ( see Md. Code Ann., Cts. & Jud. Proc § 50116 (2011)). As these exceptions span a variety of areas across the 50 states, this table generally does not include these types of provisions, though the reader should be aware that many states have these special exceptions that may affect the general time limitations for certain actions.