An Act To Preserve the Medical Liability Climate in the State by Capping Noneconomic and Punitive Damages
Maine Legislature, Session 122, LD 1378
Committee: Judiciary
Sponsors: TURNER, McKANE, SAVIELLO, DIAMOND, WESTON, CURLEY, DRISCOLL, MARRACHE, NASS, WOODBURY
Amends: 14 MRSA §156-A, 14 MRSA §165, 24 MRSA §2855

Legislative Document 
No. 1378 
S.P.476 
In Senate, March 17, 2005 
An Act To Preserve the Medical Liability Climate in the State by 
Capping Noneconomic and Punitive Damages 
Reference to the Committee on Judiciary suggested and ordered printed. 
Presented by Senator TURNER of Cumberland. 
JOY J. O'BRIEN 
Secretary of the Senate 
Cosponsored by Representative McKANE of Newcastle, Representative SAVIELLO of Wilton 
and 
Senators: DIAMOND of Cumberland, WESTON of Waldo, Representatives: CURLEY of 
Scarborough, DRISCOLL of Westbrook, DUGA Y of Cherryfield, MARRACHE of Waterville, 
NASS of Acton, WOODBURY of Yarmouth. 
Printed on recycled paper 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1. 14 MRS A §156, as amended by PL 1999, c. 63, §1 and 
affected by §3, is repealed. 
Sec.2. 14 MRSA §156-A is enacted to read: 
§156-A. Comparative negligence 
When a person suffers death or damage as a result partly of 
that person's own fault and partly of the fault of any other 
person or persons, a claim in respect of that death or damage may 
not be defeated by reason of the fault of the person suffering 
the damage, but the damages recoverable in respect thereof must 
be reduced to such extent as the jury thinks just and equitable 
having regard to the claimant's share in the responsibility for 
the damage. 
When damages are recoverable by a person by virtue of this 
section, subject to such reduction as is mentioned, 
the court 
shall instruct the jury to find and record the total damages that 
would have been recoverable if the claimant had not been at 
fault. and further instruct the jury to reduce the total damages 
by dollars and cents. 
and not by percentage. 
to the extent 
considered just and equitable. having regard to the claimant's 
share in the responsibility for the damages. 
and instruct the 
jury to return both amounts with the knowledge that the lesser 
figure is the final verdict in the case. 
As used in this section. "fault" means negligence. breach of 
statutory duty or other act or omission that gives rise to a 
liability in tort or would. apart from this section. give rise to 
the defense of contributory negligence. 
If a claimant is found by the jury to be equally at fault. 
the claimant may not recover. 
In a case involving multiparty defendants, the liability of 
each defendant for damages is several only and not joint except 
as otherwise provided in this section. 
Each defendant is liable 
only for the amount of damages allocated to that defendant in 
direct proportion to that defendant's percentage of fault. 
A. 
party is responsible for the fault of another person, or for 
payment of the proportionate share of another person, if: 
1. 
Actions in concert. 
Both the party and the other person 
were acting in concert; or 
2. 
Agent or servant. 
The other person was acting as an 
agent or servant of the party. 
Page l-LRI575(1) 
-
.. 
Sec. 3. 14 MRSA §165, sub-§3, ,B, as enacted by PL 1995, c. 
299, §l, is amended to read: 
B. 
Fault 
of 
the 
plaintiff 
to 
the 
extent 
that 
the 
plaintiff I s fault bars or reduces the plaintiff I s recovery 
under section 199 ~; or 
Sec. 4. 24 MRSA §2855, sub-§I, as amended by PL 1999, c. 668, 
§103, is further amended to read: 
1. 
Negligence and causation. 
At the conclusion of the 
presentations, 
the panel shall make its findings 
in writing 
within 30 days by answering the following questions: 
A. 
Whether the acts or omissions complained of constitute a 
deviation from the applicable standard of care by the health 
care practitioner or health care provider charged with that 
care; 
B. 
Whether the acts or omissions complained of proximately 
caused the injury complained of; and 
C. 
If 
negligence 
on 
the 
part 
of 
the 
health 
care 
practitioner or health care provider is found, whether any 
negligence on the part of the patient was 
equal to or 
greater than the negligence on the part of the practitioner 
or provider. 
If negligence on the part of the health care practitioner or 
health care provider is found and that negligence is determined 
to have caused injury to the patient. the panel shall specify the 
damages attributable to the health care practitioner or health 
care provider or to each in an action involving multiple health 
care practitioners or health care providers. 
Sec. 5. 24 MRSA §§2907 and 2908 are enacted to read: 
§2907. 
Damages in actions for professional negligence 
1. 
Definitions. 
As 
used 
in this 
section. 
unless 
the 
context 
otherwise 
indicates. 
the 
following 
terms 
have 
the 
following meanings. 
A. 
"Compensatory damages" means damages to compensate an 
injured party. 
There are 2 types of compensatory damages: 
(1) 
Economic damages. which consist of; 
(a) 
Current 
and 
future 
medical 
expenses, 
including the cost of medical care, medicines and 
medical supplies: and 
(b) 
Employment-related 
damages, 
including lost 
wages, 
lost or diminished earning capacity and 
lost earning opportunity: and 
(2) 
Noneconomic 
damages, 
which 
are 
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, 
hedonic 
damages, 
injury to reputation and all other nonpecuniary losses 
of any kind or nature. 
B. 
"Punitive damages" 
means 
damages 
intended to punish 
willful, malicious or fraudulent behavior and to discourage 
similar behavior by others. 
2. 
Damages 
recoverable. 
In an action for professional 
negligence, the following damages are recoverable: 
A. 
Compensatory damages. 
Economic damages are recoverable 
as proven without limit. 
Recoverable noneconomic damages 
are limited to $250,000: and 
B. 
Punitive 
damages. 
Recoverable 
punitive 
damages 
are 
limited to $75,000. 
3. 
Application. 
This section applies to all cases in which 
notices of claim are filed after the effective date of this 
section. 
§2908. 
CnllPupj catioDS of syuapathy or benevolence 
1. 
Definitions. 
As 
used 
in this 
section, 
unless 
the 
context 
otherwise 
indicates, 
the 
following 
terms 
have 
the 
following meanings. 
A. 
"Relative" means an alleged victim's spouse, parent. 
grandparent, 
stepfather, 
stepmother, 
child, 
grandchild, 
brother, 
sister, 
half brother, 
half sister or 
spouse's 
parents. 
"Relative" includes these relationships that are 
created as a result of adoption. 
In addition, "relative" 
includes any person who has a domestic partner relationship 
with 
an 
alleged 
victim. 
As 
used 
in 
this 
paragraph, 
"domestic partner" is a person who has registered or is 
eligible to register as a domestic partner pursuant to Title 
22, section 2710. 
• 
B. 
"Representative" 
means 
a 
legal 
guardian, 
attorney, 
person designated to make decisions on behalf of a patient 
under an advance directive or any person recognized in law 
or custom as a person's agent. 
C. 
"Unanticipated outcome" means the outcome of a medical 
treatment or procedure that differs from an expected result. 
2. 
Evidence of admissions. 
In any civil action brought by 
an 
alleged 
victim 
of 
an 
unanticipated 
outcome 
or 
in 
any 
arbi tration 
proceeding 
related 
to 
such 
civil 
action, 
any 
statement, affirmation, gesture or conduct expressing apology, 
fault, 
sympathy, 
commiseration, 
condolence, 
compassion 
or 
a 
general sense of benevolence that is made 
by 
a health care 
practitioner or health care provider or an employee of a health 
care practitioner or health care provider to the alleged victim, 
a 
relative of the alleged victim or a 
representative of the 
alleged 
victim 
and 
that 
relates 
to 
the 
discomfort, 
pain, 
suffering, injury or death of the alleged victim as the result of 
the unanticipated outcome is inadmissible 
as 
evidence of 
an 
admission of liability or as evidence of an admission against 
interest. 
SUMMARY 
This bill establishes the types of and limit of damages 
available 
in 
medical 
malpractice 
action 
in 
the 
State. 
Compensatory damages that are economic damages are unlimited. 
Compensatory damages that are noneconomic damages are limited to 
$250,000. 
Punitive damages are limited to $75,000. 
This bill prevents a health care practitioner's or health 
care provider employee's statement of sympathy or apology to a 
patient who has suffered an unanticipated medical outcome from 
being used against the practitioner or employee in a medical 
malpractice action. 
The 
screening 
defendant 
bill 
requires 
the 
findings 
of 
the 
prelitigation 
panels 
to specify the 
damages 
attributable to 
the 
or defendants in a medical malpractice action. 
The bill provides that each defendant in a civil action is 
liable only for damages in direct proportion to the defendant's 
percentage of fault.