Medical Malpractice Cases: The Pros & Cons of a Cap on Non-Economic Damages

By Alicia M. Dodge, Albany Government Law Review Class of 2011


Is a $250,000.00 cap on non-economic damages in medical malpractice cases necessary?  The answer to this question will vary widely, depending whom you ask.  The New York State Bar Association and patient-rights advocacy groups strongly oppose this cap, while hospitals and physicians generally support it.[1]  The purpose of an economic damages award, such as loss of earnings, is to make an injured person “whole” again, and can generally be calculated with a fair amount of certainty.  On the other hand, an award of non-economic damages, such as pain and suffering or loss of consortium, “cannot be precisely measured in money,” and as such are often viewed as arbitrary rewards.[2]  

The unpredictable nature of non-economic damages awards can be seen in the case of Prindilus v. New York City Health & Hospitals Corporation, in which a New York jury awarded the medical malpractice plaintiff, Gaelle Prindilus, over $76 million dollars, in 1999.[3]  Plaintiff argued that the physicians who delivered her were negligent when they failed to perform a sonogram that would have indicated that the umbilical cord was tied around her neck, causing her to suffer brain damage.[4]  Seemingly excessive or unpredictable damages awards, such as in the Prindilus case, have sparked much debate over whether placing an arbitrary limit on non-economic damages is appropriate.

Proposal Number 131:

The Medicaid system in New York is the most expensive in the nation.[5]  In order to combat this, Governor Andrew Cuomo declared that he would propose to cut spending in New York.[6]  One important aspect of this platform included a proposal to slash “the state’s projected healthcare spending, specifically cutting $2.85 billion in Medicaid funding” for the 2011-2012 budget.[7]  In order to help implement these proposals, in January 2011 Cuomo appointed a “Medicaid Redesign Task Force,” made up of legislators and representatives of healthcare interests, such as the State Department of Health, the Greater New York Hospital Association, and the Healthcare Association of New York, among others.[8]  The Proposal to Redesign Medicaid, otherwise known as Proposal Number 131, included two main goals: 1) to create a medical indemnity fund for neurologically impaired infants; and 2)  to establish a non-economic damages cap in medical malpractice cases of $250,000.00.[9]

The budget for fiscal year 2011-12, passed with the inclusion of the medical indemnity fund, but the non-economic damages cap was excluded.[10]

Advantages of the Cap:

The Proposal to Redesign Medicaid stated that in 2009, New York hospitals spent $1.6 billion dollars in medical malpractice expenses, and estimated that the cap would save hospitals $384 million dollars.[11]  The cap would also result in a twenty four percent reduction in insurance premiums for hospitals and physicians.[12]

Proponents argued that the unpredictable nature of non-economic damages awards have caused the price of medical malpractice insurance premiums to increase greatly for physicians and hospitals, in turn raising the price to practice medicine in general.[13]  Additionally, proponents alleged that it has led to the practice of so-called “defensive medicine,” in which physicians might elect a course of treatment that carries with it a lower possibility of litigation, instead of what might be the most appropriate medical treatment for the patient.[14]  It was also viewed by some that “the current civil justice system creates a ‘culture of fear’ for doctors, making them reluctant to report medical errors . . . because they are afraid that revealing such information will then be ‘used against them in a lawsuit.’”[15]  These reasons all addressed the concern that without a cap on non-economic damages, the provision of health care and treatment would suffer.  Cecil Wilson, MD, the president of the American Medical Association, explained that “[e]very dollar spent on the broken medical liability system is a dollar that cannot be used to improve patient care.”[16]

Disadvantages of the Cap:

The $250,000.00 cap may seem to be an arbitrary number, and the problem with such a number is that “these caps are applied across-the-board to all cases without regard to their unique facts and circumstances.”[17]  Additionally, the statutory cap does nothing to alleviate the concerns associated with non-economic damage awards; it does not provide guidance or address the difficulties with assigning a monetary value to such damages.[18]

The New York State Bar Association strongly dissented to the Proposal.[19]  One objection was in regards to the make-up of the Medicaid Redesign Team, which included members of the healthcare industry, but no representatives of the legal field.[20]  The State Bar Association asserted that “[t]he civil justice system is fundamentally different from the state’s Medicaid system[,]” and that in order to properly address any proposed changes to medical malpractice cases would require representation from members of the legal profession.[21]


Even though the statutory cap on non-economic damages did not pass this fiscal year, that does not mean it never will.  One main fault of the cap proposed in Proposal Number 131 seemed to be the lack of representation by members of the State Bar.  It will be interesting to see what changes or compromises might be made if the future proposals do include such legal representation.

[1] New York Gov. Cuomo Proposes Malpractice Damage Cap as Means to Shore-up Budget, Loses Fight with Assembly, The Medical Liability Monitor Blog (Apr. 7, 2011), [hereinafter The Medical Liability Monitor Blog].

[2] Ryan T. Emery, Comment, Unwise and Unnecessary: Statutory Caps on Non-Economic Damages in Medical Malpractice Cases and the Appellate Review Alternative, 69 Alb. L. Rev. 913, 915 (2006).

[3] Id. at 913 (pending appeal, plaintiff settled out of court for $9 million dollars, possibly due to the uncertainty of appellate review); see also Prindilus v. N.Y. City Health & Hosp. Corp., 743 N.Y.S.2d 770 (N.Y. App. Div. 2002).

[4] Emery, supra note 2, at 913.

[5] The Medical Liability Monitor Blog, supra note 1.

[6] Id.

[7] Id.

[8] Id.; Joel Stashenko, State Bar Blasts Proposal to Cap Medical Malpractice Awards, Pegalis & Erickson, LLC (Mar. 1, 2011),

[9] N.Y. State Bar Ass’n, Proposal to Redesign Medicaid 131 (2011) [hereinafter Proposal to Redesign Medicaid], available at

[10] The Medical Liability Monitor Blog, supra note 1.

[11] Proposal to Redesign Medicaid, supra note 9, at 136.

[12] Id.

[13] Emery, supra note 2, at 916.

[14] Id.

[15] Id.

[16] The Medical Liability Monitor Blog, supra note 1.

[17] Emery, supra note 2, at 926-27.

[18] Id. at 927-28.

[19] N.Y. County Lawyers’ Ass’n, New York County Lawyers’ Association Comments on State Bar Committee on Tort System Memorandum 1 (2011), available at

[20] Id. at 2.

[21] Stephen P. Younger, NYSBA Opposes Proposal Number 131, New York Real Estate Lawyers’ Blog (Mar. 2, 2011),

8 thoughts on “Medical Malpractice Cases: The Pros & Cons of a Cap on Non-Economic Damages”

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  2. Nice analysis , I am thankful for the details , Does anyone know where my assistant could obtain a blank a form version to fill in ?

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