A recent legislative development in California reminds us how lucky we are that Washington has no cap on non-economic damages.
Last year we were fortunate enough to represent a lovely young boy named Gabriel and his parents in a lawsuit they brought alleging that an intubation attempt hours after little Gabriel was born was performed negligently, causing him significant airway trauma and the need for hospitalization for the first 21 months of his life. In that case, the jury awarded Gabriel damages for both economic and non-economic harms. The economic harms were in the form of medical expenses, both incurred up to the time of trial and those that likely would be incurred in the future.
In addition, the jury allowed Gabriel $2,000,000 in non-economic damages – the kind of human damages that can be characterized by pain, suffering, loss of enjoyment of life, disfigurement, disability, and the like. Each of his parents was also allowed $1,000,000 to compensate them for their own losses endured having their son injured, hospitalized for so long, and fighting to help him catch up after suffering the resulting cognitive and behavioral delays that come with growing up in such an aberrant environment.
The jury allowed the compensation it believed was fair. Importantly, following the trial, no law in Washington forced the trial judge to lower any of the amounts. Specifically, most states in the Union have laws that prevent medical malpractice victims from receiving justice. This can include many things, from onerous pre-suit requirements that dissuade attorneys from assisting victims in bringing claims to caps on damages.
One such state that has a cap on damages is California. Since 1975, the most a medical malpractice victim could recover for their non-economic damages was capped at $250,000. So, even if a jury decided the person deserved $10,000,000 in non-economic damages, the most they would recover is a fraction of that.
Since that time, many attempts have failed at either increasing the cap or doing away with it all together. Recently, however, a compromise was reached in the California legislature that increases the cap now and will gradually increase it more over the next decade. Eventually, injured victims will be allowed to recover $750,000, and thereafter the amount will rise 2% every year to account for inflation.
While that is a big “win” for Californians, it should make all of us in Washington feel grateful. While our system does not allow for punitive damages, there are no substantive restrictions in Washington (other than one small administrative hurdle) on the ability of a jury to appraise a claim and decide what is justice.
You can read more about this change here.
