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Medical Liability/Medical Malpractice Laws

Medical Liability/Medical Malpractice Laws

Last Updated: August 15, 2011
Incorporates 2011 enactments.

NCSL Staff Contact: Heather Morton, Denver, (303) 364-7700

The chart below summarizes state medical liability/medical malpractice laws regarding the following provisions:

  • Damage Award Limits or Cap

Regarding damage award limits or caps: 17 jurisdictions do not have a damage award limit or cap, 35 jurisdictions have a limit or cap. Connecticut and Minnesota allow for a court to review of the damage awarded, but does not specify a specific limit or cap.

All states have statutes of limitation for medical liability/malpractice claims. Thirty-six states, Puerto Rico and the Virgin Islands have special provisions for malpractice claims filed by minors. Twenty states have special provisions regarding foreign objects.

  • Joint and Several Liability

Regarding joint and several liability: 27 jurisdictions allow for joint and several liability (13 regular, 14 modified), California has modified joint liability, 18 jurisdictions have several liability, seven jurisdictions have modified several liability and the District of Columbia provides for joint and several liability for compensatory damages and several liability for punitive damages.

  • Limits on Attorney Fees

Twenty-eights states have provisions that place limitations on attorneys' fees. Twelve states, Guam and Puerto Rico sliding fee schedules.

  • Periodic Payments

Regarding periodic payments: 30 jurisdictions either allow or require periodic payments for damages associated with medical liability or malpractice cases. Statutes in Alabama, Arizona, Arkansas, Georgia and New Hampshire have been held unconstitutional.

  • Patient Compensation or Injury Fund

Regarding patient compensation or injury funds: 13 states have provisions allowing for a patient compensation or injury fund. Oklahoma has created a Health Care Indemnity Fund Task Force.

Thirty-six states, the District of Columbia and Guam have provisions allowing medical professionals to make apologies or sympathetic gestures.

  • Pre-trial Alternative Dispute Resolution and Screening Panels

Twenty-seven states, the District of Columbia, Guam and Puerto Rico have specific provisions providing for alternative dispute resolution (arbitration, mediation or settlement conferences) in medical liability or malpractice cases. Seventeen jurisdictions—Alaska, Delaware, Hawaii, Idaho, Indiana, Kansas, Louisiana, Maine, Massachusetts, Montana, Nebraska, New Hampshire, New Mexico, Utah, Virginia, the Virgin Islands and Wyoming—have requirements that medical liability or malpractice cases be heard by a screening panel before trial.

  • Affidavit or Certificate of Merit

Twenty-two states have requirements for filing an affidavit or certificate of merit in order for a medical liability/malpractice claim to move forward.

  • Expert Witness Standards

Thirty-one states have provisions regarding minimum qualificiations for expert witnesses who testify in medical malpractice/liability cases.

  • Medical or Peer Review Panels

All but three jurisdictions—New Mexico, New York and Puerto Rico—have provisions regarding medical or peer review panels.

 

 

AL | AK | AZ | AR | CA | CO | CT | DE | FL | GA | GU | HI | ID | IL | IN | IA | KS | KY | LA | ME | MD | MA | MI | MN | MS | MO 
MT | NE | NV | NH | NJ | NM | NY | NC | ND | OH | OK | OR | PA | PR | RI | SC | SD | TN | TX | UT | VT | VA | VI | WA | WV | WI | WY
States: Medical Liability Provision: Summary of Provision:
Alabama
Damage Award Limit or Cap No limitations. Limits on noneconomic damages (§6-5-547) declared unconstitutional by state Supreme Court (see Mobile Infirmary Medical Center v. Hodgen, 884 So.2d (Ala. 2003)).
Joint and Several Liability Joint and several liability.
Limits on Attorney Fees No limitations.
Periodic Payments Requirement for periodic payments for future damages in excess of $150,000 (§6-5-543) declared unconstitutional by state Supreme Court (see Lloyd Noland Hosp. v. Durham, 906 So.2d 157 (Ala. 2005)).
Patient Compensation or Injury Fund None provided.
Pre-Trial Alternative Dispute Resolution and Screening Panels §6-5-485. The parties may agree to settle such dispute by arbitration. Such agreement must be in writing and signed by both parties. Any such agreement shall be valid, binding, irrevocable, and enforceable, save upon such grounds as exist in law or in equity for the revocation of any contract.
Affidavit or Certificate of Merit No statute provided specific to medical liability/malpractice cases.
Expert Witness Standards §6-5-548. A health care provider may testify as an expert witness in any action for injury or damages against another health care provider based on a breach of the standard of care only if he or she is a "similarly situated health care provider" as defined.
Medical or Peer Review Panels §6-5-333. Liability and confidentiality provisions for serving on peer review or utilization and quality control committee or professional standards review committee or a similar committee
§34-24-58. Decisions, opinions, etc., of utilization review committee privileged
Alaska
Damage Award Limit or Cap §09.55.549. Noneconomic damages limited to $250,000; limited to $400,000 for wrongful death or injury over 70 percent disabling; limits not applicable to intentional or reckless acts or omissions.
§9.17.020. Punitive damages limited to the greater of three times the amount of compensatory damages or $500,000. Except as provided, if the conduct was motivated by financial gain and the adverse consequences of the conduct were actually known by the defendant or the person responsible for making policy decisions on behalf of the defendant, it may award an amount of punitive damages not to exceed the greatest of (1) four times the amount of compensatory damages awarded to the plaintiff in the action; (2) four times the aggregate amount of financial gain that the defendant received as a result of the defendant's misconduct; or (3) the sum of $7,000,000.
Joint and Several Liability Several liability. §09.17.080. The court shall enter judgment against each party liable on the basis of several liability in accordance with that party's percentage of fault.
Limits on Attorney Fees §09.60.080. If an attorney contracts for or collects a contingency fee in connection with an action for personal injury, death, or property damage and the damages awarded by a court or jury include an award of punitive damages, the contingent fee due the attorney shall be calculated before that portion of punitive damages due the state under AS 09.17.020(j) has been deducted from the total award of damages.
Periodic Payments §09.55.548. Permitted for future damages, including damages for future medical treatment, care or custody, loss of future earnings, or loss of bodily function of the claimant.
§09.17.040. Procedure for periodic payments. Payments may be modified only in the event of the death of the judgment creditor, in which case payments may not be reduced or terminated, but shall be paid to persons to whom the judgment creditor owed a duty of support, as provided by law, immediately before death. In the event the judgment creditor owed no duty of support to dependents at the time of the judgment creditor's death, the money remaining shall be distributed in accordance with a will of the deceased judgment creditor accepted into probate or under the intestate laws of the state if the deceased had no will.
Patient Compensation or Injury Fund None provided.
Pre-Trial Alternative Dispute Resolution and Screening Panels §09.55.535. A patient and any health care provider may execute an agreement to submit to arbitration any dispute, controversy, or issue arising out of care or treatment by the health care provider during the period that the agreement is in force or that has already arisen between the parties. Execution of an agreement under this subsection by a patient may not be made a prerequisite to receipt of care or treatment by the health care provider.
§09.55.536. If the parties do not agree to arbitrate, the court shall appoint within 20 days after the filing of an answer to a summons and complaint a three-person expert advisory panel unless the court decides that an expert advisory opinion is not necessary for a decision in the case. Not more than 30 days after selection of the panel, the panel shall make a written report to the parties and to the court, answering the following questions and other questions submitted to the panel by the court in sufficient detail to explain the case and the reasons for the panel's answers: (1) Why did the claimant seek medical care? (2) Was a correct diagnosis made? If not, what was incorrect about the diagnosis? (3) Was the treatment or lack of treatment appropriate? If not, what was inappropriate about the treatment or lack of treatment? (4) Was the claimant injured during the course of evaluation or treatment or by failure to diagnose or treat? (5) If the answer to question 4 is "yes," what is the nature and extent of the medical injury? (6) What specifically caused the medical injury? (7) Was the medical injury caused by unskillful care? Explain. (8) If a medical injury had not occurred, what would have been the likely outcome of the medical case?
Affidavit or Certificate of Merit No statute provided specific to medical liability/malpractice cases.
Expert Witness Standards §09.20.185. In an action based on professional negligence, a person may not testify as an expert witness on the issue of the appropriate standard of care unless the witness is (1) a professional who is licensed in this state or in another state or country; (2) trained and experienced in the same discipline or school of practice as the defendant or in an area directly related to a matter at issue; and (3) certified by a board recognized by the state as having acknowledged expertise and training directly related to the particular field or matter at issue.
Medical or Peer Review Panels §18.23.005 et seq. Medical review organizations
Arizona
Damage Award Limit or Cap No limitations. Arizona Constitution Article 2, § 31: No law shall be enacted in this state limiting the amount of damages to be recovered for causing the death or injury of any person.
Joint and Several Liability Several liability. §12-2506. The liability of each defendant is several only and is not joint, except that a party is responsible for the fault of another person, or for payment of the proportionate share of another person, if any of the following applies: 1.) Both the party and the other person were acting in concert. 2.) The other person was acting as an agent or servant of the party. 3.) The party's liability for the fault of another person arises out of a duty created by the federal employers' liability act, 45 U.S. Code §51.
Limits on Attorney Fees §12-568. The court shall, at the request of any party in any action under this chapter, determine the reasonableness of each party's attorneys' fees.
Periodic Payments Election for periodic payments (§12-581 et seq.) declared unconstitutional by state Supreme Court (see Smith v. Myers, 181 Ariz. 11, 887 P.2d 541 (1994)).
Patient Compensation or Injury Fund None provided.
Pre-Trial Alternative Dispute Resolution and Screening Panels No statute provided specific to medical liability/malpractice cases.
Affidavit or Certificate of Merit §12-2603. Must certify in writing whether or not expert opinion testimony is necessary to prove the health care professional's standard of care or liability for the claim. If the claimant so certifies, the claimant shall serve a preliminary expert opinion affidavit with the initial disclosures that are required by Rule 26.1, Arizona Rules of Civil Procedure.
Expert Witness Standards §12-2604. In an action alleging medical malpractice, a person shall not give expert testimony on the appropriate standard of practice or care unless the person is licensed as a health professional in this state or another state and the person meets the following criteria: 1. If the party against whom or on whose behalf the testimony is offered is or claims to be a specialist, specializes at the time of the occurrence that is the basis for the action in the same specialty or claimed specialty as the party against whom or on whose behalf the testimony is offered. If the party against whom or on whose behalf the testimony is offered is or claims to be a specialist who is board certified, the expert witness shall be a specialist who is board certified in that specialty or claimed specialty. 2. During the year immediately preceding the occurrence giving rise to the lawsuit, devoted a majority of the person's professional time to either or both of the following: (a) The active clinical practice of the same health profession as the defendant and, if the defendant is or claims to be a specialist, in the same specialty or claimed specialty. (b) The instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health profession as the defendant and, if the defendant is or claims to be a specialist, in an accredited health professional school or accredited residency or clinical research program in the same specialty or claimed specialty. 3. If the defendant is a general practitioner, the witness has devoted a majority of the witness's professional time in the year preceding the occurrence giving rise to the lawsuit to either or both of the following: (a) Active clinical practice as a general practitioner. (b) Instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health profession as the defendant.
Medical or Peer Review Panels §36-441. Health care utilization committee immunity
§36-445 et seq. Review of certain health care practices
§36-2401 et seq. Health care quality assurance
Arkansas
Damage Award Limit or Cap §16-55-205 to 16-55-209. Punitive damages award for each plaintiff shall not be more than the greater of the following: (1) $250,000; or (2) Three times the amount of compensatory damages awarded in the action, not to exceed $1 million. Limits adjusted for inflation at three-year intervals. Limits shall not apply when the finder of fact: (1) Determines by clear and convincing evidence that, at the time of the injury, the defendant intentionally pursued a course of conduct for the purpose of causing injury or damage; and (2) Determines that the defendant's conduct did, in fact, harm the plaintiff.
Joint and Several Liability Several liability. §16-55-201. Defendants are proportionally liable for damages awarded according to percentage of fault.
Limits on Attorney Fees No limitations.
Periodic Payments Statute (§16-114-208) declared unconstitutional by federal court (see McMullin v. U.S., 515 F.Supp.2d 904 (E.D. Ark. 2007)).
Patient Compensation or Injury Fund None provided.
Pre-Trial Alternative Dispute Resolution and Screening Panels No statute provided specific to medical liability/malpractice cases.
Affidavit or Certificate of Merit §16-114-209(b) declared unconstitutional by state court (see Summerville V. Thrower, 253 S.W.3d. 415 (2007)).
Expert Witness Standards §16-114-206. In any action for medical injury, when the asserted negligence does not lie within the jury's comprehension as a matter of common knowledge, the plaintiff shall have the burden of proving: (1) By means of expert testimony provided only by a medical care provider of the same specialty as the defendant, the degree of skill and learning ordinarily possessed and used by members of the profession of the medical care provider in good standing, engaged in the same type of practice or specialty in the locality in which he or she practices or in a similar locality; (2) By means of expert testimony provided only by a medical care provider of the same specialty as the defendant that the medical care provider failed to act in accordance with that standard; and (3) By means of expert testimony provided only by a qualified medical expert that as a proximate result thereof the injured person suffered injuries that would not otherwise have occurred.
§16-114-207. In any action for medical injury: (1) Rule 702 of the Uniform Rules of Evidence shall govern the qualifications of expert witnesses.
Medical or Peer Review Panels §20-9-501 et seq. Peer review committees
California
Damage Award Limit or Cap Civil Code §3333.2. $250,000 limit for noneconomic damages.
Joint and Several Liability Modified joint liability. Civil Code §1431.2. Defendants are proportionally liable for noneconomic damages according to percentage of fault.
Limits on Attorney Fees Business and Professions §6146. Sliding scale, not to exceed 40 percent of first $50,000, 33-1/3 percent of next $50,000, 25 percent of next $500,000, and 15 percent of damages exceeding $600,000.
Periodic Payments Civil Procedure §667.7. If the award for future damages equals or exceeds $50,000, a superior court shall, at the request of either party, enter a judgment ordering that money damages or its equivalent for future damages of the judgment creditor be paid in whole or in part by periodic payments rather than by a lump-sum payment. Money damages awarded for loss of future earnings shall not be reduced or payments terminated by reason of the death of the judgment creditor, but shall be paid to persons to whom the judgment creditor owed a duty of support, as provided by law, immediately prior to his death. In such cases the court which rendered the original judgment, may, upon petition of any party in interest, modify the judgment to award and apportion the unpaid future damages in accordance with this subdivision.
Patient Compensation or Injury Fund None provided.
Pre-Trial Alternative Dispute Resolution and Screening Panels Code of Civil Procedure §1295. Allows health care providers and patients to contract for the arbitration of disputes. Entering contract is binding and removes option for trial.
Health & Safety Code §1363.1. Any health care service plan that requires binding arbitration to settle disputes must disclose whether the plan uses binding arbitration to settle disputes, including specifically whether the plan uses binding arbitration to settle claims of medical malpractice.
Affidavit or Certificate of Merit No statute provided specific to medical liability/malpractice cases.
Expert Witness Standards Health & Safety Code §1799.110. In any action for damages involving a claim of negligence against a physician and surgeon providing emergency medical coverage for a general acute care hospital emergency department, the court shall admit expert medical testimony only from physicians and surgeons who have had substantial professional experience within the last five years while assigned to provide emergency medical coverage in a general acute care hospital emergency department. For purposes of this section, "substantial professional experience" shall be determined by the custom and practice of the manner in which emergency medical coverage is provided in general acute care hospital emergency departments in the same or similar localities where the alleged negligence occurred.
Medical or Peer Review Panels Business & Professions Code §805 et seq. Peer review bodies
Evidence Code §1157 et seq. Confidentiality of peer review bodies
Colorado
Damage Award Limit or Cap §13-64-302. $1 million total limit on all damages; $300,000 noneconomic limitation.
Joint and Several Liability Several liability. §13-21-111.5. Defendants are proportionally liable for damages awarded according to percentage of fault, unless act proved deliberate.
Limits on Attorney Fees No limitations.
Periodic Payments §13-64-201 et seq. If the award for future damages exceeds the present value of $150,000, the trial judge shall enter a judgment ordering that awards for future damages be paid by periodic payments rather than by a lump-sum payment. Money damages awarded for loss of future earnings shall not be reduced or payments terminated by reason of the death of the judgment creditor. Any such remaining periodic payments shall be paid to the heirs and devisees of the judgment creditor. Payments for future damages other than loss of future earnings shall cease at the death of the judgment creditor.
Patient Compensation or Injury Fund None provided.
Pre-Trial Alternative Dispute Resolution and Screening Panels §13-64-403. An arbitration agreement shall be a voluntary agreement between a patient and a health care provider and no medical malpractice insurer shall require a health care provider to utilize arbitration agreements as a condition of providing medical malpractice insurance to such health care provider. Making the use of arbitration agreements a condition to the provision of medical malpractice insurance shall constitute an unfair insurance practice and shall be subject to remedies and penalties.
Affidavit or Certificate of Merit §13-20-602. A certificate of review shall be executed by the attorney for the plaintiff or complainant declaring: (I) That the attorney has consulted a person who has expertise in the area of the alleged negligent conduct; and (II) That the professional who has been consulted pursuant to subparagraph (I) of this paragraph (a) has reviewed the known facts, including such records, documents, and other materials which the professional has found to be relevant to the allegations of negligent conduct and, based on the review of such facts, has concluded that the filing of the claim, counterclaim, or cross claim does not lack substantial justification within the meaning of §13-17-102 (4).
Expert Witness Standards §13-64-401. No person shall be qualified to testify as an expert witness concerning issues of negligence in any medical malpractice action or proceeding against a physician unless he not only is a licensed physician but can demonstrate by competent evidence that, as a result of training, education, knowledge, and experience in the evaluation, diagnosis, and treatment of the disease or injury which is the subject matter of the action or proceeding against the physician defendant, he was substantially familiar with applicable standards of care and practice as they relate to the act or omission which is the subject of the claim on the date of the incident. The court shall not permit an expert in one medical subspecialty to testify against a physician in another medical subspecialty unless, in addition to such a showing of substantial familiarity, there is a showing that the standards of care and practice in the two fields are similar. The limitations in this section shall not apply to expert witnesses testifying as to the degree or permanency of medical or physical impairment.
Medical or Peer Review Panels §12-36.5-101 et seq. Professional review proceedings
Connecticut
Damage Award Limit or Cap §52-228c. If the jury renders a verdict specifying noneconomic damages in an amount exceeding $1 million, the court shall review the evidence presented to the jury to determine if the amount of noneconomic damages specified in the verdict is excessive as a matter of law in that it so shocks the sense of justice as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption. If the court so concludes, it shall order a remittitur and, upon failure of the party so ordered to remit the amount ordered by the court, it shall set aside the verdict and order a new trial.
Joint and Several Liability Modified several liability. §52-572h. Defendants are proportionally liable according to percentage of fault for damages awarded. If, within one year of final judgment, the damages are uncollectible, then court may reallocate the liability for the uncollected portion of the judgment based upon the other joint tortfeasors' relative degrees of fault.
Limits on Attorney Fees §52-251c. Sliding scale, not to exceed an amount equal to a percentage of 33-1/3 percent of first $300,000; 25 percent of next $300,000; 20 percent of next $300,000; 15 percent of next $300,000; and 10 percent of damages exceeding $1.2 million. A claimant may waive the percentage limitations of said subsection if the claim or civil action is so substantially complex, unique or different from other wrongful death, personal injury or property damage claims or civil actions as to warrant a deviation from such percentage limitations.
Periodic Payments §52-225d. If the amount of recoverable economic and recoverable noneconomic damages exceeds $200,000, the court shall provide the parties 60 days to negotiate and consent to an agreement to be incorporated into an amended judgment to provide for the payment of all such damages remaining in excess of $200,000 in a lump sum or in periodic installment payments or in any combination thereof. If the court enters judgment for periodic installment payments and a claimant dies before the end of the period during which such periodic installment payments are to be made, the obligation of the defendant(s) to make such periodic installment payments shall not cease until the remaining financial obligation of the defendant(s) has, in accordance with an order of a court having jurisdiction in the matter, been paid into the estate of the claimant in periodic installment payments or distributed to the beneficiary or beneficiaries of the estate as such court may direct and such distribution shall be binding as to any party making periodic installment payments hereunder.
Patient Compensation or Injury Fund None provided.
Pre-Trial Alternative Dispute Resolution and Screening Panels No statute provided specific to medical liability/malpractice cases.
Affidavit or Certificate of Merit §52-190a. The complaint shall contain a certificate of the attorney that the attorney made such reasonable inquiry to give rise to a good faith belief that grounds exist for the action against each defendant. To show the existence of such good faith, the claimant shall obtain a written and signed opinion of a similar health care provider, as defined in §52-184c, that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion.
Expert Witness Standards §52-184c. Any health care provider may testify as an expert in any action if he: (1) Is a "similar health care provider" as specified; or (2) is not a similar health care provider but, to the satisfaction of the court, possesses sufficient training, experience and knowledge as a result of practice or teaching in a related field of medicine, so as to be able to provide such expert testimony as to the prevailing professional standard of care in a given field of medicine. Such training, experience or knowledge shall be as a result of the active involvement in the practice or teaching of medicine within the five-year period before the incident giving rise to the claim.
Medical or Peer Review Panels §19a-17b. Peer review
Delaware
Damage Award Limit or Cap 18 §6855. Punitive damages may be awarded only on finding of malicious intent to injure or willful or wanton misconduct. No specified limit.
Joint and Several Liability Joint and several liability
Limits on Attorney Fees 18 §6865. Sliding scale, not to exceed 35 percent of first $100,000; 25 percent of next $100,000; and 10 percent of all damages exceeding $200,000. A claimant has the right to elect to pay for the attorney's services on a mutually satisfactory per diem basis.
Periodic Payments 18 §6864. The court may, after making a determination as to the amount of such judgment which was awarded as compensation for future pain and suffering, if any, the amount of such judgment awarded for future expenses of care of the injured party made necessary by reason of the injury involved, if any, and the amount of such judgment awarded as compensation for any other future damages, if any, direct that: (1) There shall be deducted from the award, and paid to the plaintiff, an amount sufficient to cover the plaintiff's attorney's fees, expenses related to the litigation, expenses incurred for past health care and pain and suffering incurred as of the date of said payment; (2) The remainder of the award shall be paid to the plaintiff in equal or unequal monthly installments to be fixed by the Court for a period of time to be fixed by the Court; provided, however, that in addition thereto, medical expenses incurred and paid by plaintiff not otherwise reimbursed shall also be paid to plaintiff from the undistributed portion of the award; (3) Each monthly installment shall, in addition, include a payment of interest on the then unpaid balance at a rate to be fixed by the Court. If a plaintiff receiving installment payments of a judgment shall die before the expiration of a 20-year period from the date of the award, and prior to the receipt by the plaintiff or on the plaintiff's behalf of all such installment payments, the Court shall deduct from the total of the installment payments then remaining unpaid the amount thereof representing compensation for future pain and suffering and future expenses of care made necessary by the injury involved, shall cause the balance of all such installments after such deduction to be paid to the estate of the plaintiff so dying and shall cause such judgment to be marked satisfied. If the plaintiff receiving installment payments shall die after the expiration of a 20-year period from the date of the award, then the payment shall automatically terminate as of the date of the plaintiff's death.
Patient Compensation or Injury Fund None provided.
Pre-Trial Alternative Dispute Resolution and Screening Panels 18 §6803 et seq. Medical Negligence Review Panels shall be composed of five voting members and shall include two health care provider members, at least one of whom shall be a physician, and the other one of whom shall be, if available, from one of the health care disciplines involved in such action, one attorney and two lay persons who are not health care providers nor licensed to practice law nor associated with the insurance industry.
18 §6811. The panel shall, within 30 days, render to the Court a written opinion, including any minority opinion or opinions, signed by the chairperson expressing one or more of the following findings: (1) The evidence supports the conclusion that the defendant or defendants failed to comply with the appropriate standard of care; (2) The evidence does not support the conclusion that the defendant or defendants failed to meet the applicable standard of care; (3) There is a material issue of fact, not requiring expert opinion, bearing on liability for consideration by the Court or jury, which issue of fact shall be identified in the opinion; or (4) The conduct complained of was or was not a factor in the resultant damages, and if so, whether the plaintiff suffered: a. Any disability and the extent and duration of the disability; and b. Any permanent impairment and the percentage of the impairment.
18 §6812. The opinion reached by the medical negligence review panel shall be admissible as prima facie evidence in the pending Superior Court action brought by the claimant, but such opinion shall not be conclusive.
Affidavit or Certificate of Merit 18 §6853. No healthcare negligence lawsuit shall be filed in this state unless the complaint is accompanied by: an affidavit of merit as to each defendant signed by an expert witness, as defined in §6854 of this title, and accompanied by a current curriculum vitae of the witness, stating that there are reasonable grounds to believe that there has been healthcare medical negligence committed by each defendant.
Expert Witness Standards 18 §6853. No liability shall be based upon asserted negligence unless expert medical testimony is presented as to the alleged deviation from the applicable standard of care in the specific circumstances of the case and as to the causation of the alleged personal injury or death, except that such expert medical testimony shall not be required if a medical negligence review panel has found negligence to have occurred and to have caused the alleged personal injury or death and the opinion of such panel is admitted into evidence; provided, however, that a rebuttable inference that personal injury or death was caused by negligence shall arise where evidence is presented that the personal injury or death occurred in any one or more of the following circumstances: (1) A foreign object was unintentionally left within the body of the patient following surgery; (2) An explosion or fire originating in a substance used in treatment occurred in the course of treatment; or (3) A surgical procedure was performed on the wrong patient or the wrong organ, limb or part of the patient's body.
18 §6854. No person shall be competent to give expert medical testimony as to applicable standards of skill and care unless such person is familiar with the degree of skill ordinarily employed in the field of medicine on which he or she will testify.
Medical or Peer Review Panels §24 §1768. Immunity of boards of review
District of Columbia
Damage Award Limit or Cap No applicable statute.
Joint and Several Liability Joint and several liability for compensatory damages and several liability for punitive damages. Defendants are proportionally liable according to percentage of fault for punitive damages awarded.
Limits on Attorney Fees No limitations.
Periodic Payments No applicable statute.
Patient Compensation or Injury Fund None provided.
Pre-Trial Alternative Dispute Resolution and Screening Panels §16-2821 et seq. After an action is filed in the court against a healthcare provider alleging medical malpractice, the court shall require the parties to enter into mediation, without discovery or, if all parties agree with only limited discovery that will not interfere with the completion of mediation within 30 days of the Initial Scheduling and Settlement Conference ("ISSC"), prior to any further litigation in an effort to reach a settlement agreement. The mediation schedule shall be included in the scheduling conference order following the ISSC. Unless all parties agree, the stay of discovery shall not be more than 30 days after the ISSC.
§16-2825. Each party shall submit a confidential mediation statement to the mediator no later than 10 days prior to the initial mediation session. Unless not already stated in the complaint and answer, the mediation statement shall: (1) Include a brief summary of facts; (2) Identify the issues of law and fact in dispute and summarize the party's position on those issues; (3) Discuss whether there are issues of law or fact the early resolution of which could facilitate early settlement or narrow the scope of the dispute; (4) Identify the attorney who will represent the party at the mediation session and the person with settlement authority who will attend the mediation session; (5) Include any documents or materials relevant to the case which may assist the mediator and advance the purposes of the mediation session; and (6) Present any other matters that may assist the mediator and facilitate the mediation.
§16-2827. The mediation session shall be confidential. All proceedings at the mediation, including any statement made by any party, attorney, or other participant, shall be privileged and shall not be construed as an admission against interest. Any statement at such proceedings shall not be used in court in connection with the case or any other litigation. A party shall not be bound by anything said or done at the mediation unless a settlement is reached.
Affidavit or Certificate of Merit No statute provided specific to medical liability/malpractice cases.
Expert Witness Standards No statute provided specific to medical liability/malpractice cases.
Medical or Peer Review Panels §44-801 et seq. Peer review body
Florida
Damage Award Limit or Cap §766.118. Noneconomic damages limited to $500,000 per claimant. Noneconomic damages shall not exceed $1 million for cases involving death or permanent vegetative state, or 1) a manifest injustice would occur unless increased noneconomic damages are awarded, based on a finding that because of the special circumstances of the case, the noneconomic harm sustained by the injured patient was particularly severe; and 2) The trier of fact determines that the defendant's negligence caused a catastrophic injury to the patient. Noneconomic damages limited to $150,000 per claimant for cases arising from medical negligence of practitioners providing emergency services and care, the total noneconomic damages recoverable by all claimants from all such practitioners shall not exceed $300,000.
§768.73. Punitive damages limited to the greater of three times amount of compensatory damages or $500,000. Where the wrongful conduct was motivated solely by unreasonable financial gain and the unreasonably dangerous nature of the conduct, together with the high likelihood of injury resulting from the conduct, was actually known by the managing agent, director, officer, or other person responsible for making policy decisions on behalf of the defendant, the amount of punitive damages shall not to exceed the greater of four times the amount of compensatory damages or $2 million. Where the defendant had a specific intent to harm, and the defendant's conduct did in fact harm the claimant, there shall be no cap on punitive damages.
Joint and Several Liability Several liability. §768.81. The court shall enter judgment against each party liable on the basis of such party's percentage of fault and not on the basis of the doctrine of joint and several liability.
§766.112. The court shall enter judgment against the teaching hospital on the basis of such party's percentage of fault and not on the basis of the doctrine of joint and several liability. The court shall enter judgment against the board of trustees on the basis of the board's percentage of fault and not on the basis of the doctrine of joint and several liability.
§766.207. Each defendant who submits to voluntary binding arbitration under this section to determine damages shall be jointly and severally liable for all damages assessed pursuant to this section.
Limits on Attorney Fees Florida Constitution, Article I, Section 26. In any medical liability claim involving a contingency fee, the claimant is entitled to receive no less than 70 percent of the first $250,000 in all damages received by the claimant, exclusive of reasonable and customary costs, whether received by judgment, settlement, or otherwise, and regardless of the number of defendants. The claimant is entitled to 90 percent of all damages in excess of $250,000, exclusive of reasonable and customary costs and regardless of the number of defendants.
Fla. Atty. Conduct Reg. §4-1.5. Attorneys’ fees in excess of the following amounts are presumed unreasonable: (1) In cases that settle before filing an answer or appointing an arbitrator: 33-1/3 percent of any recovery up to $1 million; plus 30 percent of any recovery between $1 million and $2 million; plus 20 percent of any portion exceeding $2 million. (2) In cases after filing an answer, demanding an arbitrator through the entry of judgment: 40 percent of any recovery up to $1 million; plus 30 percent of any recovery between $1 million and $2 million; plus 20 percent of any portion exceeding $2 million. (3) If all defendants admit liability and request a trial only on damages: 33-1/3 percent of any recovery up to $1 million; plus 20 percent of any recovery between $1 million and $2 million; plus 15 percent of any portion exceeding $2 million. An additional five percent of any recovery after institution of any appellate proceeding is filed or post-judgment relief or action is required for recovery on the judgment.
Periodic Payments §768.78. In any action for damages based on personal injury or wrongful death arising out of medical malpractice, whether in tort or contract, in which the trier of fact makes an award to compensate the claimant for future economic losses, payment of amounts intended to compensate the claimant for these losses shall be made by one of the following means: 1. The defendant may make a lump-sum payment for all damages so assessed, with future economic losses and expenses reduced to present value; or 2. The court shall, at the request of either party, enter a judgment ordering future economic damages, as itemized pursuant to §768.77, to be paid by periodic payments rather than lump sum.
Patient Compensation or Injury Fund §766.105. Patient’s Compensation Fund
§766.301 et seq. Florida Birth-Related Neurological Injury Compensation Plan
Pre-Trial Alternative Dispute Resolution and Screening Panels §766.107. The court may require, upon motion by either party, that the claim be submitted to nonbinding arbitration. The panel shall consider all relevant evidence and decide the issues of liability, amount of damages, and apportionment of responsibility among the parties. Punitive damages may not be awarded by the arbitration panel. The decision of the arbitration panel shall not be binding. If all parties accept the decision of the arbitration panel, that decision shall be deemed a settlement of the case and it shall be dismissed with prejudice. After the arbitration award is rendered, any party may demand a trial de novo in the circuit court by filing with the clerk of the circuit court and all parties such notice as is required by rules adopted by the Supreme Court. At the trial de novo, the court shall not admit evidence that there has been an arbitration proceeding, the nature or the amount of the award, or any other matter concerning the conduct of the arbitration proceeding, except that testimony given at an arbitration hearing may be used for the purposes otherwise permitted by the Florida Rules of Evidence or the Florida Rules of Civil Procedure.
§766.108. Within 120 days after the suit is filed, unless such period is extended by mutual agreement of all parties, all parties shall attend in-person mandatory mediation in accordance with §44.102 if binding arbitration under §766.207 has not been agreed to by the parties. In any action for damages based on personal injury or wrongful death arising out of medical malpractice, whether in tort or contract, the court shall require a settlement conference at least three weeks before the date set for trial.
§766.207 et seq. The parties may elect to have damages determined by an arbitration panel. Arbitration pursuant to this section shall preclude recourse to any other remedy by the claimant against any participating defendant, and shall be undertaken with the understanding that damages shall be awarded as provided by general law, including the Wrongful Death Act, subject to the following limitations: (a) Net economic damages shall be awardable, including, but not limited to, past and future medical expenses and 80 percent of wage loss and loss of earning capacity, offset by any collateral source payments. (b) Noneconomic damages shall be limited to a maximum of $250,000 per incident, and shall be calculated on a percentage basis with respect to capacity to enjoy life, so that a finding that the claimant's injuries resulted in a 50 percent reduction in his or her capacity to enjoy life would warrant an award of not more than $125,000 noneconomic damages. (c) Damages for future economic losses shall be awarded to be paid by periodic payments pursuant to §766.202(9) and shall be offset by future collateral source payments. (d) Punitive damages shall not be awarded.
§766.208. Within 20 days after the determination of damages by the arbitration panel in the first arbitration proceeding, those defendants who have agreed to voluntary binding arbitration shall submit any dispute among them regarding the apportionment of financial responsibility to a separate binding arbitration proceeding.
Affidavit or Certificate of Merit §766.104. The complaint or initial pleading shall contain a certificate of counsel that such reasonable investigation gave rise to a good faith belief that grounds exist for an action against each named defendant. For purposes of this section, good faith may be shown to exist if the claimant or his or her counsel has received a written opinion, which shall not be subject to discovery by an opposing party, of an expert as defined in § 766.102 that there appears to be evidence of medical negligence.
§766.203. Corroboration of reasonable grounds to initiate medical negligence litigation shall be provided by the claimant's submission of a verified written medical expert opinion from a medical expert as defined in §766.202(6), at the time the notice of intent to initiate litigation is mailed, which statement shall corroborate reasonable grounds to support the claim of medical negligence. Corroboration of lack of reasonable grounds for medical negligence litigation shall be provided with any response rejecting the claim by the defendant's submission of a verified written medical expert opinion from a medical expert as defined in § 766.202(6), at the time the response rejecting the claim is mailed, which statement shall corroborate reasonable grounds for lack of negligent injury sufficient to support the response denying negligent injury.
Expert Witness Standards
§766.102. A person may not give expert testimony concerning the prevailing professional standard of care unless that person is a licensed health care provider and meets the following criteria: (a) If the health care provider against whom or on whose behalf the testimony is offered is a specialist, the expert witness must: 1. Specialize in the same specialty as the health care provider against whom or on whose behalf the testimony is offered; or specialize in a similar specialty that includes the evaluation, diagnosis, or treatment of the medical condition that is the subject of the claim and have prior experience treating similar patients; and 2. Have devoted professional time during the three years immediately preceding the date of the occurrence that is the basis for the action to: a. The active clinical practice of, or consulting with respect to, the same or similar specialty that includes the evaluation, diagnosis, or treatment of the medical condition that is the subject of the claim and have prior experience treating similar patients; b. Instruction of students in an accredited health professional school or accredited residency or clinical research program in the same or similar specialty; or c. A clinical research program that is affiliated with an accredited health professional school or accredited residency or clinical research program in the same or similar specialty.
If the health care provider against whom or on whose behalf the testimony is offered is a general practitioner, the expert witness must have devoted professional time during the five years immediately preceding the date of the occurrence that is the basis for the action to: 1. The active clinical practice or consultation as a general practitioner; 2. The instruction of students in an accredited health professional school or accredited residency program in the general practice of medicine; or 3. A clinical research program that is affiliated with an accredited medical school or teaching hospital and that is in the general practice of medicine.
If the health care provider against whom or on whose behalf the testimony is offered is a health care provider other than a specialist or a general practitioner, the expert witness must have devoted professional time during the three years immediately preceding the date of the occurrence that is the basis for the action to: 1. The active clinical practice of, or consulting with respect to, the same or similar health profession as the health care provider against whom or on whose behalf the testimony is offered; 2. The instruction of students in an accredited health professional school or accredited residency program in the same or similar health profession in which the health care provider against whom or on whose behalf the testimony is offered; or 3. A clinical research program that is affiliated with an accredited medical school or teaching hospital and that is in the same or similar health profession as the health care provider against whom or on whose behalf the testimony is offered.
Medical or Peer Review Panels §395.0193. Peer review
§766.101. Immunity for medical review committee
Georgia
Damage Award Limit or Cap No limitations. Limits on noneconomic damages (§51-13-1) declared unconstitutional by state Supreme Court (see Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt et al., (Ga. March 22, 2010).
Joint and Several Liability Several liability. §51-12-31. Except as provided in Code §51-12-33, where an action is brought jointly against several persons, the plaintiff may recover damages for an injury caused by any of the defendants against only the defendant or defendants liable for the injury. In its verdict, the jury may specify the particular damages to be recovered of each defendant. Judgment in such a case must be entered severally.
§51-12-33. Multiple defendants liable for apportioned damages according to percentage of fault of each person. Damages reduced by court in proportion to percentage of fault if plaintiff is found partially responsible for injury. Plaintiff not entitled to receive any damages if found 50percent or more responsible for injury.
Limits on Attorney Fees No limitations.
Periodic Payments Statute (§51-13-1) declared unconstitutional by state Supreme Court (see Atlanta Oculoplastic Surgery P.C. v. Nestlehutt, 691 S.E.2d 218 (Ga. 2010)).
Patient Compensation or Injury Fund None provided.
Pre-Trial Alternative Dispute Resolution and Screening Panels §9-9-61 et seq. In addition to any other legal procedure for the resolution of medical malpractice claims, the parties to a medical malpractice claim may submit the claim for arbitration in accordance with this article.
§9-9-78. The arbitrators shall make a written finding on each of the matters in controversy contained in the submission. If the arbitrators shall fail to agree on any finding, then any two of them may make the finding, which shall have the same force and effect as if made by all.
§9-9-79. After the arbitrators have made their findings, the referee shall furnish each of the parties with a copy thereof. The original shall be entered on the minutes of the court authorizing the arbitration; it shall have all the force and effect of a judgment or decree of the court and may be enforced in the same manner at any time after the adjournment of the court.
Affidavit or Certificate of Merit §9-11-9.1. In any action for damages alleging professional malpractice against medical professionals or health care facilities, the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.
Expert Witness Standards §24-9-67.1. In medical malpractice actions, the opinions of an expert, who is otherwise qualified as to the acceptable standard of conduct of the professional whose conduct is at issue, shall be admissible only if, at the time the act or omission is alleged to have occurred, such expert: (2) In the case of a medical malpractice action, had actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given as the result of having been regularly engaged in: (A) The active practice of such area of specialty of his or her profession for at least three of the last five years, with sufficient frequency to establish an appropriate level of knowledge, as determined by the judge, in performing the procedure, diagnosing the condition, or rendering the treatment which is alleged to have been performed or rendered negligently by the defendant whose conduct is at issue; or (B) The teaching of his or her profession for at least three of the last five years as an employed member of the faculty of an educational institution accredited in the teaching of such profession, with sufficient frequency to establish an appropriate level of knowledge, as determined by the judge, in teaching others how to perform the procedure, diagnose the condition, or render the treatment which is alleged to have been performed or rendered negligently by the defendant whose conduct is at issue; and (C) Except as provided in subparagraph (D) of this paragraph: (i) Is a member of the same profession; (ii) Is a medical doctor testifying as to the standard of care of a defendant who is a doctor of osteopathy; or (iii) Is a doctor of osteopathy testifying as to the standard of care of a defendant who is a medical doctor; and (D) Notwithstanding any other provision of this Code section, an expert who is a physician and, as a result of having, during at least three of the last five years immediately preceding the time the act or omission is alleged to have occurred, supervised, taught, or instructed nurses, nurse practitioners, certified registered nurse anesthetists, nurse midwives, physician assistants, physical therapists, occupational therapists, or medical support staff, has knowledge of the standard of care of that health care provider under the circumstances at issue shall be competent to testify as to the standard of that health care provider. However, a nurse, nurse practitioner, certified registered nurse anesthetist, nurse midwife, physician assistant, physical therapist, occupational therapist, or medical support staff shall not be competent to testify as to the standard of care of a physician.
Medical or Peer Review Panels §31-7-130 et seq. Peer review groups
§31-7-140 et seq. Medical review committees
Guam
Damage Award Limit or Cap 7 §12116. Any exemplary damages awarded to a client in a tort suit based on health care or professional services shall be placed in a special fund that may be expended at the discretion of the administrator, Guam Memorial Hospital, for the improvement of medical services within the territory of Guam.
5 §6301. (b) The government of Guam, in the case of line agencies, shall be liable in tort for not more than $100,000 in an action for wrongful death, nor for more than $300,000 in any other tort action.
(d) (1) In the case of the Guam Memorial Hospital Authority, it shall also be liable in tort, not to exceed the limits stated in subsection (b), above, for damages arising from negligent acts of Government Health Professionals performed within facilities operated by said Authority as agents of the government of Guam at the request of the Government or performed at the private medical facility of a private physician acting as a Government Health Professional for follow up care to a house patient limited to specific treatment for the condition(s) medically diagnosed by the physician or the Emergency Room physician while treating House Patients at the Guam Memorial Hospital.
Joint and Several Liability Joint and several liability
Limits on Attorney Fees 7 §26601. Sliding scale, not to exceed (1) 50 percent on the first $1,000 recovered; (2) 40 percent on the next $2,000 recovered; (3) 33-1/3 percent on the next $47,000 recovered; (4) 20 percent on the next $50,000 recovered; (5) 10 percent on any amount recovered over $100,000; and (6) Where the amount recovered is for the benefit of an infant or incompetent and the action is settled without trial the foregoing limits shall apply, except that the fee on any amount recovered up to $50,000 shall not exceed 25 percent.
Periodic Payments No applicable statute.
Patient Compensation or Injury Fund None provided.
Pre-Trial Alternative Dispute Resolution and Screening Panels 10 §10100 et seq. Any claim for medical malpractice must be submitted to arbitration.
10 §10133. A majority of the panel of arbitrators may grant monetary damages only deemed equitable and just. The award in the arbitration proceeding shall be in writing and shall be signed by the arbitrators or a majority of the panel of arbitrators. An award cannot be rendered unless it is signed by a majority of the arbitrators. The award shall include a determination of all the questions submitted to arbitration by each party, the resolution of which is necessary to determine the dispute, controversy, or issue.
Affidavit or Certificate of Merit No statute provided specific to medical liability/malpractice cases.
Expert Witness Standards 10 §10119. Each party shall provide the name of the expert, the address of the expert, and shall state the subject matter on which the expert is expected to testify, and state the substance of the facts and opinions to which the expert is to testify and a summary of the grounds for each opinion.
Medical or Peer Review Panels Rules of Evidence §417. Health care provider peer review committee
Hawaii
Damage Award Limit or Cap §663-8.7. Noneconomic damages recoverable for pain and suffering shall be limited to a maximum award of $375,000.
Joint and Several Liability Modified joint and several liability. §663-10.9. Joint and several liability for economic damages. Several liability for noneconomic damages: When negligence is less than 25 percent, noneconomic damages awarded in proportion according to degree of fault.
Limits on Attorney Fees §607-15.5. Attorneys' fees for both the plaintiff and the defendant shall be limited to a reasonable amount as approved by the court.
Periodic Payments No applicable statute.
Patient Compensation or Injury Fund None provided.
Pre-Trial Alternative Dispute Resolution and Screening Panels §671-11 et seq. A medical claim conciliation panel shall be formed for each claim filed pursuant to §671-12, which shall review and render findings and advisory opinions on the issues of liability and damages in medical tort claims against health care providers.
§671-15. After a finding of liability, the medical claim conciliation panel shall decide the amount of damages, if any, which should be awarded in the case. The decision as to damages shall include in simple, concise terms a division as to which portion of the damages recommended are attributable to economic losses and which to noneconomic losses; provided the panel may not recommend punitive damages. The decisions shall be signed by all members of the medical claim conciliation panel; provided that any member of the panel may file a written concurring or dissenting opinion.
§671-16. No statement made in the course of the hearing of the medical claim conciliation panel shall be admissible in evidence either as an admission, to impeach the credibility of a witness, or for any other purpose in any trial of the action; provided that such statements may be admissible for the purpose of §671-19, hereof. No decision, conclusion, finding, or recommendation of the medical claim conciliation panel on the issue of liability or on the issue of damages shall be admitted into evidence in any subsequent trial, nor shall any party to the medical claim conciliation panel hearing, or the counsel or other representative of such party, refer or comment thereon in an opening statement, an argument, or at any other time, to the court or jury; provided that such decision, conclusion, finding, or recommendation may be admissible for the purpose of §671-19, hereof.
§671-16.5. Any person or the person's representative claiming that a medical tort has been committed or any health care provider against whom a claim has been made may elect to bypass the court annexed arbitration program under §601-20 after the claim has been submitted to the medical claim conciliation panel and the panel has rendered a decision or has not reached a decision within the tolling period of the statute of limitations under §671-18.
§671-16.6. Any claim initially filed with the medical claim conciliation panel may be subsequently submitted to an alternative dispute resolution provider upon the written agreement of all of the parties to the claim and with the written approval of the director. No statement made in the course of the approved alternative dispute resolution process shall be admissible in evidence as an admission, to impeach the credibility of a witness, or for any other purpose in any trial of the action. No decision, conclusion, finding, or recommendation of the approved alternative dispute resolution provider on the issue of liability or on the issue of damages shall be admitted into evidence in any subsequent trial, nor shall any party to the approved alternative dispute resolution hearing, their counsel, or other representative of such party, refer or comment thereon in an opening statement, in an argument, or at any time, to the court or jury.
Affidavit or Certificate of Merit No statute provided specific to medical liability/malpractice cases.
Expert Witness Standards No statute provided specific to medical liability/malpractice cases.
Medical or Peer Review Panels §432E-9. Utilization review
§624-25.5. Proceedings and records of peer review committees and quality assurance committees.
§663-1.7. Liability of professional society; peer review committee; ethics committee; hospital or clinic quality assurance committee
Idaho
Damage Award Limit or Cap §6-1603. $250,000 limit on noneconomic damages, adjusted annually according to state's average annual wage.
§6-1604. Punitive damages limited to the greater of $250,000 or amount three times of compensatory damages.
Joint and Several Liability Modified several liability. §6-803. Defendants are proportionally liable according to percentage of fault for damages awarded, except in cases where the defendants were acting in concert or when a person was acting as an agent or servant of another party.
Limits on Attorney Fees No limitations.
Periodic Payments §6-1601 et seq. If the amount of future damages exceeds $100,000, the court may, in the exercise of its sound discretion, and at the request of either party, enter a judgment which provides for the periodic payment of that portion of the verdict. All judgments payable by periodic payments, as provided in this section, shall constitute a property right of the judgment creditor entitled to receive the payments, shall survive the death, disability or incapacity of the judgment creditor, and shall be inheritable, devisable, assignable and otherwise subject to disposition by the judgment creditor as any other form of intangible personal property; provided that nothing contained herein is intended to amend, modify or in any way alter any federal, state or local laws pertaining to taxes which may or may not be assessed against all or any portion of the judgment.
Patient Compensation or Injury Fund None provided.
Pre-Trial Alternative Dispute Resolution and Screening Panels §6-1001 et seq. The Idaho state board of medicine, in alleged malpractice cases involving claims for damages against physicians and surgeons practicing in the state of Idaho or against licensed acute care general hospitals operating in the state of Idaho, is directed to cooperate in providing a hearing panel in the nature of a special civil grand jury and procedure for prelitigation consideration of personal injury and wrongful death claims for damages arising out of the provision of or alleged failure to provide hospital or medical care in the state of Idaho, which proceedings shall be informal and nonbinding, but nonetheless compulsory as a condition precedent to litigation.
Affidavit or Certificate of Merit No statute provided specific to medical liability/malpractice cases.
Expert Witness Standards §6-1012. In any case, claim or action for damages due to injury to or death of any person, brought against any physician and surgeon or other provider of health care, or any person vicariously liable for the negligence of them or any of them, on account of the provision of or failure to provide health care or on account of any matter incidental or related thereto, such claimant must, as an essential part of the case in chief, affirmatively prove by direct expert testimony and by a preponderance of all the competent evidence, that such defendant then and there negligently failed to meet the applicable standard of health care practice of the community in which such care allegedly was or should have been provided, as such standard existed at the time and place of the alleged negligence of such physician and surgeon, hospital or other such health care provider and as such standard then and there existed with respect to the class of health care provider that such defendant then and there belonged to and in which capacity he, she or it was functioning.
§6-1013. The applicable standard of practice and such a defendant’s failure to meet said standard must be established in such cases by such a plaintiff by testimony of one (1) or more knowledgeable, competent expert witnesses, and such expert testimony may only be admitted in evidence if the foundation therefor is first laid, establishing that such expert witness possesses professional knowledge and expertise coupled with actual knowledge of the applicable said community standard to which his or her expert opinion testimony is addressed; provided, this section shall not be construed to prohibit or otherwise preclude a competent expert witness who resides elsewhere from adequately familiarizing himself with the standards and practices of (a particular) such area and thereafter giving opinion testimony in such a trial.
Medical or Peer Review Panels §39-1392 et seq. Peer review
Illinois
Damage Award Limit or Cap 735 §5/2-1115. Punitive damages not recoverable in medical malpractice cases.
No limitations. Limits on noneconomic damages (§6-5-547) declared unconstitutional by state Supreme Court (see LeBron v. Gottlieb Memorial Hospital, (Ill. February 4, 2010)).
Joint and Several Liability Joint and several liability. §735 5/2-1117.
Limits on Attorney Fees 735 §5/2-1114. Sliding scale, not to exceed 33-1/3 percent of first $150,000; 25 percent of next $850,000; 20 percent of any amount recovered over $1 million of the sum recovered.
Periodic Payments 735 §5/2-1701 et seq. A party to the action must elect not less than 60 days before commencement of a trial involving issues of future damages unless leave of court is obtained. For all future damages which the trier of fact has determined will accrue for the remainder of the plaintiff's life, payment for those damages shall continue until the later of the plaintiff's death or the time when the remaining life expectancy is reached. For all future damages which the trier of fact has determined will accrue for a definite number of years, payment for those damages shall continue for that number of years irrespective of the plaintiff's death.
Patient Compensation or Injury Fund None provided.
Pre-Trial Alternative Dispute Resolution and Screening Panels 710 §15/1 et seq. The Health Care Arbitration Act.
710 §15/8. The agreement is not a condition to the rendering of health care services by any party and the agreement has been executed by the recipient of health care services at the inception of or during the term of provision of services for a specific cause by either a health care provider or a hospital.
Affidavit or Certificate of Merit 735 §5/2-622 declared unconstitutional by state court (see Lebron v. Gottlieb Memorial Hospital, (Ill. Cir. November 13, 2007).
Expert Witness Standards 735 §5/8-2501. In any case in which the standard of care applicable to a medical professional is at issue, the court shall apply the following standards to determine if a witness qualifies as an expert witness and can testify on the issue of the appropriate standard of care. (a) Whether the witness is board certified or board eligible, or has completed a residency, in the same or substantially similar medical specialties as the defendant and is otherwise qualified by significant experience with the standard of care, methods, procedures, and treatments relevant to the allegations against the defendant; (b) Whether the witness has devoted a majority of his or her work time to the practice of medicine, teaching or University based research in relation to the medical care and type of treatment at issue which gave rise to the medical problem of which the plaintiff complains; (c) whether the witness is licensed in the same profession with the same class of license as the defendant if the defendant is an individual; and (d) whether, in the case against a nonspecialist, the witness can demonstrate a sufficient familiarity with the standard of care practiced in the state. An expert shall provide evidence of active practice, teaching, or engaging in university-based research. If retired, an expert must provide evidence of attendance and completion of continuing education courses for three years previous to giving testimony. An expert who has not actively practiced, taught, or been engaged in university-based research, or any combination thereof, during the preceding five years may not be qualified as an expert witness.
Medical or Peer Review Panels 225 §60/5. Immunity for peer review committee
735 §5/8-2101 et seq. Confidentiality of records
Indiana
Damage Award Limit or Cap §34-18-14-3. The total amount recoverable may not exceed $500,000. A health care provider is not liable for an amount in excess of $250,000 for an occurrence of malpractice.
Joint and Several Liability Joint and several liability. §34-51-2-1.
Limits on Attorney Fees §34-18-18-1. When a plaintiff is represented by an attorney in the prosecution of the plaintiff's claim, the plaintiff's attorney's fees from any award made from the patient's compensation fund may not exceed 15 percent of any recovery from the fund.
Periodic Payments §34-18-14-1 et seq. Permitted.
§34-18-15-2. Notwithstanding IC 34-18-6, the commissioner may: (1) discharge the possible liability of the patient's compensation fund to a patient through a periodic payments agreement (as defined in IC 34-18-14-2); and (2) combine money from the fund with money of the health care provider (or its insurer) to pay the cost of the periodic payments agreement with the patient (or the patient's estate). However, the amount provided by the commissioner may not exceed 80 percent of the total amount expended for the agreement.
Patient Compensation or Injury Fund §34-18-6-1 et seq. Patient’s Compensation Fund
§34-18-5-1 et seq. Surcharge to fund Patient’s Compensation Fund
§34-18-15-1 et seq. Payment from the Patient’s Compensation Fund
Pre-Trial Alternative Dispute Resolution and Screening Panels §34-18-8-4 et seq. Except as provided, an action against a health care provider may not be commenced in a court in Indiana before: (1) the claimant's proposed complaint has been presented to a medical review panel established under IC 34-18-10; and (2) an opinion is given by the panel.
§34-18-8-6. A patient may commence an action against a health care provider for malpractice without submitting a proposed complaint to a medical review panel if the patient's pleadings include a declaration that the patient seeks damages from the health care provider in an amount not greater than $15,000.
§34-18-10-1 et seq. This chapter provides for the establishment of medical review panels to review proposed malpractice complaints against health care providers covered by this article.
§34-18-10-22. After reviewing all evidence and after any examination of the panel by counsel representing either party, the panel shall, within 30 days, give one or more of the following expert opinions, which must be in writing and signed by the panelists: (1) The evidence supports the conclusion that the defendant or defendants failed to comply with the appropriate standard of care as charged in the complaint. (2) The evidence does not support the conclusion that the defendant or defendants failed to meet the applicable standard of care as charged in the complaint. (3) There is a material issue of fact, not requiring expert opinion, bearing on liability for consideration by the court or jury. (4) The conduct complained of was or was not a factor of the resultant damages. If so, whether the plaintiff suffered: (A) any disability and the extent and duration of the disability; and (B) any permanent impairment and the percentage of the impairment.
§34-18-10-23. A report of the expert opinion reached by the medical review panel is admissible as evidence in any action subsequently brought by the claimant in a court of law. However, the expert opinion is not conclusive, and either party, at the party's cost, has the right to call any member of the medical review panel as a witness. If called, a witness shall appear and testify.
Affidavit or Certificate of Merit No statute provided specific to medical liability/malpractice cases.
Expert Witness Standards No statute provided specific to medical liability/malpractice cases.
Medical or Peer Review Panels §34-30-15-1 et seq. Privileged communications of health care provider peer review committees
Iowa
Damage Award Limit or Cap §147.136. In an action for damages the damages awarded shall not include actual economic losses incurred or to be incurred in the future by the claimant by reason of the personal injury, including but not limited to, the cost of reasonable and necessary medical care, rehabilitation services, and custodial care, and the loss of services and loss of earned income, to the extent that those losses are replaced or are indemnified by insurance, or by governmental, employment, or service benefit programs or from any other source except the assets of the claimant or of the members of the claimant's immediate family.
Joint and Several Liability Modified joint and several liability. §668.4. The rule of joint and several liability shall not apply to defendants who are found to bear less than 50 percent of the total fault assigned to all parties. However, a defendant found to bear 50 percent or more of fault shall only be jointly and severally liable for economic damages and not for any noneconomic damage awards.
Limits on Attorney Fees §147.138. The court shall determine the reasonableness of any contingent fee arrangement between the plaintiff and the plaintiff's attorney.
Periodic Payments §668.3. Any party may petition the court for a determination of the appropriate payment method of such judgment or award. If so petitioned the court may order that the payment method for all or part of the judgment or award be by structured, periodic, or other nonlump-sum payments. However, the court shall not order a structured, periodic, or other nonlump-sum payment method if it finds that any of the following are true: a. The payment method would be inequitable. b. The payment method provides insufficient guarantees of future collectibility of the judgment or award. c. Payments made under the payment method could be subject to other claims, past or future, against the defendant or the defendant’s insurer.
Patient Compensation or Injury Fund None provided.
Pre-Trial Alternative Dispute Resolution and Screening Panels No statute provided specific to medical liability/malpractice cases.
Affidavit or Certificate of Merit No statute provided specific to medical liability/malpractice cases.
Expert Witness Standards §147.139. If the standard of care given by a physician and surgeon or an osteopathic physician and surgeon licensed pursuant to chapter 148, or a dentist licensed pursuant to chapter 153, is at issue, the court shall only allow a person to qualify as an expert witness and to testify on the issue of the appropriate standard of care if the person's medical or dental qualifications relate directly to the medical problem or problems at issue and the type of treatment administered in the case.
Medical or Peer Review Panels §147.135. Confidentiality and immunity for peer review committees
Kansas
Damage Award Limit or Cap §60-19a02. $250,000 limit on noneconomic damages for personal injury recoverable by each party from all defendants.
§16-1903. Wrongful death damages, other than pecuniary loss sustained by an heir at law, cannot exceed in the aggregate the sum of $250,000 and costs.
§60-3702. No award of exemplary or punitive shall exceed the lesser of: (1) The annual gross income earned by the defendant, as determined by the court based upon the defendant's highest gross annual income earned for any one of the five years immediately before the act for which such damages are awarded, unless the court determines such amount is clearly inadequate to penalize the defendant, then the court may award up to 50 percent of the net worth of the defendant, as determined by the court; or (2) $5 million. If the court finds that the profitability of the defendant's misconduct exceeds or is expected to exceed the limitation above, the limitation on the amount of exemplary or punitive damages which the court may award shall be an amount equal to 1 1/2 times the amount of profit which the defendant gained or is expected to gain as a result of the defendant's misconduct.
Joint and Several Liability Several liability. §60-258a. Defendants are proportionally liable according to percentage of fault.
Limits on Attorney Fees §7-121b. Compensation for reasonable attorney fees to be paid by each litigant in the action shall be approved by the judge after an evidentiary hearing and prior to final disposition of the case by the district court. Compensation for reasonable attorney fees for services performed in an appeal of a judgment in any such action to the court of appeals shall be approved after an evidentiary hearing by the chief judge or by the presiding judge of the panel hearing the case. Compensation for reasonable attorney fees for services performed in an appeal of a judgment in any such action to the supreme court shall be approved after an evidentiary hearing by the departmental justice for the department in which the appeal originated.
Periodic Payments §60-2609. The court may include in such judgment a requirement that the damages awarded be paid in whole or in part by installment or periodic payments, and any installment or periodic payment upon becoming due and payable under the terms of any such judgment shall constitute a separate judgment upon which execution may issue.
Patient Compensation or Injury Fund §40-3403. Health Care Stabilization Fund
Pre-Trial Alternative Dispute Resolution and Screening Panels §60-3413. In any medical malpractice liability action, as defined by K.S.A. 60-3401 and amendments thereto, the court shall require a settlement conference to be held not less than 30 days before trial. (b) The settlement conference shall be conducted by the trial judge or the trial judge's designee. The attorneys who will conduct the trial, all parties and all persons with authority to settle the claim shall attend the settlement conference unless excused by the court for good cause. (c) Offers, admissions and statements made in conjunction with or during the settlement conference shall not be admissible at trial or in any subsequent action.
§65-4901 et seq. Upon a party’s or the court’s request, a judge shall convene a medical malpractice screening panel.
§65-4903. The screening panel shall determine whether there was a departure from the standard practice of the health care provider specialty involved and whether a causal relationship existed between the damages suffered by the claimant and any such departure.
§65-4904. The written report of the screening panel shall be admissible in any subsequent legal proceeding, and either party may subpoena any and all members of the panel as witnesses for examination relating to the issues at trial, provided the panel member or members otherwise meet the qualifications of K.S.A. 60-3412, and amendments thereto.
Affidavit or Certificate of Merit No statute provided specific to medical liability/malpractice cases.
Expert Witness Standards §60-3412. In any medical malpractice liability action, as defined in K.S.A. 60-3401 and amendments thereto, in which the standard of care given by a practitioner of the healing arts is at issue, no person shall qualify as an expert witness on such issue unless at least 50 percent of such person's professional time within the two-year period preceding the incident giving rise to the action is devoted to actual clinical practice in the same profession in which the defendant is licensed.
Medical or Peer Review Panels §65-4915. Authority and privileges of peer review committee
Kentucky
Damage Award Limit or Cap No limitations. Kentucky Constitution §54: The General Assembly shall have no power to limit the amount to be recovered for injuries resulting in death, or for injuries to person or property.
Joint and Several Liability Several liability. §411.182. Defendants are proportionally liable according to percentage of fault.
Limits on Attorney Fees No limitations.
Periodic Payments No applicable statute.
Patient Compensation or Injury Fund None provided.
Pre-Trial Alternative Dispute Resolution and Screening Panels No statute provided specific to medical liability/malpractice cases.
Affidavit or Certificate of Merit No statute provided specific to medical liability/malpractice cases.
Expert Witness Standards No statute provided specific to medical liability/malpractice cases.
Medical or Peer Review Panels §311.377. Confidentiality and immunity for professional review bodies
Louisiana
Damage Award Limit or Cap RS §40:1299.42. $500,000 limit for total recovery. Health care provider liability limited to $100,000. Any award in excess of all liable providers paid from Patient’s Compensation Fund.
Joint and Several Liability Several liability. Civil Code Art. 2324. Defendants are liable only for percentage of fault unless they conspire to commit an intentional or willful act.
Limits on Attorney Fees No limitations.
Periodic Payments No applicable statute.
Patient Compensation or Injury Fund RS §40:1299.44 et seq. Patient Compensation Fund. Physicians levied surcharge directly into fund for purpose of paying malpractice claims.
Pre-Trial Alternative Dispute Resolution and Screening Panels RS §9:4230 et seq. A provision in any medical contract between a patient and medical institution, under which the parties agree to settle by arbitration a controversy thereafter arising out of the contract, or out of the refusal to perform the whole or any part thereof, or a provision to submit to arbitration any controversy existing between them at the time of the agreement to submit, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.
RS §40:1299.39.1. All malpractice claims against the state, its agencies, or other persons covered by this Part shall be reviewed by a state medical review panel. No action against the state, its agencies, or a person covered by this Part, or his insurer, may be commenced in any court before the claimant's complaint has been presented to a state medical review panel established pursuant to this Section. By agreement of both parties, the use of the state medical review panel may be waived. After reviewing all evidence and after any examination of the panel by counsel representing either party, the panel shall, within thirty days, render one or more of the following expert opinions which shall be in writing and signed by the panelists, together with written reasons supporting each opinion, which shall constitute part of the report: (1) The evidence does not support the conclusion that the defendant or defendants failed to comply with the appropriate standard of care as charged in the complaint. (2) The evidence does support the conclusion that the defendant or defendants failed to meet the applicable standard of care as charged in the complaint. If such opinion is rendered, then an opinion on whether the conduct complained of was or was not, in fact, a medical cause of the resultant damages shall also be rendered. If an opinion is rendered that such conduct was, in fact, a medical cause of the resultant damages, then an opinion shall be rendered on whether the plaintiff suffered: (a) Any disability and the extent and duration of the disability. (b) Any permanent impairment and the percentage of the impairment. (3) There is a material issue of fact, not requiring medical or health care expert opinion, bearing on liability for consideration by the court. Any report of the expert opinion reached by the state medical review panel shall be admissible as evidence in any action subsequently brought by the claimant in a court of law, but such expert opinion shall not be conclusive and either party may call, at his cost, any member of the state medical review panel as a witness. If called, the witness shall appear and testify.
RS §40:1299.47 et seq. All malpractice claims against health care providers covered by this Part, other than claims validly agreed for submission to a lawfully binding arbitration procedure, shall be reviewed by a medical review panel established as hereinafter provided for in this Section. No action against a health care provider covered by this Part, or his insurer, may be commenced in any court before the claimant's proposed complaint has been presented to a medical review panel established pursuant to this Section. By agreement of all parties, the use of the medical review panel may be waived. After reviewing all evidence and after any examination of the panel by counsel representing either party, the panel shall, within thirty days, render one or more of the following expert opinions, which shall be in writing and signed by the panelists, together with written reasons for their conclusions: (1) The evidence supports the conclusion that the defendant or defendants failed to comply with the appropriate standard of care as charged in the complaint. (2) The evidence does not support the conclusion that the defendant or defendants failed to meet the applicable standard of care as charged in the complaint. (3) That there is a material issue of fact, not requiring expert opinion, bearing on liability for consideration by the court. (4) When Paragraph (1) of this Subsection is answered in the affirmative, that the conduct complained of was or was not a factor of the resultant damages. If such conduct was a factor, whether the plaintiff suffered: (a) any disability and the extent and duration of the disability, and (b) any permanent impairment and the percentage of the impairment. Any report of the expert opinion reached by the medical review panel shall be admissible as evidence in any action subsequently brought by the claimant in a court of law, but such expert opinion shall not be conclusive and either party shall have the right to call, at his cost, any member of the medical review panel as a witness. If called, the witness shall be required to appear and testify.
RS §40:1299.57. The persons authorized and empowered in R.S. 40:1299.53(a) and (b) to consent to surgical or medical treatment or procedures for others as provided therein are also authorized and empowered, for and on behalf of such others, and without court approval, to enter into binding medical arbitration agreements.
Affidavit or Certificate of Merit No statute provided specific to medical liability/malpractice cases.
Expert Witness Standards RS §9:2794. (1) In a medical malpractice action against a physician, licensed to practice medicine by the Louisiana State Board of Medical Examiners under R.S. 37:1261 et seq., for injury to or death of a patient, a person may qualify as an expert witness on the issue of whether the physician departed from accepted standards of medical care only if the person is a physician who meets all of the following criteria: (a) He is practicing medicine at the time such testimony is given or was practicing medicine at the time the claim arose. (b) He has knowledge of accepted standards of medical care for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim. (c) He is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of care. (d) He is licensed to practice medicine by the Louisiana State Board of Medical Examiners under R.S. 37:1261 et seq., is licensed to practice medicine by any other jurisdiction in the United States, or is a graduate of a medical school accredited by the American Medical Association's Liaison Committee on Medical Education or the American Osteopathic Association. (2) For the purposes of this Subsection, "practicing medicine" or "medical practice" includes but is not limited to training residents or students at an accredited school of medicine or osteopathy or serving as a consulting physician to other physicians who provide direct patient care, upon the request of such other physicians. (3) In determining whether a witness is qualified on the basis of training or experience, the court shall consider whether, at the time the claim arose or at the time the testimony is given, the witness is board certified or has other substantial training or experience in an area of medical practice relevant to the claim and is actively practicing in that area. (4) The court shall apply the criteria specified in Paragraphs (1), (2), and (3) of this Subsection in determining whether a person is qualified to offer expert testimony on the issue of whether the physician departed from accepted standards of medical care.
Medical or Peer Review Panels RS §13:3715.3. Confidentiality of peer review records
RS §40:2205. Utilization reviews
RS §44:7. Confidentiality for public hospital committees
Maine
Damage Award Limit or Cap No applicable statute.
Joint and Several Liability Joint and several liability. 14 §156. In a case involving multiparty defendants, each defendant is jointly and severally liable to the plaintiff for the full amount of the plaintiff's damages. However, any defendant has the right through the use of special interrogatories to request of the jury the percentage of fault contributed by each defendant.
Limits on Attorney Fees 24 §2961. Sliding scale, not to exceed 33-1/3 percent of first $100,000; 25 percent of next $100,000; and 20 percent of damages exceeding $200,000. For purposes of determining any lump-sum contingent fee, any future damages recoverable by the plaintiff in periodic installments shall be reduced to lump-sum value. If the plaintiff prevails in the action for professional negligence, the plaintiff's attorney may petition the court to review the reasonableness of the fees permitted above.
Periodic Payments 24 §2951. If the award for future damages, including, equals or exceeds $250,000, the court in which the action is brought shall, at the request of either party, enter a judgment ordering that money damages or its equivalent for future damages of the judgment creditor, exclusive of litigation expenses, be paid in whole or in part by periodic payments rather than by a lump-sum payment. Money damages awarded for loss of future earnings and loss of services shall not be reduced or payments terminated by reason of the death of the judgment creditor, but shall be paid to the judgment creditor's estate. In those cases, the court which rendered the original judgment may, upon petition of any party in interest, modify the judgment to award and apportion the unpaid future damages, exclusive of unpaid damages for future medical treatment, in accordance with this subchapter.
Patient Compensation or Injury Fund None provided.
Pre-Trial Alternative Dispute Resolution and Screening Panels 24 §2851 et seq. The purpose of mandatory prelitigation screening and mediation panels is: (A) To identify claims of professional negligence which merit compensation and to encourage early resolution of those claims prior to commencement of a lawsuit; and (B) To identify claims of professional negligence and to encourage early withdrawal or dismissal of non-meritorious claims.
24 §2853. The pretrial screening may be bypassed if all parties agree upon a resolution of the claim by lawsuit. All parties to a claim may, by written agreement, submit a claim to the binding determination of the panel, either prior to or after the commencement of a lawsuit. Both parties may agree to bypass the panel and commence a lawsuit for any reason, or may request that certain preliminary legal affirmative defenses or issues be litigated prior to submission of the case to the panel. The panel has no jurisdiction to hear or decide, absent the agreement of the parties, dispositive legal affirmative defenses, and comparative negligence. The panel chair may require the parties to litigate, by motion, dispositive legal affirmative defenses in the Superior Court prior to submission of the case to the panel. Any such defense, as well as any motion relating to discovery that the panel chair has chosen not to rule on may be presented, by motion, in Superior Court without the necessity of a complaint having first been filed.
24 §2855. 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.
24 §2857. The findings and other writings of the panel and any evidence and statements made by a party or a party's representative during a panel hearing are not admissible and may not otherwise be submitted or used for any purpose in a subsequent court action and may not be publicly disclosed except as provided.
Affidavit or Certificate of Merit No statute provided specific to medical liability/malpractice cases.
Expert Witness Standards No statute provided specific to medical liability/malpractice cases.
Medical or Peer Review Panels 24 §2501 et seq. Professional competence reports
32 §3296. Confidentiality of medical staff review committees
Maryland
Damage Award Limit or Cap Courts & Judicial Proceedings Code §3-2A-09(A). Noneconomic damages for a cause of action arising between January 1, 2005, and December 31, 2008, inclusive, may not exceed $650,000. The limitation on noneconomic damages shall increase by $15,000 on January 1 of each year beginning January 1, 2009. The increased amount shall apply to causes of action arising between January 1 and December 31 of that year, inclusive. In a wrongful death action, where there are two or more claimants or beneficiaries, the noneconomic damages for all actions may not exceed 125 percent of the above limitation.
Joint and Several Liability Joint and several liability.
Limits on Attorney Fees Courts & Judicial Proceedings §3-2A-07. If a legal fee is in dispute, an attorney may not charge or collect compensation for services rendered in connection with an arbitration claim unless it is approved by the arbitration panel, or by the court in the event an action to nullify a panel determination has been filed therein.
Periodic Payments Courts & Judicial Proceedings §11-109. The court or the health claims arbitration panel may order that all or part of the future economic damages portion of the award be paid in the form of annuities or other appropriate financial instruments, or that it be paid in periodic or other payments consistent with the needs of the plaintiff, funded in full by the defendant or the defendant's insurer and equal when paid to the amount of the future economic damages award. If the plaintiff under this section dies before the final periodic payment of an award is made, the unpaid balance of the award for future loss of earnings shall revert to the estate of the plaintiff and the unpaid balance of the award for future medical expenses shall revert to the defendant or to the defendant's insurer if the insurer provided the funds for the future damages award.
Patient Compensation or Injury Fund None provided.
Pre-Trial Alternative Dispute Resolution and Screening Panels Courts & Judicial Proceedings §3-2A-01 et seq. Arbitration of claims is generally required.
Courts & Judicial Proceedings §3-2A-06. At any time before the hearing of a claim with the Health Care Alternative Dispute Resolution Office, the parties may agree mutually to waive arbitration of the claim, and the provisions of this section then shall govern all further proceedings on the claim.
Courts & Judicial Proceedings §3-2A-06B. Waiver of arbitration after filing certificate of qualified expert.
Courts & Judicial Proceedings §3-2A-06C. The court may order the parties to engage in alternative dispute resolution.
Affidavit or Certificate of Merit Courts & Judicial Proceedings §3-2A-04. A claimant or plaintiff must file a certificate of a qualified expert with the director attesting to departure from standards of care, and that the departure from standards of care is the proximate cause of the alleged injury. A defendant must file a certificate of a qualified expert attesting to compliance with standards of care, or that the departure from standards of care is not the proximate cause of the alleged injury.
Courts & Judicial Proceedings §3-2A-06D. Each party must file a supplemental certificate of qualified expert.
Expert Witness Standards Courts & Judicial Proceedings §3-2A-02. (1) In addition to any other qualifications, a health care provider who testifies in relation to a proceeding before a panel or court concerning a defendant's compliance with or departure from standards of care: A. Shall have had clinical experience, provided consultation relating to clinical practice, or taught medicine in the defendant's specialty or a related field of health care, or in the field of health care in which the defendant provided care or treatment to the plaintiff, within five years of the date of the alleged act or omission giving rise to the cause of action; and B. Except as provided in item 2 of this subparagraph, if the defendant is board certified in a specialty, shall be board certified in the same or a related specialty as the defendant. (2) Item (ii)1.B of this subparagraph does not apply if: A. The defendant was providing care or treatment to the plaintiff unrelated to the area in which the defendant is board certified; or B. The health care provider taught medicine in the defendant's specialty or a related field of health care.
Medical or Peer Review Panels Health Occupations Code §1-401 et seq. Medical review committees
Massachusetts
Damage Award Limit or Cap Ch. 231 §60H. $500,000 limit for pain and suffering, loss of companionship, embarrassment and other items of general damages unless there is a determination that there is a substantial or permanent loss or impairment of a bodily function or substantial disfigurement, or other special circumstances. Except as provided, if two or more plaintiffs have received verdicts or findings of such damages in a total amount, for all plaintiffs claiming damages from a single occurrence, transaction, act of malpractice, or injury which exceeds $500,000, the amount of such damages recoverable by each plaintiff will be reduced to a percentage of $500,000 proportionate to that plaintiff’s share of the total amount of such damages for all plaintiffs.
Joint and Several Liability Joint and several liability
Limits on Attorney Fees Ch. 231 §60I. No contingent fee agreement, shall be enforced, and no attorney shall recover a fee thereunder, as a result of services rendered in an action against a provider of health care for malpractice, negligence, error, omission, mistake, or the unauthorized rendering of professional services if, at the time of judgment, the court determines that the amount of the recovery paid or to be paid to the plaintiff, after deduction of the attorney’s reasonable expenses and disbursements for which the plaintiff is liable and the amount of the attorney’s fee, is less than the total amount of the plaintiff’s unpaid past and future medical expenses included in the recovery, unless the contingent attorney’s fee: (a) is 20 percent or less of the plaintiff’s recovery; (b) is reduced to 20 percent or less of the plaintiff’s recovery; or (c) is reduced to a level which permits the plaintiff to be paid his unpaid past and future medical expenses included in the recovery. Sliding scale, not to exceed 40 percent of first $150,000; 33-1/3 percent of next $150,000; 30 percent of next $200,000 and 25 percent of award over $500,000.
Periodic Payments No applicable statute.
Patient Compensation or Injury Fund None provided.
Pre-Trial Alternative Dispute Resolution and Screening Panels Ch. 231 §60B. Every action for malpractice, error or mistake against a health care provider shall be heard by a tribunal consisting of a single justice of the superior court, a licensed physician and a licensed attorney. The tribunal shall determine if the evidence presented if properly substantiated is sufficient to raise a legitimate question of liability appropriate for judicial inquiry or whether the plaintiff’s case is merely an unfortunate medical result. The testimony of witnesses and the decision of the tribunal shall be admissible as evidence at a trial.
Affidavit or Certificate of Merit No statute provided specific to medical liability/malpractice cases.
Expert Witness Standards No statute provided specific to medical liability/malpractice cases.
Medical or Peer Review Panels Ch. 111 §203 et seq. Medical peer review committees
Michigan
Damage Award Limit or Cap §600.1483. $280,000 limit on noneconomic damages; $500,000 limit on noneconomic damages if (a) The plaintiff is hemiplegic, paraplegic, or quadriplegic resulting in a total permanent functional loss of one or more limbs caused by one or more of the following: (i) Injury to the brain. (ii) Injury to the spinal cord. (b) The plaintiff has permanently impaired cognitive capacity rendering him or her incapable of making independent, responsible life decisions and permanently incapable of independently performing the activities of normal, daily living. (c) There has been permanent loss of or damage to a reproductive organ resulting in the inability to procreate. The limitation is adjusted annually by state treasurer according to consumer price index.
§600.6098. A judge presiding over an action alleging medical malpractice shall review each verdict to determine if the limitation on noneconomic damages provided for in §1483 applies. If the limitation applies, the court shall set aside any amount of noneconomic damages in excess of the amount specified in §1483.
Joint and Several Liability Modified joint and several liability. §600.6304. If the plaintiff is determined to be without fault, the liability of each defendant is joint and several. If the plaintiff is determined to have some percentage of fault and if, within six months of final judgment, the damages are uncollectible, then the court may reallocate the liability for the uncollected portion of the judgment based upon the other joint tortfeasors' relative degrees of fault.
Limits on Attorney Fees §600.919 The measure of the compensation of members of the bar is left to the express or implied agreement of the parties subject to the regulation of the supreme court.
Periodic Payments §600.6301 et seq. If the amount of future damages, in the judgment exceeds $250,000 gross present cash value, the court shall enter an order that the defendant or the defendant's liability insurance carrier shall satisfy that amount of the judgment, less all costs and attorney fees the plaintiff is obligated to pay, by the purchase of an annuity contract, if all of the following requirements are met: (a) The purchase price of the annuity contract shall be equal to 100 percent of the future damages subject to this section, less an amount determined by multiplying the amount of those damages by a percentage equal to the rate of prejudgment interest as calculated under §6013(5) or §6455(2) on the date the trial was commenced. (b) The annuity contract is purchased from a life insurer authorized to issue annuity contracts under §500.100 to 500.8302. Subject to §6307, if the plaintiff and the defendant agree to a plan for the structured payment of future damages within 35 days of the judgment, the court shall order that structured payments shall be made pursuant to that plan. Sections 6306(1)(c), (d), and (e), 6307, and 6309 do not apply to a plaintiff who is 60 years of age or older at the time of judgment.
Patient Compensation or Injury Fund None provided.
Pre-Trial Alternative Dispute Resolution and Screening Panels §600.2912g. If the total amount of damages claimed is $75,000 or less, including interest and costs, all claimants and all health professionals or health facilities notified under §2912b may agree in writing to submit the claim stated in the notice to binding arbitration. An arbitration award under this section is not subject to appeal.
§600.4901 et seq. Actions alleging medical malpractice shall be mediated.
§600.4919. If all or part of the evaluation of the mediation panel is rejected, the action shall proceed to trial.
Affidavit or Certificate of Merit §600.2912d. The plaintiff in an action alleging medical malpractice shall file with the complaint an affidavit of merit signed by a health professional who the plaintiff's attorney reasonably believes meets the requirements for an expert witness under §2169. The affidavit of merit shall certify that the health professional has reviewed the notice and all medical records supplied to him or her by the plaintiff's attorney concerning the allegations contained in the notice and shall contain a statement of each of the following: (a) The applicable standard of practice or care. (b) The health professional's opinion that the applicable standard of practice or care was breached by the health professional or health facility receiving the notice. (c) The actions that should have been taken or omitted by the health professional or health facility in order to have complied with the applicable standard of practice or care. (d) The manner in which the breach of the standard of practice or care was the proximate cause of the injury alleged in the notice.
§600.2912e. The defendant shall file an affidavit of meritorious defense signed by a health professional who the defendant's attorney reasonably believes meets the requirements for an expert witness under §2169. The affidavit of meritorious defense shall certify that the health professional has reviewed the complaint and all medical records supplied to him or her by the defendant's attorney concerning the allegations contained in the complaint and shall contain a statement of each of the following: (a) The factual basis for each defense to the claims made against the defendant in the complaint. (b) The standard of practice or care that the health professional or health facility named as a defendant in the complaint claims to be applicable to the action and that the health professional or health facility complied with that standard. (c) The manner in which it is claimed by the health professional or health facility named as a defendant in the complaint that there was compliance with the applicable standard of practice or care. (d) The manner in which the health professional or health facility named as a defendant in the complaint contends that the alleged injury or alleged damage to the plaintiff is not related to the care and treatment rendered.
Expert Witness Standards §600.2169. In an action alleging medical malpractice, a person shall not give expert testimony on the appropriate standard of practice or care unless the person is licensed as a health professional in this state or another state and meets the following criteria: (a) If the party against whom or on whose behalf the testimony is offered is a specialist, specializes at the time of the occurrence that is the basis for the action in the same specialty as the party against whom or on whose behalf the testimony is offered. However, if the party against whom or on whose behalf the testimony is offered is a specialist who is board certified, the expert witness must be a specialist who is board certified in that specialty. (b) Subject to subdivision (c), during the year immediately preceding the date of the occurrence that is the basis for the claim or action, devoted a majority of his or her professional time to either or both of the following: (i) The active clinical practice of the same health profession in which the party against whom or on whose behalf the testimony is offered is licensed and, if that party is a specialist, the active clinical practice of that specialty. (ii) The instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health profession in which the party against whom or on whose behalf the testimony is offered is licensed and, if that party is a specialist, an accredited health professional school or accredited residency or clinical research program in the same specialty. (c) If the party against whom or on whose behalf the testimony is offered is a general practitioner, the expert witness, during the year immediately preceding the date of the occurrence that is the basis for the claim or action, devoted a majority of his or her professional time to either or both of the following: (i) Active clinical practice as a general practitioner. (ii) Instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health profession in which the party against whom or on whose behalf the testimony is offered is licensed.
Medical or Peer Review Panels §333.21515. Confidentiality of review function bodies
Minnesota
Damage Award Limit or Cap §549.20. Punitive damages shall be allowed in civil actions only upon clear and convincing evidence that the acts of the defendant show deliberate disregard for the rights or safety of others. The court shall specifically review the punitive damages award and shall make specific findings. The appellate court, if any, also shall review the award. Nothing in this section may be construed to restrict either court's authority to limit punitive damages.
Joint and Several Liability Modified joint and several liability. §604.02. Defendants are proportionally liable according to percentage of fault for damages awarded, except when defendant is assessed greater than 50 percent of fault, two or more persons act in common scheme or plan that results in injury, or a person is proven to have committed an intentional tort. If, within one year of final judgment, the damages are uncollectible, then the court may reallocate the liability for the uncollected portion of the judgment based upon the other joint tortfeasors' relative degrees of fault.
Limits on Attorney Fees §548.251. If the fees for legal services provided to the plaintiff are based on a percentage of the amount of money awarded to the plaintiff, the percentage must be based on the amount of the award as adjusted under the collateral source rule.
Periodic Payments §549.25. If the amount of future damages exceeds $100,000, the court shall hold a hearing prior to ordering entry of judgment to allow the claimant to consider whether payment of the future damages over time as the damages are incurred is in the best interests of the claimant. If the claimant decides, after the hearing, that structured payments of future damages would be in the claimant's best interests, the court shall make available information to assist the claimant in seeking an appropriate financial instrument to provide such payments. Judgment may not be entered until the claimant has notified the court that the claimant does not wish to enter into a structured settlement.
Patient Compensation or Injury Fund None provided.
Pre-Trial Alternative Dispute Resolution and Screening Panels No statute provided specific to medical liability/malpractice cases.
Affidavit or Certificate of Merit §145.682. The plaintiff must file an affidavit of expert review that states the facts of the case have been reviewed by the plaintiff's attorney with an expert whose qualifications provide a reasonable expectation that the expert's opinions could be admissible at trial and that, in the opinion of this expert, one or more defendants deviated from the applicable standard of care and by that action caused injury to the plaintiff.
Expert Witness Standards No statute provided specific to medical liability/malpractice cases.
Medical or Peer Review Panels §145.61 et seq. Review organizations
Mississippi
Damage Award Limit or Cap §11-1-60. $500,000 limit on noneconomic damages.
§11-1-65. In any civil action where an entitlement to punitive damages shall have been established under applicable laws, no award of punitive damages shall exceed the following: (i) $20 million for a defendant with a net worth of more than $1 billion; (ii) $15 million for a defendant with a net worth of more than $750 million but not more than $1 billion; (iii) $5 million for a defendant with a net worth of more than $500 million but not more than $750 million; (iv) $3,750,000 for a defendant with a net worth of more than $100 million but not more than $500 million; v) $2,500,000 for a defendant with a net worth of more than $50 million but not more than $100 million; or (vi) Two percent of the defendant's net worth for a defendant with a net worth of $50 million or less.
Joint and Several Liability Modified several liability. §85-5-7. Defendants are proportionally liable according to percentage of fault for damages awarded, except joint and several liability shall be imposed on all who consciously and deliberately pursue a common plan or design to commit a tortious act, or actively take part in it.
Limits on Attorney Fees No limitations.
Periodic Payments No applicable statute.
Patient Compensation or Injury Fund None provided.
Pre-Trial Alternative Dispute Resolution and Screening Panels No statute provided specific to medical liability/malpractice cases.
Affidavit or Certificate of Merit §11-1-58. The plaintiff must file a certificate of consultation that states the attorney has reviewed the facts of the case and has consulted with at least one (1) expert qualified pursuant to the Mississippi Rules of Civil Procedure and the Mississippi Rules of Evidence who is qualified to give expert testimony as to standard of care or negligence and who the attorney reasonably believes is knowledgeable in the relevant issues involved in the particular action, and that the attorney has concluded on the basis of such review and consultation that there is a reasonable basis for the commencement of such action.
Expert Witness Standards §11-1-61. In any action for injury or death against a physician, whether in contract or in tort, arising out of the provision of or failure to provide health care services, a person may qualify as an expert witness on the issue of the appropriate medical standard of care if the witness is licensed in this state, or some other state, as a doctor of medicine.
Medical or Peer Review Panels §41-63-1 et seq. Evaluation and review of professional health services providers
Missouri
Damage Award Limit or Cap §538.210. Noneconomic damages limited to $350,000 regardless of number of defendants.
§510.265. No award of punitive damages against any defendant shall exceed the greater of: (1) $500,000; or (2) Five times the net amount of the judgment awarded to the plaintiff against the defendant.
Joint and Several Liability Modified joint and several liability. §537.067. If a defendant is found to bear 51 percent or more of fault, then such defendant shall be jointly and severally liable for the amount of the judgment rendered against the defendants. If a defendant is found to bear less than 51 percent of fault, then the defendant shall only be responsible for the percentage of the judgment for which the defendant is determined to be responsible by the trier of fact; except that, a party is responsible for the fault of another defendant or for payment of the proportionate share of another defendant if any of the following applies: (1) The other defendant was acting as an employee of the party; (2) The party's liability for the fault of another person arises out of a duty created by the federal Employers' Liability Act, 45 U.S.C. §51.
Limits on Attorney Fees No limitations.
Periodic Payments §538.205 et seq. If the total amount of damages exceeds $100,000, at the request of any party to such action made prior to the entry of judgment, the court shall include in the judgment a requirement that future damages be paid in whole or in part in periodic or installment payments. Upon the death of a judgment creditor, the right to receive payments of future damages, other than future medical damages, being paid by installments or periodic payments will pass in accordance with the Missouri probate code unless otherwise transferred or alienated prior to death. Payment of future medical damages will continue to the estate of the judgment creditor only for as long as necessary to enable the estate to satisfy medical expenses of the judgment creditor that were due and owing at the time of death, which resulted directly from the injury for which damages were awarded, and do not exceed the dollar amount of the total payments for such future medical damages outstanding at the time of death.
Patient Compensation or Injury Fund None provided.
Pre-Trial Alternative Dispute Resolution and Screening Panels No statute provided specific to medical liability/malpractice cases.
Affidavit or Certificate of Merit §538.225. The plaintiff shall file an affidavit with the court stating that he or she has obtained the written opinion of a legally qualified health care provider which states that the defendant health care provider failed to use such care as a reasonably prudent and careful health care provider would have under similar circumstances and that such failure to use such reasonable care directly caused or directly contributed to cause the damages claimed in the petition.
Expert Witness Standards No statute provided specific to medical liability/malpractice cases.
Medical or Peer Review Panels §537.035. Peer review committees
Montana
Damage Award Limit or Cap §25-9-411. $250,000 limit on past and future damages for noneconomic loss.
§27-1-220. A judge or jury may award, in addition to compensatory damages, punitive damages for the sake of example and for the purpose of punishing a defendant. An award for punitive damages may not exceed $10 million or three percent of a defendant's net worth, whichever is less.
Joint and Several Liability Modified joint and several liability. §27-1-703. Several liability for a party whose negligence is determined to be 50 percent or less of the combined negligence of all persons and is responsible only for the percentage of negligence attributable to that party. The remaining parties are jointly and severally liable for the total less the percentage attributable to the claimant and to any person with whom the claimant has settled or who the plaintiff has released from liability. A party may be jointly liable for all damages caused by the negligence of another if both acted in concert in contributing to the claimant's damages or if one party acted as an agent of the other.
Limits on Attorney Fees No limitations.
Periodic Payments §29-5-401 et seq. A party to an action for a malpractice claim in which $50,000 or more of future damages is awarded may, prior to the entry of judgment, request the court to enter a judgment ordering future damages to be paid in whole or in part by periodic payments rather than by a lump-sum payment. Upon a request, the court shall enter an order for periodic payment of future damages. The total dollar amount of the ordered periodic payments must equal the total dollar amount of the future damages without a reduction to present value. The court shall order that periodic payment of future damages be made, during the life of the judgment creditor or during the continuance of the compensable injury or disability of the judgment creditor, through the purchase of an inflation-indexed annuity approved by the court. If the judgment creditor dies before all periodic payments have been made, the remaining payments become the property of the creditor's estate.
Patient Compensation or Injury Fund None provided.
Pre-Trial Alternative Dispute Resolution and Screening Panels §27-6-101 et seq. Claimants shall submit a case for the consideration of the medical legal panel prior to filing a complaint in any district court or other court sitting in Montana.
§27-6-602. Upon consideration of all the relevant material, the panel shall decide whether there is: (1) substantial evidence that the acts complained of occurred and that they constitute malpractice; and (2) a reasonable medical probability that the patient was injured thereby.
§27-6-606. (1) The panel's decision is without administrative or judicial authority and is not binding upon any party. (2) The panel may recommend an award, approve settlement agreements, and discuss the settlement agreements, all in a manner consistent with this part. All approved settlement agreements are binding on the parties. (3) If the panel decides both questions required by §27-6-602 in the affirmative, the court in which the complaint is filed shall, at the request of a party, require the parties to participate in court-supervised, nonbinding mediation prior to proceeding.
§27-6-704. A panel member may not be called to testify in a proceeding concerning the deliberations, discussions, decisions, and internal proceedings of the panel. The decision and the reasoning and basis for the decision of the panel are not admissible as evidence in an action subsequently brought in a court of law and are not evidence for any purpose in an action brought under §33-18-201, §33-18-242, or common law.
Affidavit or Certificate of Merit No statute provided specific to medical liability/malpractice cases.
Expert Witness Standards §26-2-601. (1) A person may not testify as an expert witness on issues relating to negligence and standards of care and practice in an action on a malpractice claim, as defined in §27-6-103, for or against a health care provider, as defined in §27-6-103, unless the person: (a) is licensed as a health care provider in at least one state and routinely treats or has routinely treated within the previous five years the diagnosis or condition or provides the type of treatment that is the subject matter of the malpractice claim or is or was within the previous five years an instructor of students in an accredited health professional school or accredited residency or clinical research program relating to the diagnosis or condition or the type of treatment that is the subject matter of the malpractice claim; and (b) shows by competent evidence that, as a result of education, training, knowledge, and experience in the evaluation, diagnosis, or treatment of the disease or injury that is the subject matter of the malpractice claim against the health care provider, the person is thoroughly familiar with the standards of care and practice as they related to the act or omission that is the subject matter of the malpractice claim on the date of the incident upon which the malpractice claim is based. (2) If the malpractice claim involves treatment that is recommended or provided by a physician as defined in §37-3-102, a person may not testify as an expert witness with respect to issues of negligence or standards of care and practice concerning the treatment unless the person is also a physician. (3) A person qualified as an expert in one medical specialty or subspecialty is not qualified to testify with respect to a malpractice claim against a health care provider in another medical specialty or subspecialty unless there is a showing that the standards of care and practice in the two specialty or subspecialty fields are substantially similar. This subsection (3) does not apply if the subject matter of the malpractice claim against the health care provider is unrelated to the relevant specialty or subspecialty.
Medical or Peer Review Panels §37-2-201. Non-liability for peer review
Nebraska
Damage Award Limit or Cap §44-2825. Total damages limited to $1,750,000. Health care provider liability limited to $500,000. Any excess of total liability of all health care providers paid from Excess Liability Fund.
Joint and Several Liability Modified joint and several liability. §25-21.185.10. The liability of each defendant for economic damages shall be joint and several and the liability of each defendant for noneconomic damages shall be several only and shall not be joint. Each defendant shall be liable only for the amount of noneconomic damages allocated to that defendant in direct proportion to that defendant's percentage of negligence.
Limits on Attorney Fees §44-2834. In all cases against a health care provider for malpractice or professional negligence, upon motion of either party the court shall review the attorney's fees incurred by that party and allow such compensation as the court shall deem reasonable.
Periodic Payments No applicable statute.
Patient Compensation or Injury Fund §44-2829 et seq. Excess Liability Fund participation required and surcharge assessed to physicians.
Pre-Trial Alternative Dispute Resolution and Screening Panels §44-2840 et seq. Medical review panels shall review all malpractice claims against health care providers covered by the Nebraska Hospital-Medical Liability Act in advance of filing such actions. The claimant may affirmatively waive his or her right to a panel review, and in such case the claimant may proceed to file his or her action directly in court.
§44-2843. The panel shall, within 30 days, render one or more of the following expert opinions which shall be in writing and mailed to each of the parties: (a) The evidence supports the conclusion that the defendant failed to comply with the appropriate standard of care as charged in the complaint in specified particulars; (b) The evidence supports the conclusion that the defendant involved met the applicable standard of care required under the circumstances; or (c) There is a material issue of fact, not requiring expert opinion, bearing on liability for consideration by the court or jury in specified particulars.
§44-2844. The report or any minority report of the medical review panel shall be admissible as evidence in any action subsequently brought by the claimant in a court of law, but such report shall not be conclusive and either party shall have the right to call any member of the medical review panel as a witness. If called, the witness shall be required to appear and testify.
Affidavit or Certificate of Merit No statute provided specific to medical liability/malpractice cases.
Expert Witness Standards No statute provided specific to medical liability/malpractice cases.
Medical or Peer Review Panels §25-12,123. Confidentiality of peer review committees
§71-2046 et seq. Medical staff review committees
§71-7901 et seq. Peer review committees
Nevada
Damage Award Limit or Cap §41A.035. $350,000 limit on noneconomic damages.
§42.005. Exemplary or punitive damages made pursuant to this section may not exceed: (a) Three times the amount of compensatory damages awarded to the plaintiff if the amount of compensatory damages is $100,000 or more; or (b) $300,000 if the amount of compensatory damages awarded to the plaintiff is less than $100,000.
Joint and Several Liability Several liability. §41A.045. Defendants proportionally liable according to percentage of fault for economic and noneconomic damages awarded.
Limits on Attorney Fees §7.095. Sliding scale for attorney fees, not to exceed 40 percent of first $50,000; 33-1/3 percent of next $50,000; 25 percent of next $500,000; 15 percent of any amount over $600,000.
Periodic Payments §42.020 et seq. If the future damages equals or exceeds $50,000, a district court shall, at the request of either party, enter a judgment ordering that money damages or its equivalent for future damages of the judgment creditor be paid in whole or in part by periodic payments rather than by a lump-sum payment Such payments must only be subject to modification in the event of the death of the judgment creditor. Money damages awarded for loss of future earnings must not be reduced or payments terminated by reason of the death of the judgment creditor, but must be paid to persons to whom the judgment creditor owed a duty of support, as provided by law, immediately before the judgment creditor’s death. In such cases, the court that rendered the original judgment may, upon petition of any party in interest, modify the judgment to award and apportion the unpaid future damages in accordance with this subsection.
Patient Compensation or Injury Fund None provided.
Pre-Trial Alternative Dispute Resolution and Screening Panels §41A.081. In an action for medical malpractice or dental malpractice, all the parties to the action, the insurers of the respective parties and the attorneys of the respective parties shall attend and participate in a settlement conference before a district judge, other than the judge assigned to the action, to ascertain whether the action may be settled by the parties before trial.
Affidavit or Certificate of Merit §41A.071. An action must be filed with an affidavit, supporting the allegations contained in the action, submitted by a medical expert who practices or has practiced in an area that is substantially similar to the type of practice engaged in at the time of the alleged malpractice.
Expert Witness Standards §41A.100. Expert medical testimony may only be given by a provider of medical care who practices or has practiced in an area that is substantially similar to the type of practice engaged in at the time of the alleged negligence.
Medical or Peer Review Panels §49.265. Review committees for medical or dental care
New Hampshire
Damage Award Limit or Cap No limitations. Limits on noneconomic damages (§507-C:7) declared unconstitutional by state Supreme Court (see Carson v. Maurer, 120 N.H. 925, 424 A.2d 825 (1980) and Brannigan v. Usitalso, 134 N.H. 50, 587 A.2d 1232 (1991)).
Joint and Several Liability Modified joint and several liability. §507:7-e. The court shall enter judgment against each party liable on the basis of the rules of joint and several liability, except that if any party shall be less than 50 percent at fault, then that party's liability shall be several and not joint and he shall be liable only for the damages attributable to him. In all cases where parties are found to have knowingly pursued or taken active part in a common plan or design resulting in the harm, the court shall grant judgment against all such parties on the basis of the rules of joint and several liability. If, within 60 days of final judgment, the damages are uncollectible, then the court may reallocate the liability for the uncollected portion of the judgment based upon the other joint tortfeasors' relative degrees of fault.
Limits on Attorney Fees §507-C:8. Limits declared unconstitutional by state Supreme Court (see Carson v. Maurer, 120 N.H. 925, 424 A.2d 825 (1980)).
§508:4-e. Contingent fee agreements between attorney and client shall be governed by Rules of Professional Conduct, Rule 1.5 as it may be amended by the supreme court from time to time and by any other rules regarding fees which are adopted or amended by the court. All fees and costs for actions, resulting in settlement or judgment of $200,000 or more, shall be subject to approval by the court.
Periodic Payments Election for periodic payments for future damages in excess of $50,000 (§507-C:7) declared unconstitutional by state Supreme Court (see Carson v. Maurer, 120 N.H. 925, 424 A.2d 825 (1980)).
§524:6-a. Whenever judgment is rendered against any person in this state, the court in which the judgment is rendered shall either at the time of rendition of the judgment inquire of the defendant as to the defendant's ability to pay the judgment in full or, upon petition of the plaintiff after judgment, order the defendant to appear in court for such inquiry. The court may at either time order the defendant to make such periodic payments as the court in its discretion deems appropriate.
Patient Compensation or Injury Fund None provided.
Pre-Trial Alternative Dispute Resolution and Screening Panels §519-B:1 et seq. The purposes of pretrial screening panels are: (a) To identify claims of professional negligence which merit compensation and to encourage early resolution of those claims prior to commencement of a lawsuit; and (b) To identify claims of professional negligence and to encourage early withdrawal or dismissal of non-meritorious claims.
§519-B:4. All parties to a claim may, by written agreement, submit a claim to the binding determination of the panel. Both parties may agree to bypass the panel for any reason, or may request that certain preliminary legal affirmative defenses or issues be litigated prior to submission of the case to the panel. The panel shall have no jurisdiction to hear or decide, absent agreement of the parties, dispositive legal affirmative defenses, other than comparative negligence.
§519-B:6. the panel shall make its findings regarding negligence and causation 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 medical care provider charged with that care; (b) Whether the acts or omissions complained of proximately caused the injury complained of; and (c) If fault on the part of the medical care provider is found, whether any fault on the part of the patient was equal to or greater than the fault on the part of the provider.
§519-B:8. The findings and other writings of the panel and any evidence and statements made by a party or a party's representative during a panel hearing are not admissible in court and shall not be submitted or used for any purpose in a subsequent trial and shall not be publicly disclosed, except as follows: (1) Any testimony or writings made under oath may be used in subsequent proceedings for purposes of impeachment. (2) The party who made a statement or presented evidence may agree to the submission, use, or disclosure of that statement or evidence.
Affidavit or Certificate of Merit No statute provided specific to medical liability/malpractice cases.
Expert Witness Standards §507-C:3 declared unconstitutional by state supreme court (see Carson v. Maurer, 424 A.2d 825 (1980)).
Medical or Peer Review Panels §151:13-a et seq. Confidentiality of review committees
§151-D:2. Confidentiality of quality assurance program
§329:29 et seq. Confidentiality of medical review committees
New Jersey
Damage Award Limit or Cap §2A:15-5.14. No defendant shall be liable for punitive damages in any action in an amount in excess of five times the liability of that defendant for compensatory damages or $350,000, whichever is greater.
Joint and Several Liability Modified joint and several liability. §2A:15-5.2 Court must determine each party’s negligence or fault in a percentage.
§2A:15-5.3. A party recovering damages may get the full amount of the damages from any party determined to be 60 percent or more responsible for the total damages and only that percentage of the damages directly attributable to that party's negligence or fault from any party determined to be less than 60 percent responsible for the total damages.
Limits on Attorney Fees Court Rules §1:21-7. Sliding scale, not to exceed 33-1/3 percent of first $500,000; 30 percent of next $500,000; 25 percent of third $500,000; 20 percent of fourth $500,000; on all amounts recovered in excess of the above by application for reasonable fee in accordance with the provisions of paragraph (f) hereof; and where the amount recovered is for the benefit of a client who was a minor or mentally incapacitated when the contingent fee arrangement was made, the foregoing limits shall apply, except that the fee on any amount recovered by settlement without trial shall not exceed 25 percent.
Periodic Payments No applicable statute.
Patient Compensation or Injury Fund None provided.
Pre-Trial Alternative Dispute Resolution and Screening Panels §2A:23-20 et seq. Any civil action brought for personal injury, except for actions brought pursuant to the provisions of C. 39:6A-1 et seq., shall be submitted, except as hereinafter provided, to arbitration if the court determines that the amount in controversy is $20,000 or less, exclusive of costs.
§2A:23-28. No statements, admissions or testimony made at the arbitration proceedings, nor the arbitration decision, as confirmed or modified by the court, shall be used or referred to at the trial de novo by any of the parties, except that the court may consider any of those matters in determining the amount of any reduction in assessments made pursuant to §10 of this act.
§2A:53A-39. The judge presiding over a medical malpractice action, or the judge's designee, shall, within 30 days after the discovery end date, determine whether referral to a complementary dispute resolution mechanism may encourage early disposition or settlement of the action. If the judge makes such a determination, the matter shall be referred to complementary dispute resolution pursuant to Rule 1:40 of the Rules Governing the Courts of the State of New Jersey. Nothing in this section shall be construed to limit the authority of the judge to refer an action to complementary dispute resolution prior to the discovery end date.
Affidavit or Certificate of Merit 2A:53A-27. The plaintiff shall provide an affidavit of lack of care executed by a person who shall meet the requirements of a person who provides expert testimony or executes an affidavit as set forth in C.2A:53A-41 that states there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices.
Expert Witness Standards
§2A:53A-41. In an action alleging medical malpractice, a person shall not give expert testimony or execute an affidavit pursuant to the provisions of C.2A:53A-26 et seq. on the appropriate standard of practice or care unless the person is licensed as a physician or other health care professional in the United States and meets the following criteria: a. If the party against whom or on whose behalf the testimony is offered is a specialist or subspecialist recognized by the American Board of Medical Specialties or the American Osteopathic Association and the care or treatment at issue involves that specialty or subspecialty recognized by the American Board of Medical Specialties or the American Osteopathic Association, the person providing the testimony shall have specialized at the time of the occurrence that is the basis for the action in the same specialty or subspecialty, recognized by the American Board of Medical Specialties or the American Osteopathic Association, as the party against whom or on whose behalf the testimony is offered, and if the person against whom or on whose behalf the testimony is being offered is board certified and the care or treatment at issue involves that board specialty or subspecialty recognized by the American Board of Medical Specialties or the American Osteopathic Association, the expert witness shall be: (1) a physician credentialed by a hospital to treat patients for the medical condition, or to perform the procedure, that is the basis for the claim or action; or (2) a specialist or subspecialist recognized by the American Board of Medical Specialties or the American Osteopathic Association who is board certified in the same specialty or subspecialty, recognized by the American Board of Medical Specialties or the American Osteopathic Association, and during the year immediately preceding the date of the occurrence that is the basis for the claim or action, shall have devoted a majority of his professional time to either: (a) the active clinical practice of the same health care profession in which the defendant is licensed, and, if the defendant is a specialist or subspecialist recognized by the American Board of Medical Specialties or the American Osteopathic Association, the active clinical practice of that specialty or subspecialty recognized by the American Board of Medical Specialties or the American Osteopathic Association; or (b) the instruction of students in an accredited medical school, other accredited health professional school or accredited residency or clinical research program in the same health care profession in which the defendant is licensed, and, if that party is a specialist or subspecialist recognized by the American Board of Medical Specialties or the American Osteopathic Association, an accredited medical school, health professional school or accredited residency or clinical research program in the same specialty or subspecialty recognized by the American Board of Medical Specialties or the American Osteopathic Association; or (c) both.
b. If the party against whom or on whose behalf the testimony is offered is a general practitioner, the expert witness, during the year immediately preceding the date of the occurrence that is the basis for the claim or action, shall have devoted a majority of his professional time to: (1) active clinical practice as a general practitioner; or active clinical practice that encompasses the medical condition, or that includes performance of the procedure, that is the basis of the claim or action; or (2) the instruction of students in an accredited medical school, health professional school, or accredited residency or clinical research program in the same health care profession in which the party against whom or on whose behalf the testimony is licensed; or (3) both.
c. A court may waive the same specialty or subspecialty recognized by the American Board of Medical Specialties or the American Osteopathic Association and board certification requirements of this section, upon motion by the party seeking a waiver, if, after the moving party has demonstrated to the satisfaction of the court that a good faith effort has been made to identify an expert in the same specialty or subspecialty, the court determines that the expert possesses sufficient training, experience and knowledge to provide the testimony as a result of active involvement in, or full-time teaching of, medicine in the applicable area of practice or a related field of medicine.
Medical or Peer Review Panels §2A:84A-22.10. Professional review committees
New Mexico
Damage Award Limit or Cap §41-5-6. $600,000 total limit on all damages. The value of accrued medical care and related benefits shall not be subject to the $600,000 limitation. Monetary damages shall not be awarded for future medical expenses in malpractice claims. A health care provider's personal liability is limited to $200,000 for monetary damages and medical care and related benefits as provided in §41-5-7 NMSA 1978. Any amount due from a judgment or settlement in excess of $200,000 shall be paid from the patient's compensation fund.
§41-5-7. Awards of future medical care and related benefits shall not be subject to the $600,000 limitation imposed in §41-5-6.
Joint and Several Liability Several liability. §41-3A-1. Any defendant who establishes that the fault of another is a proximate cause of a plaintiff's injury shall be liable only for that portion of the total dollar amount awarded as damages to the plaintiff that is equal to the ratio of such defendant's fault to the total fault attributed to all persons, including plaintiffs, defendants and persons not party to the action. The doctrine imposing joint and several liability shall apply: (1) to any person or persons who acted with the intention of inflicting injury or damage; (2) to any persons whose relationship to each other would make one person vicariously liable for the acts of the other, but only to that portion of the total liability attributed to those persons; (3) to any persons strictly liable for the manufacture and sale of a defective product, but only to that portion of the total liability attributed to those persons; or (4) to situations not covered by any of the foregoing and having a sound basis in public policy.
Limits on Attorney Fees No limitations.
Periodic Payments §41-5-7. Payment for future medical care and related benefits shall be made as expenses are incurred. The health care provider shall be liable for all medical care and related benefit payments until the total payments made by or on behalf of it for monetary damages and medical care and related benefits combined equals $200,000, after which the payments shall be made by the patient's compensation fund.
Patient Compensation or Injury Fund §41-5-25. Patient’s Compensation Fund. Superintendent has authority to purchase insurance for fund and its obligations. Health Care providers pay surcharge of insurance premiums into fund.
Pre-Trial Alternative Dispute Resolution and Screening Panels §41-5-14 et seq. The New Mexico medical review commission is to provide panels to review all malpractice claims against health care providers covered by the Medical Malpractice Act.
§41-5-20. Upon consideration of all the relevant material, the panel shall decide only two questions: (1) whether there is substantial evidence that the acts complained of occurred and that they constitute malpractice; and (2) whether there is a reasonable medical probability that the patient was injured thereby. The report of the medical review panel shall not be admissible as evidence in any action subsequently brought in a court of law. The panel's decisions shall be without administrative or judicial authority and shall not be binding on any party. The panel shall make no effort to settle or compromise any claim nor express any opinion on the monetary value of any claim.
Affidavit or Certificate of Merit No statute provided specific to medical liability/malpractice cases.
Expert Witness Standards §41-5-23. In any malpractice claim where the panel has determined that the acts complained of were or reasonably might constitute malpractice and that the patient was or may have been injured by the act, the panel, its members, the director and the professional association concerned will cooperate fully with the patient in retaining a physician qualified in the field of medicine involved, who will consult with, assist in trial preparation and testify on behalf of the patient, upon his payment of a reasonable fee to the same effect as if the physician had been engaged originally by the patient.
Medical or Peer Review Panels No statute provided specific to medical liability/malpractice cases.
New York
Damage Award Limit or Cap No applicable statute.
Joint and Several Liability Modified joint and several liability. Civil Practice Law and Rules §1600 et seq. Defendants are proportionally liable according to percentage of fault, unless found more than 50 percent at fault, for noneconomic damages awarded. Defendants can be held joint and severally liable for economic damages.
Limits on Attorney Fees Jud. 30 §474-a. Sliding scale, not to exceed 30 percent of first $250,000; 25 percent of second $250,000; 20 percent of next $500,000; 15 percent of next $250,000; 10 percent over $1.25 million. In the event the attorney believes in good faith that the fee schedule, because of extraordinary circumstances, will not give adequate compensation, application for greater compensation may be made upon affidavit with written notice and an opportunity to be heard to the claimant or plaintiff and other persons holding liens or assignments on the recovery.
Periodic Payments Civil Practice Law and Rules §5031 et seq. As to any award of damages for future pain and suffering in excess of §500,000, the court shall determine the greater of 35 percent of such damages or §500,000 and such amount shall be paid in a lump sum. The remaining amount of the award for damages for future pain and suffering shall be paid in a stream of payments over the period of time determined by the trier of fact or eight years, whichever is less.
Patient Compensation or Injury Fund Public Health §2999-G et seq. There is hereby created the New York state medical indemnity fund (the "fund"). The purpose of the fund is to provide a funding source for future health care costs associated with birth related neurological injuries, in order to reduce premium costs for medical malpractice insurance coverage.
Pre-Trial Alternative Dispute Resolution and Screening Panels Civil Practice Law & Rules §3045. Any defendant may demand that the plaintiff elect whether to consent to the arbitration of damages upon a concession of liability.
Civil Practice Law & Rules §3409. In every dental, podiatric or medical malpractice action, the court shall hold a mandatory settlement conference within 45 days after the filing of the note of issue and certificate of readiness or, if a party moves to vacate the note of issue and certificate of readiness, within 45 days after the denial of such motion. Where parties are represented by counsel, only attorneys fully familiar with the action and authorized to dispose of the case, or accompanied by a person empowered to act on behalf of the party represented, will be permitted to appear at the conference. Where appropriate, the court may order parties, representatives of parties, representatives of insurance carriers or persons having an interest in any settlement to also attend in person or telephonically at the settlement conference. The chief administrative judge shall by rule adopt procedures to implement such settlement conference.
Civil Practice Law & Rules §7550 et seq. Applies to all claims for damages because of injury or death resulting from health care or treatment rendered or failed to be rendered to enrollees and other covered family members of health maintenance organizations.
Civil Practice Law & Rules §7565. A decision of a panel of arbitrators shall be binding on all parties, unless modified or vacated pursuant to §7509 or §7511 of this chapter.
Public Health §4406-a. The enrollee contract of a health maintenance organization may permit enrollees and adult members of the enrollee's family who are covered by such contract to elect to have all claims for damages subject to binding arbitration.
Affidavit or Certificate of Merit Civil Practice Laws & Rules §3012-a. In any action for medical, dental or podiatric malpractice, the complaint shall be accompanied by a certificate, executed by the attorney for the plaintiff, declaring that: (1) the attorney has reviewed the facts of the case and has consulted with at least one physician in medical malpractice actions, at least one dentist in dental malpractice actions or at least one podiatrist in podiatric malpractice actions who is licensed to practice in this state or any other state and who the attorney reasonably believes is knowledgeable in the relevant issues involved in the particular action, and that the attorney has concluded on the basis of such review and consultation that there is a reasonable basis for the commencement of such action.
Expert Witness Standards No statute provided specific to medical liability/malpractice cases.
Medical or Peer Review Panels No statute provided specific to medical liability/malpractice cases.
North Carolina
Damage Award Limit or Cap §1D-25. Punitive damages shall not exceed three times the amount of compensatory damages or $250,000, whichever is greater.
§90-21.19 (2011 Chapter 400). (a) Except as otherwise provided in subsection (b) of this section, in any medical malpractice action in which the plaintiff is entitled to an award of noneconomic damages, the total amount of noneconomic damages for which judgment is entered against all defendants shall not exceed $500,000. Judgment shall not be entered against any defendant for noneconomic damages in excess of $500,000 for all claims brought by all parties arising out of the same professional services. On January 1 of every third year, beginning with January 1, 2014, the Administrative Office of the Courts shall reset the limitation on damages for noneconomic loss set forth in this subsection to be equal to $500,000 times the ratio of the Consumer Price Index for November of the prior year to the Consumer Price Index for November 2011. The Administrative Office of the Courts shall inform the Revisor of Statutes of the reset limitation. The Revisor of Statutes shall publish this reset limitation as an editor's note to this section. In the event that any verdict or award of noneconomic damages stated pursuant to G.S. 90-21.19B exceeds these limits, the court shall modify the judgment as necessary to conform to the requirements of this subsection.
(b) Notwithstanding subsection (a) of this section, there shall be no limit on the amount of noneconomic damages for which judgment may be entered against a defendant if the trier of fact finds both of the following: (1) The plaintiff suffered disfigurement, loss of use of part of the body, permanent injury or death. (2) The defendant's acts or failures, which are the proximate cause of the plaintiff's injuries, were committed in reckless disregard of the rights of others, grossly negligent, fraudulent, intentional or with malice.
Joint and Several Liability Joint and several liability. §1B-1 et seq.
Limits on Attorney Fees No limitations.
Periodic Payments No applicable statute.
Patient Compensation or Injury Fund None provided.
Pre-Trial Alternative Dispute Resolution and Screening Panels §90-21.60 et seq. The parties may agree to submit the dispute to arbitration before or after the action has been filed.
Affidavit or Certificate of Merit No statute provided specific to medical liability/malpractice cases.
Expert Witness Standards §8C-1, Rule 702 (2011 Chapter 400). (b) In a medical malpractice action as defined in G.S. 90-21.11, a person shall not give expert testimony on the appropriate standard of health care as defined in G.S. 90-21.12 unless the person is a licensed health care provider in this state or another state and meets the following criteria: (1) If the party against whom or on whose behalf the testimony is offered is a specialist, the expert witness must: a. Specialize in the same specialty as the party against whom or on whose behalf the testimony is offered; or b. Specialize in a similar specialty which includes within its specialty the performance of the procedure that is the subject of the complaint and have prior experience treating similar patients. (2) During the year immediately preceding the date of the occurrence that is the basis for the action, the expert witness must have devoted a majority of his or her professional time to either or both of the following: a. The active clinical practice of the same health profession in which the party against whom or on whose behalf the testimony is offered, and if that party is a specialist, the active clinical practice of the same specialty or a similar specialty which includes within its specialty the performance of the procedure that is the subject of the complaint and have prior experience treating similar patients; or b. The instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health profession in which the party against whom or on whose behalf the testimony is offered, and if that party is a specialist, an accredited health professional school or accredited residency or clinical research program in the same specialty.
(c) Notwithstanding subsection (b) of this section, if the party against whom or on whose behalf the testimony is offered is a general practitioner, the expert witness, during the year immediately preceding the date of the occurrence that is the basis for the action, must have devoted a majority of his or her professional time to either or both of the following: (1) Active clinical practice as a general practitioner; or (2) Instruction of students in an accredited health professional school or accredited residency or clinical research program in the general practice of medicine.
(d) Notwithstanding subsection (b) of this section, a physician who qualifies as an expert under subsection (a) of this Rule and who by reason of active clinical practice or instruction of students has knowledge of the applicable standard of care for nurses, nurse practitioners, certified registered nurse anesthetists, certified registered nurse midwives, physician assistants, or other medical support staff may give expert testimony in a medical malpractice action with respect to the standard of care of which he is knowledgeable of nurses, nurse practitioners, certified registered nurse anesthetists, certified registered nurse midwives, physician assistants licensed under Chapter 90 of the General Statutes, or other medical support staff.
Medical or Peer Review Panels §90-21.22 et seq. Peer review
§131E-95. Medical review committees
North Dakota
Damage Award Limit or Cap §32-42-02. $500,000 limit on noneconomic damages.
§32-03.2-08. Economic damage awards in excess of $250,000 subject to court review.
Joint and Several Liability Several liability. §32-03.2-02. When two or more parties are found to have contributed to the injury, the liability of each party is several only, and is not joint, and each party is liable only for the amount of damages attributable to the percentage of fault of that party, except that any persons who act in concert in committing a tortious act or aid or encourage the act, or ratifies or adopts the act for their benefit, are jointly liable for all damages attributable to their combined percentage of fault.
Limits on Attorney Fees §28-26-01. The amount of fees of attorneys in civil actions must be left to the agreement, express or implied, of the parties.
Periodic Payments §32-03.2-01 et seq., If an injured party claims future economic damages for continuing institutional or custodial care that will be required for a period of more than two years, at the discretion of the court any party may request the trier of fact to make a special finding of the total amount awarded for this care, separate from other future economic damages, and if a separate award is made, any party may make periodic payments for this care in an amount approved by the court, provided payment of the total award for this care is adequately secured. The adequacy of the periodic payments within the limit of the total award will be subject to review by the court from time to time, and upon the death of the injured person the obligation to provide for further continuing care shall terminate.
Patient Compensation or Injury Fund None provided.
Pre-Trial Alternative Dispute Resolution and Screening Panels §32-42-01 et seq. The claimant and health care provider shall make a good-faith effort to resolve part or all of the health care malpractice claim through alternative dispute resolution before the claimant initiates a health care malpractice action.
Affidavit or Certificate of Merit §28-01-46. The plaintiff must serve upon the defendant an affidavit containing an admissible expert opinion to support a prima facie case of professional negligence. The court may set a later date for serving the affidavit for good cause shown by the plaintiff if the plaintiff’s request for an extension of time is made before the expiration of the three-month period following commencement of the action. The expert's affidavit must identify the name and business address of the expert, indicate the expert's field of expertise, and contain a brief summary of the basis for the expert's opinion. This section does not apply to unintentional failure to remove a foreign substance from within the body of a patient, or performance of a medical procedure upon the wrong patient, organ, limb, or other part of the patient's body, or other obvious occurrence.
Expert Witness Standards No statute provided specific to medical liability/malpractice cases.
Medical or Peer Review Panels §23-34-01 et seq. Peer review organizations
§23-34-02.1. Any report, data, data compilation, analyses, or summary that is generated by a peer review organization and made available to the state department of health or the public by the state department of health, the North Dakota healthcare association, or the North Dakota hospital foundation, may not be introduced into evidence, for any purpose, in any civil or administrative proceeding.
§23-34-03. Peer review records are privileged and are not subject to subpoena or discovery or introduction into evidence in any civil or administrative action, except: a. Records gathered from an original source that is not a peer review organization; b. Testimony from any person as to matters within that person's knowledge, provided the information was not obtained by the person as a result of the person's participation in a professional peer review; or c. Peer review records subpoenaed in an investigation conducted by an investigative panel of the board of medical examiners pursuant to chapter 43-17.1 or subpoenaed in a disciplinary action before the board of medical examiners pursuant to §43-17-30.1.
Any peer review records provided to an investigative panel of the board of medical examiners or introduced as evidence in any disciplinary action before the board are confidential and are not subject to subpoena, discovery, or admissibility into evidence in any civil or administrative action, and are not public records subject to §44-04-18 and §6 of article XI of the Constitution of North Dakota.
§23-34-06. A person furnishing peer review records to a peer review organization with respect to any patient examined or treated by a health care provider is not, by reason of furnishing the records, liable in damages to any person or for willful violation of a privileged communication.
A health care organization, health care provider, or member of a peer review organization is not liable in damages to any person for any action taken or recommendation made regarding a professional peer review, if the health care organization, health care provider, or member of the peer review organization acts without malice and in the reasonable belief that the action or recommendation is warranted by the facts known to the health care organization, health care provider, or member of the peer review organization.
Ohio
Damage Award Limit or Cap §2315.21. Punitive and exemplary damages limited to twice the amount of compensatory damages. If the defendant is a small employer or individual, the court shall not enter judgment for punitive or exemplary damages in excess of the lesser of two times the amount of the compensatory damages awarded to the plaintiff from the defendant or 10 percent of the employer’s or individual’s net worth when the tort was committed up to a maximum of $350,000.
§2323.43. No limitation on compensatory damages that represent the economic loss of the person who is awarded the damages in the civil action. Noneconomic damages shall not exceed the greater of $250,000 or an amount that is equal to three times the plaintiff’s economic loss, as determined by the trier of fact, to a maximum of $350,000 for each plaintiff or a maximum of $500,000 for each occurrence. Noneconomic damages may exceed the amount described above but shall not exceed $500,000 for each plaintiff or $1 million for each occurrence if the noneconomic losses of the plaintiff are for either of the following: (a) Permanent and substantial physical deformity, loss of use of a limb, or loss of a bodily organ system; (b) Permanent physical functional injury that permanently prevents the injured person from being able to independently care for self and perform life sustaining activities.
Joint and Several Liability
Modified joint and several liability. §2307.22. If more than 50 per cent of the tortious conduct is attributable to one defendant, that defendant shall be jointly and severally liable in tort for all compensatory damages that represent economic loss. If this section applies, each defendant to whom 50 percent or less of the tortious conduct is attributable shall be liable to the plaintiff only for that defendant’s proportionate share of the compensatory damages that represent economic loss.
If 50 percent or less of the tortious conduct is attributable to any defendant against whom an intentional tort claim has been alleged and established, that defendant shall be jointly and severally liable in tort for all compensatory damages that represent economic loss. If this section applies, each defendant against whom an intentional tort claim has not been alleged and established, who is determined to be legally responsible for the same injury or loss to person or property or the same wrongful death, and to whom 50 percent or less of the tortious conduct is attributable shall be liable to the plaintiff only for that defendant’s proportionate share of the compensatory damages that represent economic loss. Each person shall be liable to the plaintiff only for that defendant’s proportionate share of the compensatory damages that represent noneconomic loss.
Limits on Attorney Fees §2323.43 (F). If the amount of the attorney’s fees exceed the applicable amount of the limits on compensatory damages for noneconomic loss, the attorney shall apply to the court and the attorney’s fees shall be subject to the approval of the probate court of the county in which the civil action was commenced or in which the settlement was entered.
Periodic Payments §2323.55 et seq. If the amount of future damages exceed $50,000, the plaintiff or defendant may file a motion with the court that seeks a determination whether all or any part of the future damages recoverable by the plaintiff shall be received by the plaintiff in a series of periodic payments rather than in a lump sum. The court shall determine, in its discretion, whether all or any part of the future damages recoverable by the plaintiff shall be received by the plaintiff in a series of periodic payments rather than in a lump sum. If the court determines that a plaintiff shall receive the future damages recoverable by the plaintiff in a series of periodic payments, it may order the payments only as to the amount of the future damages recoverable by the plaintiff that exceeds $50,000. If a court orders a series of periodic payments of future damages in accordance with this section and the plaintiff dies prior to the receipt of all of the future damages, the liability for the unpaid portion of those damages that is not yet due at the time of the death of that plaintiff shall continue, but the payments shall be paid to the heirs of that plaintiff as scheduled in and otherwise in accordance with the approved periodic payments plan or, if the plan does not contain a relevant provision, as the court shall order.
§2323.56. In any tort action that is tried to a court and in which a plaintiff makes a good faith claim against the defendant in question for future damages that exceed both $200,000 and 25 percent of the total of the damages the plaintiff or defendant in question may file a motion with the court that seeks a determination whether all or any part of the total of the portions of the future damages on shall be received by the plaintiff in question in a series of periodic payments rather than in a lump sum. If the court determines that a series of periodic payments shall be received by that plaintiff, it may order such payments only as to the amount of that total that exceeds both $200,000 and 25 percent of the total of the damages described in divisions (B)(1)(a) and (b) of this section. If a court orders a series of periodic payments of future damages in accordance with this section, the following rules shall govern those payments if the plaintiff in question dies prior to the receipt of all of them: (1) The liability for the portion of those payments that represents future economic loss as described in division (B)(1)(b)(iv) of this section and that is not due at the time of the death of that plaintiff shall cease at that time; (2) The liability for the portion of those payments that represents future noneconomic loss of that plaintiff as described in division (B)(1)(b)(i) of this section and that is not due at the time of the death of that plaintiff shall continue, but the payments shall be paid to the heirs of that plaintiff as scheduled in and otherwise in accordance with the approved periodic payments plan or, if the plan does not contain a relevant provision, as the court shall order; (3) The liability for the portion of those payments not described in division (F)(1) or (2) of this section shall continue, but the payments shall be paid as described in division (F)(2) of this section.
Patient Compensation or Injury Fund None provided.
Pre-Trial Alternative Dispute Resolution and Screening Panels §2711.21 et seq. If all of the parties to the medical, dental, optometric, or chiropractic claim agree to submit it to nonbinding arbitration, the controversy shall be submitted to an arbitration board. If the decision of the arbitration board is not accepted by all parties to the medical, dental, optometric, or chiropractic claim, the claim shall proceed as if it had not been submitted to nonbinding arbitration pursuant to this section. The decision of the arbitration board and any dissenting opinion written by any board member are not admissible into evidence at the trial.
§2711.22. Except as otherwise provided in this section, a written contract between a patient and a hospital or healthcare provider to settle by binding arbitration any dispute or controversy arising out of the diagnosis, treatment, or care of the patient rendered by a hospital or healthcare provider, that is entered into prior to the diagnosis, treatment, or care of the patient is valid, irrevocable, and enforceable once the contract is signed by all parties.
Affidavit or Certificate of Merit Ohio R. Civ. P. 10. A complaint that contains a medical claim, dental claim, optometric claim, or chiropractic claim, as defined in §2305.113 of the Revised Code, shall include one or more affidavits of merit relative to each defendant named in the complaint for whom expert testimony is necessary to establish liability. Affidavits of merit shall include all of the following: (i) A statement that the affiant has reviewed all medical records reasonably available to the plaintiff concerning the allegations contained in the complaint; (ii) A statement that the affiant is familiar with the applicable standard of care; (iii) The opinion of the affiant that the standard of care was breached by one or more of the defendants to the action and that the breach caused injury to the plaintiff.
Expert Witness Standards §2743.43. No person shall be deemed competent to give expert testimony on the liability issues in a medical claim, as defined in §2305.113 of the Revised Code, unless: (1) Such person is licensed to practice medicine and surgery, osteopathic medicine and surgery, or podiatric medicine and surgery by the state medical board or by the licensing authority of any state; (2) Such person devotes three-fourths of the person’s professional time to the active clinical practice of medicine or surgery, osteopathic medicine and surgery, or podiatric medicine and surgery, or to its instruction in an accredited university; (3) The person practices in the same or a substantially similar specialty as the defendant. The court shall not permit an expert in one medical specialty to testify against a health care provider in another medical specialty unless the expert shows both that the standards of care and practice in the two specialties are similar and that the expert has substantial familiarity between the specialties. (4) If the person is certified in a specialty, the person must be certified by a board recognized by the American board of medical specialties or the American board of osteopathic specialties in a specialty having acknowledged expertise and training directly related to the particular health care matter at issue.
Medical or Peer Review Panels §2305.25 et seq. Peer review committee
Oklahoma
Damage Award Limit or Cap 23 §9.1. Where the jury finds by clear and convincing evidence that: The defendant has been guilty of reckless disregard for the rights of others; the jury, may award punitive damages in an amount not to exceed the greater of: a. $100,000, or b. the amount of the actual damages awarded. Where the jury finds by clear and convincing evidence that: The defendant has acted intentionally and with malice towards others; the jury may award punitive damages in an amount not to exceed the greatest of: a. $500,000, b. twice the amount of actual damages awarded, or c. the increased financial benefit derived by the defendant as a direct result of the conduct causing the injury to the plaintiff and other persons or entities. Where the jury finds by clear and convincing evidence that: The defendant has acted intentionally and with malice towards others; and the court finds that there is evidence beyond a reasonable doubt that the defendant acted intentionally and with malice and engaged in conduct life-threatening to humans, the jury, may award punitive damages in any amount the jury deems appropriate, without regard to the limitations set forth above.
23 §61.2 (2011 Chapter 14). A. In any civil action arising from a claimed bodily injury, the amount of compensation which the trier of fact may award a plaintiff for economic loss shall not be subject to any limitation.
B. Except as provided in subsection C of this section, in any civil action arising from a claimed bodily injury, the amount of compensation which a trier of fact may award a plaintiff for noneconomic loss shall not exceed $350,000, regardless of the number of parties against whom the action is brought or the number of actions brought.
C. Notwithstanding subsection B of this section, there shall be no limit on the amount of noneconomic damages which the trier of fact may award the plaintiff in a civil action arising from a claimed bodily injury resulting from negligence if the judge and jury finds, by clear and convincing evidence, that the defendant’s acts or failures to act were: 1. In reckless disregard for the rights of others; 2. Grossly negligent; 3. Fraudulent; or 4. Intentional or with malice.
Joint and Several Liability Modified joint and several liability. 23 §15. Defendants are proportionally liable according to percentage of fault for damages awarded, but will be jointly and severally liable if the percentage of responsibility attributed to the defendant is greater than 50 percent. If at the time the incident which gave rise to the cause of action occurred, a joint tortfeasor acted with willful and wanton conduct or with reckless disregard of the consequences of the conduct and such conduct proximately caused the damages legally recoverable by the plaintiff, the liability for damages shall be joint and several as to any such tortfeasor.
Limits on Attorney Fees 5 §7. Fee may not exceed 50 percent of net judgment.
Periodic Payments No applicable statute.
Patient Compensation or Injury Fund 36 §2211. Health Care Indemnity Fund Task Force
Pre-Trial Alternative Dispute Resolution and Screening Panels No statute provided specific to medical liability/malpractice cases.
Affidavit or Certificate of Merit No statute provided specific to medical liability/malpractice cases.
Expert Witness Standards 63 §1-1708.1I. In determining whether a witness is qualified on the basis of training or experience, the court shall consider whether, at the time the claim arose or at the time the testimony is given, the witness: 1. Is licensed to practice medicine or has other substantial training or experience, in any area of health care relevant to the claim; and 2. Is actively practicing or retired from practicing health care in any area of health care services relevant to the claim.
Medical or Peer Review Panels 63 §1-1709.1 et seq. Peer review bodies
Oregon
Damage Award Limit or Cap No limitations. Limits on noneconomic damages (§31.710) declared unconstitutional by State Supreme Court (see Lakin v. Senco Products, Inc., 329 Or. 62, 987 P.2d 463 (Or. 1999)).
§31.740. Punitive damages may not be awarded against a health practitioner, as defined, if the health practitioner was engaged in conduct regulated by the license, registration or certificate issued by the appropriate governing body and was acting within the scope of practice for which the license, registration or certificate was issued and without malice.
Joint and Several Liability Modified several liability. §31.610. Defendants are proportionally liable according to percentage of fault for damages awarded. If, within one year of final judgment, the damages are uncollectible, then court may reallocate the liability for the uncollected portion of the judgment based upon the other joint tortfeasors' relative degrees of fault.
Limits on Attorney Fees §31.735. In no event may more than 20 percent of the amount awarded as punitive damages be paid to the attorney for the prevailing party.
Periodic Payments No applicable statute.
Patient Compensation or Injury Fund None provided.
Pre-Trial Alternative Dispute Resolution and Screening Panels §31.250. All parties to the action and their attorneys must participate in some form of dispute resolution within 270 days after the action is filed unless: (a) The action is settled or otherwise resolved within 270 days after the action is filed; or (b) All parties to the action agree in writing to waive dispute resolution under this section. (2) Dispute resolution under this section may consist of arbitration, mediation or a judicial settlement conference.
Affidavit or Certificate of Merit No statute provided specific to medical liability/malpractice cases.
Expert Witness Standards No statute provided specific to medical liability/malpractice cases.
Medical or Peer Review Panels §41.675. Inadmissibility of data provided to peer review bodies
Pennsylvania
Damage Award Limit or Cap No limitations. Pennsylvania Constitution Article 3, §18: The General Assembly may enact laws requiring the payment by employers, or employers and employees jointly, of reasonable compensation for injuries to employees arising in the course of their employment, and for occupational diseases of employees, whether or not such injuries or diseases result in death, and regardless of fault of employer or employee, and fixing the basis of ascertainment of such compensation and the maximum and minimum limits thereof, and providing special or general remedies for the collection thereof; but in no other cases shall the General Assembly limit the amount to be recovered for injuries resulting in death, or for injuries to persons or property, and in case of death from such injuries, the right of action shall survive, and the General Assembly shall prescribe for whose benefit such actions shall be prosecuted.
40 §1303.505. Except in cases alleging intentional misconduct, punitive damages against an individual physician shall not exceed 200 percent of the compensatory damages awarded. Punitive damages, when awarded, shall not be less than $100,000 unless a lower verdict amount is returned by the trier of fact. Upon the entry of a verdict including an award of punitive damages, the punitive damages portion of the award shall be allocated as follows: (1) 75 percent shall be paid to the prevailing party; and (2) 25 percent shall be paid to the Medical Care Availability and Reduction of Error Fund.
40 §1303.509. The trier of fact may incorporate into any future medical expense award adjustments to account for reasonably anticipated inflation and medical care improvements as presented by competent evidence.
Joint and Several Liability Several liability. Pa. Cons. Stat. tit. 42, §7102. (1) Where recovery is allowed against more than one person, including actions for strict liability, and where liability is attributed to more than one defendant, each defendant shall be liable for that proportion of the total dollar amount awarded as damages in the ratio of the amount of that defendant's liability to the amount of liability attributed to all defendants and other persons to whom liability is apportioned under subsection (a.2).
(2) Except as set forth in paragraph (3), a defendant's liability shall be several and not joint, and the court shall enter a separate and several judgment in favor of the plaintiff and against each defendant for the apportioned amount of that defendant's liability.
(3) A defendant's liability in any of the following actions shall be joint and several, and the court shall enter a joint and several judgment in favor of the plaintiff and against the defendant for the total dollar amount awarded as damages: (i) Intentional misrepresentation. (ii) An intentional tort. (iii) Where the defendant has been held liable for not less than 60 percent of the total liability apportioned to all parties. (iv) A release or threatened release of a hazardous substance under section 702 of the act of October 18, 1988 (P.L. 756, No. 108), known as the Hazardous Sites Cleanup Act. (v) A civil action in which a defendant has violated section 497 of the act of April 12, 1951 (P.L. 90, No. 21), known as the Liquor Code.
(4) Where a defendant has been held jointly and severally liable under this subsection and discharges by payment more than that defendant's proportionate share of the total liability, that defendant is entitled to recover contribution from defendants who have paid less than their proportionate share. Further, in any case, any defendant may recover from any other person all or a portion of the damages assessed that defendant pursuant to the terms of a contractual agreement.
Limits on Attorney Fees Limits declared unconstitutional by state Supreme Court (see Heller v. Frankston, 475 A.2d 1291 (Pa. 1984)).
Periodic Payments 40 §1303.501 et seq. Future damages for medical and other related expenses shall be paid as periodic payments after payment of the proportionate share of counsel fees and costs based upon the present value of the future damages awarded pursuant to this subsection. Future damages for medical and other related expenses shall not be awarded in periodic payments if the claimant objects and stipulates that the total amount of the future damages for medical and other related expenses, without reduction to present value, does not exceed $100,000.
Patient Compensation or Injury Fund 40 §1303.712. Medical Care Availability and Reduction of Error Fund. Money in the fund shall be used to pay claims against participating health care providers for losses or damages awarded in medical professional liability actions against them in excess of the basic insurance coverage required.
Pre-Trial Alternative Dispute Resolution and Screening Panels 40 §1303.714. Upon the request of a party to a medical professional liability claim within the fund coverage limits, the department may provide for a mediator in instances where multiple carriers disagree on the disposition or settlement of a case. Upon the consent of all parties, the mediation shall be binding. Proceedings conducted and information provided in accordance with this section shall be confidential and shall not be considered public information subject to disclosure under the Right-to-Know Law, or 65 Pa.C.S. Ch. 7 [FN3] (relating to open meetings).
Affidavit or Certificate of Merit Pa. R. Civ. P. 1042.3. A plaintiff must file a certificate of merit that states (1) an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; (2) the claim that the defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional conduct; or (3) expert testimony of an appropriate licensed professional is unnecessary for the prosecution of the claim.
Expert Witness Standards
40 §1303.512. (a) General rule.--No person shall be competent to offer an expert medical opinion in a medical professional liability action against a physician unless that person possesses sufficient education, training, knowledge and experience to provide credible, competent testimony and fulfills the additional qualifications set forth in this section as applicable.
(b) Medical testimony.--An expert testifying on a medical matter, including the standard of care, risks and alternatives, causation and the nature and extent of the injury, must meet the following qualifications: (1) Possess an unrestricted physician's license to practice medicine in any state or the District of Columbia. (2) Be engaged in or retired within the previous five years from active clinical practice or teaching. Provided, however, the court may waive the requirements of this subsection for an expert on a matter other than the standard of care if the court determines that the expert is otherwise competent to testify about medical or scientific issues by virtue of education, training or experience.
(c) Standard of care.--In addition to the requirements set forth in subsections (a) and (b), an expert testifying as to a physician's standard of care also must meet the following qualifications: (1) Be substantially familiar with the applicable standard of care for the specific care at issue as of the time of the alleged breach of the standard of care. (2) Practice in the same subspecialty as the defendant physician or in a subspecialty which has a substantially similar standard of care for the specific care at issue, except as provided in subsection (d) or (e). (3) In the event the defendant physician is certified by an approved board, be board certified by the same or a similar approved board, except as provided in subsection (e).
(d) Care outside specialty.--A court may waive the same subspecialty requirement for an expert testifying on the standard of care for the diagnosis or treatment of a condition if the court determines that: (1) the expert is trained in the diagnosis or treatment of the condition, as applicable; and (2) the defendant physician provided care for that condition and such care was not within the physician's specialty or competence.
(e) Otherwise adequate training, experience and knowledge.--A court may waive the same specialty and board certification requirements for an expert testifying as to a standard of care if the court determines that the expert possesses sufficient training, experience and knowledge to provide the testimony as a result of active involvement in or full-time teaching of medicine in the applicable subspecialty or a related field of medicine within the previous five-year time period.
Medical or Peer Review Panels 63 §425.1 et seq. Peer review protection
Puerto Rico
Damage Award Limit or Cap 32 §3077. Actions for damages for alleged acts of malpractice to the health professionals who work in the areas of obstetrics, orthopedics, general surgery or trauma exclusively at public health institutions of the Commonwealth of Puerto Rico, its dependencies, instrumentalities and/or municipalities, regardless of whether said institutions are being administered or operated by a private entity limited to up to the sum of $75,000. Damages shall not exceed $150,000 when, because of said act or omission, damages are caused to more than one person or when there are several causes of action to which a single prejudiced party is entitled. If according to the conclusions of the court it should arise that the sum of the damages caused to each of the persons exceeds $150,000, the court shall proceed to distribute said sum prorated among the plaintiffs, taking as [basis] the damages suffered by each one.
Joint and Several Liability Joint and several liability. 32 §51.7.
Limits on Attorney Fees 26 §4111. Sliding scale, not to exceed 33 percent of the first $75,000; $24, 500 plus 25 percent of the excess $75,000 of the compensation from $75,001 to $150,000; $43,500 plus 20 percent of the excess$150,000 of the compensation from $150,001 or more. Notwithstanding the above, the court may authorize the charging of contingent fees in these cases up to a maximum of 33 percent of the final product of the judgment, transaction or agreement, if the attorney should request it and can justify it.
4 §742. No attorney shall charge fees of a contingent nature in actions to recover damages in an amount that exceeds, for any reason, 25 percent of the final proceeds of the judgment, compromise or agreement if the client is a minor or mentally disabled, or 33 percent of the final proceeds of the judgment, compromise or agreement if it is any other client. Notwithstanding the foregoing, where clients are minors or mentally disabled, the court may authorize the charge of contingent fees up to 33 percent of the final proceeds of the judgment, compromise or agreement if the attorney so requests, and presents good cause therefor.
Periodic Payments No applicable statute.
Patient Compensation or Injury Fund None provided.
Pre-Trial Alternative Dispute Resolution and Screening Panels 26 §4109. The judge of the Court of First Instance before whom a claim is filed for damages for fault or negligence for medico-hospital professional malpractice, may designate an arbitration panel thirty days after the answer to the complaint is filed, or at any other later time when he/she deems it convenient to expedite the procedures and to facilitate a better understanding of the medical controversies involved. The report of the arbitration panel shall be submitted before the judge who presides the part and shall have the effect that said judge attributes to it in the exercise of his discretion. The report shall be signed by all the members of the arbitration panel, but any of its members may issue a dissident or concurrent opinion in writing, stating the reason therefor.
Affidavit or Certificate of Merit No statute provided specific to medical liability/malpractice cases.
Expert Witness Standards No statute provided specific to medical liability/malpractice cases.
Medical or Peer Review Panels No statute provided specific to medical liability/malpractice cases.
Rhode Island
Damage Award Limit or Cap No applicable statute.
Joint and Several Liability Joint and several liability. §10-6-1 et seq. The term "joint tortfeasors" means two or more persons jointly or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them; provided, however, that a master and servant or principal and agent shall be considered a single tortfeasor.
Limits on Attorney Fees No limitations.
Periodic Payments §9-21-12. In any action to recover damages for personal injury, injury to property, or wrongful death for which a judgment of $150,000 or more is entered, a post-judgment conference shall be held for the purpose of determining the viability of a voluntary agreement for payment of the judgment in periodic installments.
§9-21-13. In any legal action based upon a cause of action arising for personal injury, property damage, or wrongful death in which damages, if liability is proved, are likely to be in excess of $150,000, the parties shall consider the use of periodic payments as means of settlement.
Patient Compensation or Injury Fund None provided.
Pre-Trial Alternative Dispute Resolution and Screening Panels No statute provided specific to medical liability/malpractice cases.
Affidavit or Certificate of Merit No statute provided specific to medical liability/malpractice cases.
Expert Witness Standards §9-19-41. In any legal action based upon a cause of action for personal injury or wrongful death filed against a licensed physician, hospital, clinic, health maintenance organization, professional service corporation providing health care services, dentists, or dental hygienist based on professional negligence, only those persons who by knowledge, skill, experience, training, or education qualify as experts in the field of the alleged malpractice shall be permitted to give expert testimony as to the alleged malpractice.
Medical or Peer Review Panels §5-37.3-7. Medical peer review boards
South Carolina
Damage Award Limit or Cap §15-32-220. Noneconomic damages limited to $350,000 against single health care provider or facility. In actions against more than one facility, provider or combination, the limit of civil liability for noneconomic damages for each health care institution and each health care provider is limited to an amount not to exceed $350,000 for each claimant, and the limit of civil liability for noneconomic damages for all health care institutions and health care providers is limited to an amount not to exceed $1,050,000 for each claimant. Limits increased or decreased annually based on Consumer Price Index. No limits on noneconomic or punitive damages if defendant is grossly negligent, wilful, wanton, or reckless, and such conduct was the proximate cause of the claimant's noneconomic damages, or if the defendant has engaged in fraud or misrepresentation related to the claim, or if the defendant altered or destroyed medical records with the purpose of avoiding a claim or liability to the claimant.
Joint and Several Liability Modified joint and several liability. §15-38-15. Joint and several liability does not apply to any defendant whose conduct is determined to be less than 50 percent of the total fault for the indivisible damages as compared with the total of: (i) the fault of all the defendants; and (ii) the fault (comparative negligence), if any, of plaintiff. A defendant whose conduct is determined to be less than 50 percent of the total fault shall only be liable for that percentage of the indivisible damages determined by the jury or trier of fact.
Limits on Attorney Fees No limitations.
Periodic Payments No applicable statute.
Patient Compensation or Injury Fund §38-79-410 et seq. Patients' Compensation Fund
Pre-Trial Alternative Dispute Resolution and Screening Panels §15-79-120. At any time before a medical malpractice action is brought to trial, the parties shall participate in mediation governed by procedures established in the South Carolina Circuit Court Alternative Dispute Resolution Rules in effect at the time for the State or any portion of the state. Parties may also agree to participate in binding arbitration, nonbinding arbitration, early neutral evaluation, or other forms of alternative dispute resolution.
§15-79-125. Within 90 days and no later than 120 days from the service of the Notice of Intent to File Suit, the parties shall participate in a mediation conference unless an extension for no more than 60 days is granted by the court based upon a finding of good cause. Participation in the prelitigation mediation pursuant to this section does not alter or eliminate any obligation of the parties to participate in alternative dispute resolution after the civil action is initiated. However, there is no requirement for participation in more than one alternative dispute resolution forum following the filing of a summons and complaint to initiate a civil action in the matter.
Affidavit or Certificate of Merit  §15-36-100. The plaintiff must file as part of the complaint an affidavit of an expert witness which must specify at least one negligent act or omission claimed to exist and the factual basis for each claim based on the available evidence at the time of the filing of the affidavit.
§15-79-125. The plaintiff shall contemporaneously file a Notice of Intent to File Suit and an affidavit of an expert witness, subject to the affidavit requirements established in §15-36-100, in a county in which venue would be proper for filing or initiating the civil action.
Expert Witness Standards No statute provided specific to medical liability/malpractice cases.
Medical or Peer Review Panels §40-71-10 et seq. Liability of members of professional committees
South Dakota
Damage Award Limit or Cap §21-3-11. The total general damages which may be awarded may not exceed the sum of $500,000. No limitation on the amount of special damages which may be awarded.
§21-3-2. Punitive damages in discretion of jury.
Joint and Several Liability Modified joint and several liability. §15-8-15.1. If the court enters judgment against any party liable on the basis of joint and several liability, any party who is allocated less than 50 percent of the total fault allocated to all the parties may not be jointly liable for more than twice the percentage of fault allocated to that party.
Limits on Attorney Fees No limitations.
Periodic Payments §21-3A-1 et seq. A party to the action must elect within 120 days after service of the complaint. In all cases covered by this chapter in which future damages are payable in periodic installments, the liability for payment of any installments for medical or other costs of health care or noneconomic loss not yet due at the death of a person entitled to receive these benefits terminates upon the death of that person. The liability for payment of any other installments or portions thereof not yet due at the death of the person entitled to receive them likewise terminates except as provided herein.
Patient Compensation or Injury Fund None provided.
Pre-Trial Alternative Dispute Resolution and Screening Panels §21-25B-1 et seq. Voluntary agreements pursuant to §21-25A-1 between hospitals or physicians and patients relating to services provided to the patient may, by their terms, provide for past and future services by and between the parties to the agreement; provided, however, that any party to such an agreement may terminate it as to future services by giving written notice to all other parties thereto, and such termination shall in no way affect or alter the arbitration of controversies arising as to services rendered prior to the giving of such notice.
§21-25B-3. The arbitration agreement between hospitals or physicians and patients shall contain the following provision in 12-point boldface type immediately above the space for signature of the parties: The agreement to arbitrate is not a prerequisite to health care or treatment. By signing this contract you are agreeing to have any issue of medical malpractice decided by neutral arbitration and you are giving up your right to a jury or court trial.
§21-25B-21. Hearings before the health care services arbitration panel shall be in two stages. The first stage shall be a hearing to determine whether or not there is any liability on behalf of the defendant or defendants. If the panel does find liability, there shall be a 30-day waiting period during which the parties may agree as to damages. At the end of 30 days, if the damage question has not been settled, the panel shall reconvene to determine the amount of damages, if any, the claimant shall be awarded.
Affidavit or Certificate of Merit No statute provided specific to medical liability/malpractice cases.
Expert Witness Standards No statute provided specific to medical liability/malpractice cases.
Medical or Peer Review Panels §36-4-25 et seq. Immunity and confidentiality of professional committees
Tennessee
Damage Award Limit or Cap §29-39-101 et seq. (2011 Public Chapter 510). (a) ln a civil action, each injured plaintiff may be awarded: (1) Compensation for economic damages suffered by each injured plaintiff; and (2) Compensation for any noneconomic damages suffered by each injured plaintiff not to exceed $750,000 for all injuries and occurrences that were or could have been asserted, regardless of whether the action is based on a single act or omission or a series of acts or omissions that allegedly caused the injuries or death.
(c) lf an injury or loss is catastrophic in nature, as defined, the $750,000 amount limiting noneconomic damages, as set forth in subsections (a)(2) through (b) is increased to, but the amount of damages awarded as noneconomic damages shall not exceed, $1 million.
(e) All noneconomic damages awarded to each injured plaintiff, including damages for pain and suffering, as well as any claims of a spouse or children for loss of consortium or any derivative claim for noneconomic damages, shall not exceed in the aggregate a total of $750,000, unless subdivision (c) applies, in which case the aggregate amount shall not exceed $1 million.
(h) The limitation on the amount of noneconomic damages imposed by subsections (a)(2) through (e) shall not apply to personal injury and wrongful death actions: (1) lf the defendant had a specific intent to inflict serious physical injury, and the defendant's intentional conduct did, in fact, injure the plaintiff; (2) lf the defendant intentionally falsified, destroyed or concealed records containing material evidence with the purpose of wrongfully evading liability in the case at issue, provided, however, that this subsection does not apply to the good faith withholding of records pursuant to privileges and other laws applicable to discovery, nor does it apply to the management of records in the normal course of business or in compliance with the defendant's document retention policy or state or federal regulations; or (3) lf the defendant was under the influence of alcohol, drugs or any other intoxicant or stimulant, resulting in his or her judgment being substantially impaired, and causing the injuries or death.
§29-39-104 (2011 Public Chapter 510). Punitive or exemplary damages shall not exceed an amount equal to the greater of: (A) Two times the total amount of compensatory damages awarded; or (B) $500,000.
(7) The limitation on the amount of punitive damages imposed by subdivision (a)(5) shall not apply to actions brought for damages or an injury: (A) lf the defendant had a specific intent to inflict serious physical injury, and the defendant's intentional conduct did, in fact, injure the plaintiff; (B) lf the defendant intentionally falsified, destroyed or concealed records containing material evidence with the purpose of wrongfully evading liability in the case at issue, provided, however, that this subsection does not apply to the good faith withholding of records pursuant to privileges and other laws applicable to discovery, nor does it apply to the management of records in the normal course of business or in compliance with the defendant's document retention policy or state or federal regulations; or (C) lf the defendant was under the influence of alcohol, drugs or any other intoxicant or stimulant, resulting in his or her judgment being substantially impaired, and causing the injuries or death. For purposes of this subsection, a defendant shall not be deemed to be under the influence of drugs or any other intoxicant or stimulant. if the defendant was using lawfully prescribed drugs administered in accordance with a prescription or over-the-counter drugs in accordance with the written instructions of the manufacturer.
Joint and Several Liability Several liability. See McIntyre v. Ballentine 833 S.W.2d 52 (Tenn. 1992).
Limits on Attorney Fees §29.26.120. Contingent fees shall be awarded in an amount to be determined by the court on the basis of time and effort devoted to the litigation by the claimant's attorney, complexity of the claim and other pertinent matters in connection therewith, not to exceed 33-1/3 percent of all damages awarded to the claimant.
Periodic Payments No applicable statute.
Patient Compensation or Injury Fund None provided.
Pre-Trial Alternative Dispute Resolution and Screening Panels No statute provided specific to medical liability/malpractice cases.
Affidavit or Certificate of Merit §29-26-122. The plaintiff shall file a certificate of good faith stating that: (1) The plaintiff or plaintiff's counsel has consulted with one or more experts who have provided a signed written statement confirming that upon information and belief they: (A) Are competent under §29-26-115 to express an opinion or opinions in the case; and (B) Believe, based on the information available from the medical records concerning the care and treatment of the plaintiff for the incident or incidents at issue, that there is a good faith basis to maintain the action consistent with the requirements of §29-26-115; or (2) The plaintiff or plaintiff's counsel has consulted with one or more experts who have provided a signed written statement confirming that upon information and belief they: (A) Are competent under §29-26-115 to express an opinion or opinions in the case; and (B) Believe, based on the information available from the medical records reviewed concerning the care and treatment of the plaintiff for the incident or incidents at issue and, as appropriate, information from the plaintiff or others with knowledge of the incident or incidents at issue, that there are facts material to the resolution of the case that cannot be reasonably ascertained from the medical records or information reasonably available to the plaintiff; and that, despite the absence of this information, there is a good faith basis for maintaining the action as to each defendant consistent with the requirements of §29-26-115.
Expert Witness Standards §29-26-115. No person in a health care profession requiring licensure under the laws of this state shall be competent to testify in any court of law to establish the facts required to be established by subsection (a), unless the person was licensed to practice in the state or a contiguous bordering state a profession or specialty which would make the person's expert testimony relevant to the issues in the case and had practiced this profession or specialty in one (1) of these states during the year preceding the date that the alleged injury or wrongful act occurred.
Medical or Peer Review Panels §63-6-219. Peer Review Law
§63-9-114. Confidentiality of peer review committees made up of osteopathic physicians
Texas
Damage Award Limit or Cap Civil Practice & Remedies §74.301. $250,000 limit per claimant for noneconomic damages against physician or provider. §250,000 limit per claimant against single institution. For claims against multiple institutions, the limit of civil liability for noneconomic damages for each health care institution, inclusive of all persons and entities for which vicarious liability theories may apply, shall be limited to an amount not to exceed $250,000 for each claimant and the limit of civil liability for noneconomic damages for all health care institutions, inclusive of all persons and entities for which vicarious liability theories may apply, shall be limited to an amount not to exceed $500,000 for each claimant.
Civil Practice & Remedies §74.303. In wrongful death claims against physician, the limit of civil liability for all damages, including exemplary damages, shall be limited to an amount not to exceed $500,000 for each claimant. The limitation will be adjusted by the Consumer Price Index.
Joint and Several Liability Modified several liability. Civil Practice & Remedies §33.013. Defendants are proportionally liable according to percentage of fault for damages awarded, unless the percentage of responsibility attributed to the defendant with respect to a cause of action is greater than 50 percent.
Limits on Attorney Fees No limitations.
Periodic Payments Civil Practice & Remedies §74.501 et seq. If the award for future damages equals or exceeds $100,000, at the request of a defendant physician or health care provider or claimant, the court shall order that medical, health care, or custodial services awarded in a health care liability claim be paid in whole or in part in periodic payments rather than by a lump-sum payment. At the request of a defendant physician or health care provider or claimant, the court may order that future damages other than medical, health care, or custodial services awarded in a health care liability claim be paid in whole or in part in periodic payments rather than by a lump sum payment. On the death of the recipient, money damages awarded for loss of future earnings continue to be paid to the estate of the recipient of the award without reduction. Periodic payments, other than future loss of earnings, terminate on the death of the recipient. If the recipient of periodic payments dies before all payments required by the judgment are paid, the court may modify the judgment to award and apportion the unpaid damages for future loss of earnings in an appropriate manner. Following the satisfaction or termination of any obligations specified in the judgment for periodic payments, any obligation of the defendant physician or health care provider to make further payments ends and any security given reverts to the defendant.
Patient Compensation or Injury Fund None provided.
Pre-Trial Alternative Dispute Resolution and Screening Panels Civil Practice & Remedies §74.451. No physician, professional association of physicians, or other health care provider shall request or require a patient or prospective patient to execute an agreement to arbitrate a health care liability claim unless the form of agreement delivered to the patient contains a written notice as specified.
Affidavit or Certificate of Merit Civil Practice & Remedies §74.351. In a health care liability claim, a claimant shall serve on each party one or more expert reports, with a curriculum vitae of each expert listed in the report for each physician or health care provider against whom a liability claim is asserted, the expert report means a written report by an expert that provides a fair summary of the expert's opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed.
Expert Witness Standards Civil Practice & Remedies §74.401. In a suit involving a health care liability claim against a physician for injury to or death of a patient, a person may qualify as an expert witness on the issue of whether the physician departed from accepted standards of medical care only if the person is a physician who: (1) is practicing medicine at the time such testimony is given or was practicing medicine at the time the claim arose; (2) has knowledge of accepted standards of medical care for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim; and (3) is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of medical care. For the purpose of this section, "practicing medicine" or "medical practice" includes, but is not limited to, training residents or students at an accredited school of medicine or osteopathy or serving as a consulting physician to other physicians who provide direct patient care, upon the request of such other physicians. (c) In determining whether a witness is qualified on the basis of training or experience, the court shall consider whether, at the time the claim arose or at the time the testimony is given, the witness: (1) is board certified or has other substantial training or experience in an area of medical practice relevant to the claim; and (2) is actively practicing medicine in rendering medical care services relevant to the claim.
Civil Practice & Remedies §74.402. In a suit involving a health care liability claim against a health care provider, a person may qualify as an expert witness on the issue of whether the health care provider departed from accepted standards of care only if the person: (1) is practicing health care in a field of practice that involves the same type of care or treatment as that delivered by the defendant health care provider, if the defendant health care provider is an individual, at the time the testimony is given or was practicing that type of health care at the time the claim arose; (2) has knowledge of accepted standards of care for health care providers for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim; and (3) is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of health care. (c) In determining whether a witness is qualified on the basis of training or experience, the court shall consider whether, at the time the claim arose or at the time the testimony is given, the witness: (1) is certified by a licensing agency of one or more states of the United States or a national professional certifying agency, or has other substantial training or experience, in the area of health care relevant to the claim; and (2) is actively practicing health care in rendering health care services relevant to the claim.
Civil Practice & Remedies §74.403. (a) Except as provided by Subsections (b) and (c), in a suit involving a health care liability claim against a physician or health care provider, a person may qualify as an expert witness on the issue of the causal relationship between the alleged departure from accepted standards of care and the injury, harm, or damages claimed only if the person is a physician and is otherwise qualified to render opinions on that causal relationship under the Texas Rules of Evidence. (b) In a suit involving a health care liability claim against a dentist, a person may qualify as an expert witness on the issue of the causal relationship between the alleged departure from accepted standards of care and the injury, harm, or damages claimed if the person is a dentist or physician and is otherwise qualified to render opinions on that causal relationship under the Texas Rules of Evidence. (c) In a suit involving a health care liability claim against a podiatrist, a person may qualify as an expert witness on the issue of the causal relationship between the alleged departure from accepted standards of care and the injury, harm, or damages claimed if the person is a podiatrist or physician and is otherwise qualified to render opinions on that causal relationship under the Texas Rules of Evidence.
Medical or Peer Review Panels Health & Safety Code §161.031 et seq. Medical committees
Occupations Code §160.001 et seq. Medical peer review
Utah
Damage Award Limit or Cap §78B-3-410. For a cause of action arising on or after July 1, 2002, and before May 15, 2010 the $400,000 limitation described in Subsection (1)(b) shall be adjusted for inflation as provided in Subsection (2); and for a cause of action arising on or after May 15, 2010, $450,000.
Beginning July 1, 2002 and each July 1 thereafter until July 1, 2009, the limit for damages under Subsection (1)(c) shall be adjusted for inflation by the state treasurer. By July 15 of each year until July 1, 2009, the state treasurer shall: (i) certify the inflation-adjusted limit calculated under this Subsection (2); and (ii) inform the Administrative Office of the Courts of the certified limit. The amount resulting from Subsection (2)(a) shall: (i) be rounded to the nearest $10,000; and (ii) apply to a cause of action arising on or after the date the annual adjustment is made.
The limit under Subsection (1) does not apply to awards of punitive damages.
Joint and Several Liability Several liability. §78B-5-820. Defendants are proportionally liable according to percentage of fault for damages awarded.
Limits on Attorney Fees §78B-3-411. An attorney may not collect a contingent fee for representing a client seeking damages in connection with or arising out of personal injury or wrongful death caused by the negligence of another which exceeds 33-1/3 percent of the amount recovered.
Periodic Payments §78B-3-414. If the award for future damages equals or exceeds $100,000, less amounts payable for attorney fees and other costs which are due at the time of judgment, the court shall, at the request of any party, order that future damages shall be paid by periodic payments rather than by a lump sum payment. The obligation to make periodic payments for all future damages, other than damages for loss of future earnings, shall cease upon the death of the judgment creditor. Damages awarded for loss of future earnings may not be reduced or payments terminated by reason of the death of the judgment creditor, but shall be paid to persons to whom the judgment creditor owed a duty of support, as provided by law, immediately prior to his death. In that case the court which rendered the original judgment may, upon petition of any party in interest, modify the judgment to award and apportion the unpaid future damages in accordance with this section.
Patient Compensation or Injury Fund None provided.
Pre-Trial Alternative Dispute Resolution and Screening Panels §78B-3-416 et seq. The party initiating a medical liability claim shall request a prelitigation panel review within 60 days after the service of a statutory notice of intent to commence action §78B-3-412. The proceedings are informal and nonbinding.
§78B-3-418. The panel shall render its opinion in writing not later than 30 days after the end of the proceedings. The panel shall determine on the basis of the evidence whether each claim against each health care provider has merit or has no merit and, if meritorious, whether the conduct complained of resulted in harm to the claimant. There is no judicial or other review or appeal of the panel's decision or recommendations.
The division shall issue a certificate of compliance to the claimant, for each respondent named in the intent to file a claim under this part, if: (a) for a named respondent, the panel issues an opinion of merit under Subsections (2)(a)(i) and (ii); (b) for a named respondent, the claimant files an affidavit of merit in accordance with §78B-3-423 if the opinion under Subsection (1)(a) is non-meritorious under either Subsection (2)(a)(i) or (ii); (c) the claimant has complied with the provisions of §78B-3-416(3)(c) and (d); or (d) the parties submitted a stipulation under §78B-3-416(3)(d).
§78B-3-419. Evidence of the proceedings conducted by the medical review panel and its results, opinions, findings, and determinations are not admissible as evidence in an action subsequently brought by the claimant in a court of competent jurisdiction. No panelist may be compelled to testify in a civil action subsequently filed with regard to the subject matter of the panel's review.
§78B-3-420. Upon written agreement by all parties, the proceeding may be considered a binding arbitration hearing and proceed under Title 78B, Chapter 11, Utah Uniform Arbitration Act, except for the selection of the panel, which is done as set forth in §78B-3-416(4).
Affidavit or Certificate of Merit §78B-3-423. Before a claimant may receive a certificate of compliance under §§78B-3-416 and 78B-3-418, a claimant shall file an affidavit of merit under this section. The affidavit of merit shall: (a) be executed by the claimant's attorney or the claimant if the claimant is proceeding pro se, stating that the affiant has consulted with and reviewed the facts of the case with a health care provider who has determined after a review of the medical record and other relevant material involved in the particular action that there is a reasonable and meritorious cause for the filing of a medical liability action; and (b) include an affidavit signed by a health care provider who meets the requirements of Subsection (3), which states that in the health care provider's opinion: (i) there are reasonable grounds to believe that the applicable standard of care was breached; (ii) the breach was a proximate cause of the injury claimed in the notice of intent to commence action; and (iii) the reasons for the health care provider's opinion. The statement required in Subsection (2)(b)(i) shall be waived if the claimant received an opinion that there was a breach of the applicable standard of care under §78B-3-418(2)(a)(i).
Expert Witness Standards No statute provided specific to medical liability/malpractice cases.
Medical or Peer Review Panels §58-13-5. Liability arising from participation in a review of a health care provider's professional ethics, medical competence, moral turpitude, or substance abuse.
Vermont
Damage Award Limit or Cap No applicable statute.
Joint and Several Liability Several liability. 12 §1036. Where recovery is allowed against more than one defendant, each defendant shall be liable for that proportion of the total dollar amount awarded as damages in the ratio of the amount of his causal negligence to the amount of causal negligence attributed to all defendants against whom recovery is allowed.
Limits on Attorney Fees No limitations.
Periodic Payments No applicable statute.
Patient Compensation or Injury Fund None provided.
Pre-Trial Alternative Dispute Resolution and Screening Panels 12 §7001 et seq. Parties may agree to arbitration proceedings.
12 §7004. The arbitration panel shall file a written decision with the court administrator. The decision shall be by at least a majority vote. Any member of said panel may file a written concurring or dissenting opinion giving his reasons therefor.
12 §7005. The superior court, upon application by any party, shall issue a judgment order in accordance with the decision of the arbitration panel and said judgment order shall have the same effect as any other judgment order issued by the superior court. Appeals from the judgment order issued pursuant to subsection (a) of this section shall be to the supreme court, in accordance with the Vermont Rules of Appellate Procedure.
Affidavit or Certificate of Merit No statute provided specific to medical liability/malpractice cases.
Expert Witness Standards No statute provided specific to medical liability/malpractice cases.
Medical or Peer Review Panels 26 §1441 et seq. Peer review committees
Virginia
Damage Award Limit or Cap §8.01-581.15. In any verdict returned against a health care provider in an action for malpractice where the act or acts of malpractice occurred on or after August 1, 1999, which is tried by a jury or in any judgment entered against a health care provider in such an action which is tried without a jury, the total amount recoverable for any injury to, or death of, a patient shall not exceed the following, corresponding amount:
August 1, 1999, through June 30, 2000      $1.50 million
July 1, 2000, through June 30, 2001        $1.55 million
July 1, 2001, through June 30, 2002        $1.60 million
July 1, 2002, through June 30, 2003        $1.65 million
July 1, 2003, through June 30, 2004        $1.70 million
July 1, 2004, through June 30, 2005        $1.75 million
July 1, 2005, through June 30, 2006        $1.80 million
July 1, 2006, through June 30, 2007        $1.85 million
July 1, 2007, through June 30, 2008        $1.925 million
July 1, 2008, through June 30, 2012        $2.00 million
July 1, 2012, through June 30, 2013        $2.05 million
July 1, 2013, through June 30, 2014        $2.10 million
July 1, 2014, through June 30, 2015        $2.15 million
July 1, 2015, through June 30, 2016        $2.20 million
July 1, 2016, through June 30, 2017        $2.25 million
July 1, 2017, through June 30, 2018        $2.30 million
July 1, 2018, through June 30, 2019        $2.35 million
July 1, 2019, through June 30, 2020        $2.40 million
July 1, 2020, through June 30, 2021        $2.45 million
July 1, 2021, through June 30, 2022        $2.50 million
July 1, 2022, through June 30, 2023        $2.55 million
July 1, 2023, through June 30, 2024        $2.60 million
July 1, 2024, through June 30, 2025        $2.65 million
July 1, 2025, through June 30, 2026        $2.70 million
July 1, 2026, through June 30, 2027        $2.75 million
July 1, 2027, through June 30, 2028        $2.80 million
July 1, 2028, through June 30, 2029        $2.85 million
July 1, 2029, through June 30, 2030        $2.90 million
July 1, 2030, through June 30, 2031        $2.95 million
In any verdict returned against a health care provider in an action for malpractice where the act or acts of malpractice occurred on or after July 1, 2031, which is tried by a jury or in any judgment entered against a health care provider in such an action which is tried without a jury, the total amount recoverable for any injury to, or death of, a patient shall not exceed $3 million. Each annual increase shall apply to the act or acts of malpractice occurring on or after the effective date of the increase.
Joint and Several Liability Joint and several liability. §8.1-443. A judgment against one of several joint wrongdoers shall not bar the prosecution of an action against any or all the others, but the injured party may bring separate actions against the wrongdoers and proceed to judgment in each, or, if sued jointly, he may proceed to judgment against them successively until judgment has been rendered against, or the cause has been otherwise disposed of as to, all of the defendants, and no bar shall arise as to any of them by reason of a judgment against another, or others, until the judgment has been satisfied.
Limits on Attorney Fees No limitations.
Periodic Payments §8.01-424. A court must review any settlement agreement on behalf of a disabled person involving periodic payments and must be secured by a bond or insurance.
Patient Compensation or Injury Fund §38.2-5000 et seq. Virginia Birth-Related Neurological Injury Compensation Program
Pre-Trial Alternative Dispute Resolution and Screening Panels §8.01-581.1 et seq. Any party may request a review by a medical malpractice review panel.
§8.01-581.7. The panel shall have the duty, after joint deliberation, to render one or more of the following opinions: 1. The evidence does not support a conclusion that the health care provider failed to comply with the appropriate standard of care; 2. The evidence supports a conclusion that the health care provider failed to comply with the appropriate standard of care and that such failure is a proximate cause in the alleged damages; 3. The evidence supports a conclusion that the health care provider failed to comply with the appropriate standard of care and that such failure is not a proximate cause in the alleged damages; or 4. The evidence indicates that there is a material issue of fact, not requiring an expert opinion, bearing on liability for consideration by a court or jury. The opinion shall be in writing and shall be signed by all panelists who agree therewith. Any member of the panel may note his dissent.
§8.01-581.8. An opinion of the medical review panel shall be admissible as evidence in the action brought by the plaintiff, but shall not be conclusive. Either party shall have the right to call, at his cost, any member of the panel, except the judge, as a witness. If called, each witness shall be required to appear and testify.
§8.01-581.12. The parties may agree to submit to binding arbitration.
Affidavit or Certificate of Merit §8.01-20.1. Every motion for judgment, counter claim, or third party claim in a medical malpractice action, at the time the plaintiff requests service of process upon a defendant, or requests a defendant to accept service of process, shall be deemed a certification that the plaintiff has obtained from an expert witness whom the plaintiff reasonably believes would qualify as an expert witness pursuant to subsection A of §8.01-581.20 a written opinion signed by the expert witness that, based upon a reasonable understanding of the facts, the defendant for whom service of process has been requested deviated from the applicable standard of care and the deviation was a proximate cause of the injuries claimed. This certification is not necessary if the plaintiff, in good faith, alleges a medical malpractice action that asserts a theory of liability where expert testimony is unnecessary because the alleged act of negligence clearly lies within the range of the jury's common knowledge and experience.
§8.01-50.1. Every motion for judgment, counter claim, or third party claim in any action pursuant to §8.01-50 for wrongful death against a health care provider, at the time the plaintiff requests service of process upon a defendant, or requests a defendant to accept service of process, shall be deemed a certification that the plaintiff has obtained from an expert witness whom the plaintiff reasonably believes would qualify as an expert witness pursuant to subsection A of §8.01-581.20 a written opinion signed by the expert witness that, based upon a reasonable understanding of the facts, the defendant for whom service of process has been requested deviated from the applicable standard of care and the deviation was a proximate cause of the injuries claimed. This certification is not necessary if the plaintiff, in good faith, alleges in his wrongful death action a medical malpractice theory of liability where expert testimony is unnecessary because the alleged act of negligence clearly lies within the range of the jury's common knowledge and experience.
§16.1-83.1. Every warrant in debt, counter claim, or third party claim in a medical malpractice action, at the time the plaintiff requests service of process upon a defendant, or requests a defendant to accept service of process, shall be deemed a certification that the plaintiff has obtained from an expert whom the plaintiff reasonably believes would qualify as an expert witness pursuant to subsection A of §8.01-581.20 a written opinion signed by the expert witness that, based upon a reasonable understanding of the facts, the defendant for whom service of process has been requested deviated from the applicable standard of care and the deviation was a proximate cause of the injuries claimed. This certification is not necessary if the plaintiff, in good faith, alleges a medical malpractice action that asserts a theory of liability where expert testimony is unnecessary because the alleged act of negligence clearly lies within the range of the jury's common knowledge and experience.
Expert Witness Standards §8.01-581.20. Any physician or nurse who is licensed to practice in Virginia shall be presumed to know the statewide standard of care in the specialty or field of medicine in which he is qualified and certified. This presumption shall also apply to any physician who is licensed in some other state of the United States and meets the educational and examination requirements for licensure in Virginia. This presumption shall also apply to any nurse licensed by a state participating in the Nurse Licensure Compact. An expert witness who is familiar with the statewide standard of care shall not have his testimony excluded on the ground that he does not practice in this Commonwealth. A witness shall be qualified to testify as an expert on the standard of care if he demonstrates expert knowledge of the standards of the defendant's specialty and of what conduct conforms or fails to conform to those standards and if he has had active clinical practice in either the defendant's specialty or a related field of medicine within one year of the date of the alleged act or omission forming the basis of the action.
Medical or Peer Review Panels §8.01-581.16 et seq. Immunity and privileges for review committees
Virgin Islands Damage Award Limit or Cap 27 §166b. The total amount recoverable for any injury of a patient may not exceed $250,000 per occurrence. Only economic damages and noneconomic damages may be awarded. The total amount awarded for noneconomic damages for any injury to a patient as a result of a single occurrence may not exceed $75,000. No punitive damages may be awarded.
Joint and Several Liability Joint and several liability. 5 §491.
Limits on Attorney Fees 5 §541. The measure and mode of compensation of attorneys shall be left to the agreement, express or implied, of the parties.
Periodic Payments No applicable statute.
Patient Compensation or Injury Fund None provided.
Pre-Trial Alternative Dispute Resolution and Screening Panels 27 §166i. No action against a health care provider may be commenced in court before the claimant's proposed complaint has been filed with the Medical Malpractice Action Review Committee, the purpose of which shall be to arrange for expert review of all malpractice claims before actions based upon such claims are commenced in court. An expert opinion obtained by the Committee pursuant to this section shall be available to either party in an action subsequently brought by the plaintiff in a court in this territory. However, if either party wishes to call the expert as a witness, the party must do so at his own cost.
Affidavit or Certificate of Merit No statute provided specific to medical liability/malpractice cases.
Expert Witness Standards No statute provided specific to medical liability/malpractice cases.
Medical or Peer Review Panels 19 §248. Liability and confidentiality provisions for peer review committee
Washington
Damage Award Limit or Cap No limitations. Limits on noneconomic damages (§4.56.250) declared unconstitutional by State Supreme Court (see Sofie v. Fireboard Corp., 112 Wash. 2d 636, 771 P.2d 711 (1989)).
Joint and Several Liability Modified several liability. §4.22.070. The liability of each defendant shall be several only and shall not be joint except: (a) A party shall be responsible for the fault of another person or for payment of the proportionate share of another party where both were acting in concert or when a person was acting as an agent or servant of the party. (b) If the trier of fact determines that the claimant or party suffering bodily injury or incurring property damages was not at fault, the defendants against whom judgment is entered shall be jointly and severally liable for the sum of their proportionate shares of the claimant(s) total damages.
Limits on Attorney Fees §7.70.070. Court to determine reasonableness of each party's attorney fees.
Periodic Payments §4.56.260. If the award for future economic damages is at least $100,000, the court or arbitrator shall, at the request of a party, enter a judgment which provides for the periodic payment in whole or in part of the future economic damages. Upon the death of the judgment creditor, the court which rendered the original judgment may, upon petition of any party in interest, modify the judgment to award and apportion the unpaid future damages. Money damages awarded for loss of future earnings shall not be reduced or payments terminated by reason of the death of the judgment creditor.
Patient Compensation or Injury Fund None provided.
Pre-Trial Alternative Dispute Resolution and Screening Panels §7.70.100 et seq. All causes of action, whether based in tort, contract, or otherwise, for damages arising from injury occurring as a result of health care provided after July 1, 1993, shall be subject to mandatory mediation prior to trial, unless the parties have previously agreed to arbitration.
§7.70.130. A cause of action that has been mediated as provided in RCW 7.70.100 shall be exempt from any superior court civil rules mandating arbitration of civil actions or participation in settlement conferences prior to trial.
§7.70A.010 et seq. Parties may elect to submit the dispute to arbitration.
§7.70A.060. The arbitrator shall issue a decision in writing and signed by the arbitrator within 14 days after the completion of the arbitration hearing. The arbitrator may not make an award of damages under this chapter that exceeds $1 million for both economic and noneconomic damages. The arbitrator may not make an award of damages under this chapter under a theory of ostensible agency liability.
§7.70A.080. There is no right to a trial de novo on an appeal of the arbitrator's decision. An appeal of the arbitrator's decision is limited to the bases for appeal provided in RCW 7.04A.230(1) (a) through (d) and7.04A.240 , or equivalent provisions in a successor statute.
Affidavit or Certificate of Merit §7.70.150 declared unconstitutional by state supreme court (see Putman v. Wenatchee Valley Medical Center, (WA Docket #80888-1, September 19, 2009).
Expert Witness Standards No statute provided specific to medical liability/malpractice cases.
Medical or Peer Review Panels §70.41.200. Quality improvement program
West Virginia
Damage Award Limit or Cap §55-7B-8. $250,000 limit for noneconomic damages per occurrence. Plaintiff may recover compensatory damages for noneconomic loss in excess of the limitation above, but not in excess of $500,000 for each occurrence, where the damages for noneconomic losses suffered by the plaintiff were for: (1) Wrongful death; (2) permanent and substantial physical deformity, loss of use of a limb or loss of a bodily organ system; or (3) permanent physical or mental functional injury that permanently prevents the injured person from being able to independently care for himself or herself and perform life sustaining activities. Limits are adjusted annually for inflation by the Consumer Price Index.
Joint and Several Liability Several liability. §55-7B-9. If the trier of fact renders a verdict for the plaintiff, the court shall enter judgment of several, but not joint, liability against each defendant in accordance with the percentage of fault attributed to the defendant by the trier of fact.
Limits on Attorney Fees No limitations.
Periodic Payments No applicable statute.
Patient Compensation or Injury Fund §29-12C-1 et seq. Patient injury compensation fund study board
§29-12D-1 et seq. West Virginia patient injury compensation fund
Pre-Trial Alternative Dispute Resolution and Screening Panels §55-7B-6. A health care provider may make a written demand for pre-litigation mediation. Notwithstanding any other provision of this code, the results of any mediation conducted pursuant to the provisions of this section are confidential and are not admissible as evidence in any court proceeding unless the court, upon hearing, determines that failure to disclose the contents would cause a miscarriage of justice.
Affidavit or Certificate of Merit §55-7B-6. Prior to filing a claim, the claimant must serve notice and a screening certificate of merit that shall be executed under oath by a health care provider qualified as an expert under the West Virginia rules of evidence and shall state with particularity: (1) The expert's familiarity with the applicable standard of care in issue; (2) the expert's qualifications; (3) the expert's opinion as to how the applicable standard of care was breached; and (4) the expert's opinion as to how the breach of the applicable standard of care resulted in injury or death. If a claimant believes that no screening certificate of merit is necessary because the cause of action is based upon a well-established legal theory of liability which does not require expert testimony supporting a breach of the applicable standard of care, the claimant, shall file a statement specifically setting forth the basis of the alleged liability of the health care provider in lieu of a screening certificate of merit.
Expert Witness Standards §55-7B-7. Expert testimony may only be admitted in evidence if the foundation therefor is first laid establishing that: (1) The opinion is actually held by the expert witness; (2) the opinion can be testified to with reasonable medical probability; (3) the expert witness possesses professional knowledge and expertise coupled with knowledge of the applicable standard of care to which his or her expert opinion testimony is addressed; (4) the expert witness maintains a current license to practice medicine with the appropriate licensing authority of any state of the United States: Provided, That the expert witness' license has not been revoked or suspended in the past year in any state; and (5) the expert witness is engaged or qualified in a medical field in which the practitioner has experience and/or training in diagnosing or treating injuries or conditions similar to those of the patient. If the witness meets all of these qualifications and devoted, at the time of the medical injury, 60 percent of his or her professional time annually to the active clinical practice in his or her medical field or specialty, or to teaching in his or her medical field or specialty in an accredited university, there shall be a rebuttable presumption that the witness is qualified as an expert.
Medical or Peer Review Panels §30-3C-1 et seq. Health care peer review organization protection
Wisconsin
Damage Award Limit or Cap §893.55. The limit on total noneconomic damages for each occurrence on or after April 6, 2006, shall be $750,000.
§895.043. Punitive damages received by the plaintiff may not exceed twice the amount of any compensatory damages recovered by the plaintiff or $200,000, whichever is greater.
Joint and Several Liability Modified several liability. §895.045. The liability of each person found to be causally negligent whose percentage of causal negligence is less than 51 percent is limited to the percentage of the total causal negligence attributed to that person. A person found to be causally negligent whose percentage of causal negligence is 51 percent or more shall be jointly and severally liable for the damages allowed. If two or more parties act in accordance with a common scheme or plan, those parties are jointly and severally liable for all damages resulting from that action, except as provided in s. 895.043 (5)—The rule of joint and several liability does not apply to punitive damages.
Limits on Attorney Fees §655.013. Sliding scale, not to exceed (a) Except as provided in par. (b), 33-1/3 percent of the first $1 million recovered. (b) 25 percent of the first $1 million recovered if liability is stipulated within 180 days after the date of filing of the original complaint and not later than 60 days before the first day of trial. (c) 20 percent of any amount in excess of $1 million recovered.
Periodic Payments §655.015. If an award or judgment provides for future medical expense payments in excess of $100,000, that portion of future medical expense payments in excess of an amount equal to $100,000 plus an amount sufficient to pay the costs of collection attributable to the future medical expense payments, including attorney fees reduced to present value, shall be paid into the fund. The commissioner shall develop by rule a system for managing and disbursing those moneys through payments for these expenses, which shall include a provision for the creation of a separate accounting for each claimant’s payments and for crediting each claimant’s account with a proportionate share of any interest earned by the fund, based on that account’s proportionate share of the fund. The commissioner shall promulgate a rule specifying the criteria that shall be used to determine the medical expenses related to the settlement or judgment, taking into consideration developments in the provision of health care. The payments shall be made under the system until either the account is exhausted or the patient dies.
Patient Compensation or Injury Fund §655.27 and 655.275. Injured Patients and Families Compensation Fund Health care providers required to pay into fund annually.
Pre-Trial Alternative Dispute Resolution and Screening Panels §655.42 et seq. The claimant may request mediation.
§904.085. No oral or written communication relating to a dispute in mediation made or presented in mediation by the mediator or a party is admissible in evidence or subject to discovery or compulsory process in any judicial or administrative proceeding except as specified.
Affidavit or Certificate of Merit No statute provided specific to medical liability/malpractice cases.
Expert Witness Standards No statute provided specific to medical liability/malpractice cases.
Medical or Peer Review Panels §146.37 et seq. Health care services review
Wyoming
Damage Award Limit or Cap No limitations. Wyoming Constitution Article 10, § 4: (a) No law shall be enacted limiting the amount of damages to be recovered for causing the injury or death of any person. (b) Any section of this constitution to the contrary notwithstanding, for any civil action where a person alleges that a health care provider's act or omission in the provision of health care resulted in death or injury, the legislature may by general law: (i) Mandate alternative dispute resolution or review by a medical review panel before the filing of a civil action against the health care provider.
Joint and Several Liability Several liability. §1-1-109. Each defendant is liable only to the extent of that defendant's proportion of the total fault.
Limits on Attorney Fees Ct. Rules, R. 1 et seq. Contingent fees which do not exceed the following schedule will be presumed to be reasonable and not excessive where the total recovery does not exceed $1 million: (1) 33-1/3 percent of the recovery if the claim is settled prior to or within 60 days after suit is filed; (2) 40 percent of the recovery if the claim is settled more than 60 days after filing suit or if a judgment is entered upon a verdict. For those amounts of a recovery in excess of $1 million a contingent fee of 30 percent of such excess sum over $1 million shall be presumed reasonable and not excessive.
Periodic Payments No applicable statute.
Patient Compensation or Injury Fund §26-33-105. Medical Liability Compensation Account. Participating physicians pay annual surcharge.
Pre-Trial Alternative Dispute Resolution and Screening Panels §1-1-124. The supreme court may promulgate rules to provide a screening procedure to expedite the prelitigation resolution of claims arising from any alleged act, error or omission in the rendering of licensed or certified professional or health care services.
§9-2-1513 et seq. The panel shall review all malpractice claims against health care providers filed with the panel except those claims subject to a valid arbitration agreement allowed by law or upon which suit has been filed prior to July 1, 2005. Unless submission to the panel is waived in accordance with W.S. 9-2-1519(a), no complaint alleging malpractice shall be filed in any court against a health care provider before a claim is made to the panel and its decision is rendered.
§9-2-1521. No decision of the director or the panel is subject to review in a court.
§9-2-1522. Upon consideration of all the relevant material, the panel shall determine whether there is: (i) Substantial evidence that the acts complained of occurred and that they constitute malpractice; and (ii) A reasonable probability that the patient was injured as a result of the acts complained of. The final decision shall be by a majority vote of the panel. The final decision shall be in writing. The panel's decision is not binding upon any party. The decision of the panel and any testimony, documents or materials submitted thereto and incorporated into the decision of the panel shall be admissible in whole or in part solely for purposes of impeachment in any subsequent trial of the matter, subject to the discretion of the trial court and in accordance with the Wyoming Rules of Evidence.
§9-2-1523. No panel member may be called to testify in any proceeding concerning the deliberations, discussions, decisions and internal proceedings of the panel. The claim, answer, decision and any other pleadings served under this act shall not be admissible in any subsequent civil action brought by the claimant against the health care provider for alleged malpractice.
Affidavit or Certificate of Merit §9-2-1519. The claimant shall submit, within 60 days following receipt of the health care provider's answer as required by subsection (e) of this section, a statement prepared and signed by an expert in the specialty or subspecialty of medical practice at issue, setting forth the basis for the expert's belief that the conduct is believed to constitute a malpractice claim and the evidence currently available to support the expert's opinion.
Expert Witness Standards No statute provided specific to medical liability/malpractice cases.
Medical or Peer Review Panels §35-17-101 et seq. Professional standard review organizations

 

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