Should NH cap non-economic medical malpractice damages?

Seeking to control rising health care costs, many states have set limits on how much juries can award for non-economic damages in medical malpractice cases.

Non-economic damages include payouts for factors such as pain, suffering, stress or anxiety in cases where a patient is deemed to have been harmed by the negligence of a medical professional. Costs for medical care or lost work time are considered economic damages and would not be subject to such limits.

Examples of caps on non-economic malpractice damages include a limit of $250,000 in California and one of $500,000 in Massachusetts.

In New Hampshire, an effort to institute a cap during the 1980s was deemed unconstitutional by state courts, so any attempt to create a limit on damages in the Granite State would need to involve an amendment to the state constitution.

Those in favor of a cap on “pain and suffering” damages argue that it will help to keep medical malpractice insurance affordable and will reduce the chances that doctors will order extra tests and procedures as “defensive medicine”, both of which would help to control rising healthcare costs.

Opponents counter that caps on damages make it harder to hold doctors accountable for bad practice, and contend that “defensive medicine” is really more a product of the fee-for-service structure of healthcare payments than of fear of liability. They argue that capping damages will therefore harm patients without relieving health care costs.