Many Montanans are unaware of the monetary cap currently set on all noneconomic damages resulting from medical malpractice. No matter what the case is, the most a person can recover in return for their emotional trauma is $250,000. This cap is outlined in Montana Code Annotated § 25-9-411, which states that malpractice claims against one or more health care providers, based on a single malpractice incident, may not exceed noneconomic damages of $250,000.
This cap is largely based on California’s MICRA (Medical Injury Compensation Reform Act), which initially capped noneconomic damages to $250,000 in 1975. The difference between MCA and MICRA is that California raised their med mal cap to $350,000 in January 2023 with a planned $40,000 increase every year until it hits $750,000. Montana has never raised their cap, and with inflation, the current cap is equivalent to $125,000 in 1995.
Noneconomic damages are meant to compensate the injured party for their trauma and to reprimand the practitioner who committed malpractice. These damages are separate from costs incurred due to the injury, such as medical bills. The cap was introduced in 1995 in an attempt to entice doctors to practice in Montana. The goal was to lower insurance premiums and make the cost of care more affordable as a result. This, unfortunately, did not happen.
Instead of creating a thriving healthcare system, the cap has made it increasingly difficult to bring malpractice suits. Attorneys are hesitant to take on malpractice cases because the cost benefit ratio is risky. Trials are expensive, and a $250,000 limit might not even cover the cost of litigation, let alone compensate the injured party.
It is important to note that in a settlement it is possible to recover more than $250,000 in noneconomic damages. However, it’s a coin toss of whether or not insurance companies will agree to an adequate settlement. Oftentimes they are willing to settle, but nothing is guaranteed, and it probably will not be adequate.
The biggest problem with this damages cap is that many believe it violates Montana’s Constitution. Article 2 § 16 says, “…and speedy remedy afforded for every injury of person, property, or character. No person shall be deprived of this full legal redress…” Less than adequate compensation for noneconomic damages does not remedy every injury, and therefore many Montanans believe this cap violates the constitution.
The state of Wyoming has similar language in their Constitution. Article 1 § 8 states, “All courts shall be open and every person for any injury done to person, reputation or property shall have justice administered without sale, denial or delay.” The courts of Wyoming found that this inherent right did not allow for a medical malpractice cap. Many Montanans hope that the Montana Supreme Court will take a similar stance.
Since there is an alleged violation of our state’s Constitution, why hasn’t anyone challenged the cap? The first reason is that there needs to be a case big enough for the supreme court to set a new precedent. There have been several that came close, but at the end of the day, risking a settlement was not worth it. Insurance companies may be willing to pay more than $250,000 in a settlement to prevent the case being brought before the Supreme Court and jeopardizing the cap. These companies like the damages limit and they don’t want the cap raised or abolished. Plaintiffs who can get a solid settlement amount from the company understandably don’t want to give up their settlement payment for the $250,000 they would get in trial. The second reason is that there is always a chance the Supreme Court will uphold the cap as constitutional. If this happens, medical malpractice suits would become almost non-existent. These risks have kept the law in place for the last 30 years.
However, a recent case may provide an opportunity to change the cap status quo. Joey Zahara, a victim of medical malpractice, filed a suit back in November 2016 and went to trial in September 2022. He was awarded over $6 million in noneconomic damages by the jury. This is the largest malpractice verdict in Montana’s history. Unfortunately, the cap limits that award to $250,000, and defense council was quick to file a motion implementing the legal limit. It’s been 15 months since the verdict, and the Cascade County court still has not ruled on whether they will enforce the cap or allow Zahara to be awarded his entire verdict amount.
No matter which way the Judge rules, there is a high likelihood that this case will be appealed and brought before the Supreme Court. For the first time in 30 years there may be a chance to remove the cap.