Placing a cap on “Pain and Suffering” in tort actions is essential; this is because there are many cases that arise from tort actions. Tort action is in itself a civil action or injury that does not arise from a contract. The law for such action provides for some outline of money damages. The actions arise from accidental laws like personal injury and negligence. This calls for a cap on the tort actions regarding pain and suffering. Reforms are needed, for proposals and enactment, to have a clear outset of the nature of tort actions.
The laws that are adopted and exist for the tort actions are proliferating. This is covering the wider scope of products, medicine, environment, among other sectors that need liability. Therefore, placing a cap on “Pain and Suffering” in the tort actions is needed to create a liability for creating harms or risks. The existing suits include; personal injury, product liability claims, medical negligence, and bad faith. All these require some form of claims. Many occasions parties strive to prove the wrongful conduct or negligence of another party. In case, a case is proven, the injured party is compensated in terms of monetary way (Abraham, 1992). This is done with the other party using non-economic and economic way. The use of economic compensation damage to a victim is in the form of quantifiable financial losses that can include; lost wages, future medical expenses, medical bills, and loss of household services. On the other hand, non-economical damages are awarded to injuries that include; suffering, pain, loss of consortium, loss of life enjoyment, and disfigurement. The damages constitute compensatory costs and are for the compensation of the injured person and losses incurred.
In addition, other damages are punitive. The excuse for the damage of punishing wrongful behavior and deterring others from doing similar activities is subjective. This damage has risen for the pat years; therefore, some form of cap is needed. Winning a punitive damage involves a lot of proof. The injured party requires sufficient prove against the defendant. The prove has to show that the defendant caused or intended the harm, or acted maliciously or fraudulently, and recklessly. The tort cases involving “Pain and Suffering” are prevalent; hence, require some form of placing a cap on the tort actions that lead to the same.
Placing a cap on “Pain and suffering” in tort actions can help in controlling the punitive and non-economic damages. This can help in limiting the amount of damages that the plaintiff can be given. The limit on the damages can help in recovering damages in tort actions such as “Pain and Suffering”. The reforms and legislature should prohibit the injured parties against stating the amount of money on the injury. In addition, medical expenses that are recoverable in medical malpractices should be limited. This can help in prohibiting plaintiffs in recovering damages that are paid as medical expenses by third party payers and insurance (Owen, 2011). The plaintiff can only be paid unless he paid the premiums for the third party payer or insurance and had a right of subrogation of the expenses. The plaintiff is permitted to recover that amount that he paid for the medical expenses. This is the cease instead of being paid the amount of the charges that were incurred. For example, the medical expense of a plaintiff can be $100,000 for surgical operation that resulted into “Pain and Suffering”. The payment is $20,000, and the plaintiff can recover the same. This is assuming that the plaintiff paid for the health insurance premiums and the right of subrogation existed. The nonmedical malpractice cases provide, for the plaintiff, to recover the total amount of the medical charger for treatment. This happens whether the plaintiff has paid for the health insurance premium or has a right of subrogation.
The tort action needs a cap to give a limitation on the amount of damages that a plaintiff should receive in case of pain and suffering being caused. This can help the plaintiff to recover the economic damages plus the pain and suffering that results in a wrongful death case. However, the plaintiff cannot recover the damages that arise from the consortium. This gives the non-economic damages a cap as the loss of the consortium that has a higher monetary value. The damages that arise from wrongful death cases can be of monetary value. This is because the death causes loss of consortium, affection and love for the deceased. The cap should be placed in “pain and Suffering” tort actions as attorneys find them profitable to prosecute. The economic damages that arise from the cases are not significant, hence, the need for the cap. In addition, larger verdicts have been seen on the cases. This has been reduced by the appellate courts, and lesser amounts have been settled during appeals. Moreover, appeals have been pending to have lesser or reduced amounts. The cases of “pain and Suffering” are infrequent, although, they have larger verdicts. This can be attributed to the scaring of the physicians by the large verdicts. They fear facing verdicts that exceed the insurance cover and the merits that are involved in the evaluation of the claims.
The capping will change the imposition of sums to the damages caused. The caps will lead to a more just, and fairer system. Furthermore, the aping of the tort actions will lead to a boost in the state of the economy of the country. The lack of capping can be a reason to the increasing malpractices in the insurance premiums and the ever rising cost of the health care services. The large verdicts can be behind the drive for the health care costs; however, the physicians can be involved in defensive medicine. This can protect them from the many law suits and lead to tests that can be clinically indicated. The capping can remove the high malpractice rates that drive the physicians to other states or move them out of business. However, there are those opponents for the capping of “Pain and Suffering” in the tort actions. The argument is that the cap will harm the patients that suffer most damages (CS, 2011). They are the one who need the most help, and; thus, the payments for the medical malpractices claims are not the ones that are underlying causes of the increasing healthcare cost and malpractice premiums. In addition, the argument is also based on the legal system. The damage amounts are ought to be determined by the jury of peers and not the government.
The caps in other areas of tort actions have had positive effects of development. The caps have led to increased number of businesses that come to the country. There is also increased physician retention and recruitment as a result of the tort action caps. In addition, the caps have led to the reduced medical malpractice liabilities on insurance premiums for the physicians. Therefore, the cap on “Pain and Suffering” in tort actions can also lead to same developments. There are also criticisms that arise from studies that have been done on capping tort actions. The studies have found some negative impacts on capping torts. For example, studies have found the injured patients that are most severe have the greatest damage award reduction. The elderly and women are the ones who suffer the most noticeable disparate impact as a result of the caps as they have low value of economic damage. In addition, studies show that verdicts for the injuries like numbness, deafness, chronic pain, and disfigurement that don not impair the physical functioning. They can also cause the loss of wage or healthcare costs that are high, and this can be wiped by the capping.
The damage for awards varies broadly. This is because they are based on factors that are not inherently related to those damages. An example is a loss that can be impacted by the defendant healthcare provider and also the number of defendants that are involved in the same damage case. Moreover, the large verdicts can be as a result of the value of the economic damage. This can be in the form of loss of house hold services, loss of earning capacity and medical expenses being high. Enacting the capping of “Loss and Suffering”, will, therefore, change the landscape of the tort litigation. This will make defendants not feel pressured in settling claims that need avoidance of financial ruin. Capping will also make some claims not to be economically viable for attorneys to pursue. Despite the capping, it is well known that the legal profession has a tendency to adapt to the changes that are enacted (Studdert, 2010). They can do this by first challenging the constitutionality of capping the “Pain and Suffering” tort action. The placing of capping will make the plaintiffs go to economists to challenge the uncapped damages. Having higher economic damages raises the verdict that is imposed on compensation limits on the caps.
Capping the “Pain and Suffering” tort action can make the plaintiffs resort to novel and new causes of action. The capping can help in eliminating the verdicts that were staggering in millions of sums. In addition, the threat of financial ruin can be decreased by the capping, but, the businesses and practitioners will want to maintain the insurance coverage. They will also want to maintain their reserves that are commensurate to the exposures that are there in the capping.
Abraham, K. S. (1992, September). An Interpretation of Contemporary Tort Reforms.
Retrieved June 6, 2012 from LexisNexis: https://litigation-essentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&doctype=cite&docid=51+Md.+L.+Rev.+172&srctype=smi&srcid=3B15&key=dd052acfe98a9bbc540791b2a9781480
Chas, S. (2011, February 17). Haslam proposes no cap on charters, longer wait for teacher tenure. Retrieved June 6, 2012, from Wbir.com:
Studdert, Y. T. (2010, July 1). Are Damages Caps Regressive? A Study Of Malpractice Jury Verdicts In California. Retrieved on June 6, 2012, from Deepdyve: