Hawaii Supreme Court hears arguments on med-mal damages cap

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November 4, 2010

Hawaii Supreme Court hears arguments on med-mal damages cap 

In a case that will determine whether Hawaii’s unusual cap on damages for physical pain and suffering in medical negligence cases will stand, Center for Constitutional Litigation President Robert Peck told the court that damages “have a special place in the constellation of jury rights” and that the cap violates the separation of powers and the rights to due process and equal protection.

By Allison Torres Burtka

The Hawaii Supreme Court recently heard oral arguments in a medical malpractice case that will determine whether the state’s unusual cap on damages for physical pain and suffering will stand. The cap applies to most tort actions. (Ray v. Kapiolani Med. Specialists, No. 29988 (Haw. Oct. 21, 2010).)

When she was 14 years old, Alyssa Ray needed treatment for her lupus. A doctor gave her high-dose steroid treatments, which she and her parents alleged caused her myopathy, leaving her unable to move, breathe, eat, or speak on her own for months. She is now permanently disabled and will never walk again. The Rays argued that the doctor failed to tell them the high-dose treatment wasn't commonly accepted in the medical community and that lower-dose alternatives existed.

The jurors awarded the Rays damages, including $2 million for pain and suffering. The trial court reduced that amount to $375,000 in accordance with Hawaii's statutory cap. Unlike most caps, it specifies "physical pain and suffering."

But there was no way to tell whether the jury intended for that amount to include emotional as well as physical pain and suffering, and the trial court judge had acknowledged that the jury could have included emotional distress damages, the Rays argued. On appeal, they asked the court to either decline to apply the cap and reinstate the jury's verdict, declare the cap unconstitutional and restore the verdict, or remand the case for a new trial on general damages.

Both parties appealed on different issues. The Rays asked the Hawaii Supreme Court to take up the case directly, and it did.

The Rays argued that the cap violates the Hawaii constitution. Their opening brief says that "a law that replaces the jury's fairly rendered verdict with one of the political branches' one-size-fits-all determinations turns the inviolate right to a jury trial into little more than a right to an advisory opinion that the legislature may freely override."

Robert Peck, president of the Washington, D.C.-based Center for Constitutional Litigation, argued the case for the Rays. One justice asked him, "If we accept your arguments that this is the province of the jury, what about a statute that requires a reduction in damages based on comparative negligence?"

Peck responded, "That's actually taking a finding of fact of the jury and implementing it, as opposed to ignoring a fact found by the jury."

The Rays argued that the cap also violates the separation of powers and the rights to due process and equal protection. It "treats the most severely injured victims differently from those victims with less serious injuries"--only partially compensating the former but fully compensating the latter, they argued.

"We know that damages have a special place in the constellation of jury rights," Peck said at oral argument.

Georgia and Illinois struck down caps on noneconomic damages in medical malpractice cases earlier this year. Challenges are pending to similar caps in California, Florida, Kansas, Louisiana, Nevada, Texas, and West Virginia, as well as a cap on both economic and noneconomic damages in Indiana.

"Noneconomic damages are an important component of compensatory damages," and the full amount awarded ought to be recoverable, Peck noted after the argument. He added that the more caps are struck down, the less likely legislatures will be to see them as a solution to the problems they're trying to address.


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