A Tale of Three Damage Caps: Too Much, Too Little and Finally Just Right
![handle is hein.journals/cwrlrv40 and id is 835 raw text is: A TALE OF THREE DAMAGE CAPS: Too MUCH, Too LITTLE
AND FINALLY JUST RIGHT
Medical malpractice damage caps have been proposed as
one way of solving the medical malpractice liability crisis. Af-
ter examining three different, but typical, damage caps, the Au-
thor constructs a model statute. This statute is favored be-
cause, on balance, it is more effective in solving the crisis and
more fair and desirable to the interested parties: insurance
companies, health care providers and medical malpractice vic-
tims. The model statute also avoids the constitutional infirmi-
ties that have befallen other damage caps.
IN THE AREA of medical malpractice, there recently has been
a myriad of tort reform measures as states across the nation
have struggled to find a cure for the perceived liability crisis.'
While legislatures have advanced many different proposals, one
common reform measure has been the damage cap, which is the
imposition of a limitation on the amount of damages that can be
recovered as a result of a single incident of medical malpractice.2
Part I of this Note considers a number of preliminary matters,
including a discussion of what kind of crisis exists and, after intro-
ducing the damage cap concept, the general effectiveness of dam-
age caps in alleviating the crisis. Part II analyzes the effectiveness,
fairness and desirability of damage cap provisions as enacted in
three states. Each presents a different variation on the same
theme, but none is without its weaknesses. For example, the Ohio
provision3 would be effective, but is too burdensome for the victim;
the Wisconsin provision4 does not put enough of a burden on the
1. See generally Note, The Constitutionality of Medical Malpractice Legislative
Reform: A National Survey, 18 Loy. U. Cm. L.J. 1053 (1987) (analyzing constitutional
challenges raised against a variety of medical malpractice reform measures).
2. See, e.g., Note, Fein v. Permanente Medical Group: Future Trends in Damage
Limitation Adjudication, 80 Nw. U.L. REV. 1643, 1652-55 (1987) [hereinafter Note, Fu-
ture Trends] (reviewing several legislatively imposed caps and treatment received by the
courts of several states).
3. OHIO REV. CODE ANN. § 2307.43 (Baldwin 1984).
4. Wis. STAT. ANN. § 893.55 (West Supp. 1989).](ViewImageLocal?handle=hein.journals/cwrlrv40&div=28&collection=&method=preview&ext=.png&size=3)
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A Tale of Three Damage Caps: Too Much, Too Little and Finally Just Right
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