ALABAMA REFORM Cap for Noneconomic • Permits of collateral source payments, • Recovery for including evidence that noneconomic insurance or worker’s damages is limited to compensation $400,000. reimbursed the plaintiff. • held unconstitutional by Payment of Judgments Mobile Infirmary • For medical liability Medical Center v. judgments exceeding Hodgen, 884 So.2d $100,000, the may 801 (Ala. 2003). deduct from the award Future Damages the amount covering out-of-pocket expenses • Not to be reduced to and allow the rest to be paid in present value and no interest monthly installments over the shall be charged lifetime of the plaintiff. • If is greater than $150,000, the first $150,000 is to be paid upon entering the • In any action for injury or judgment with the rest being damages or wrongful death, paid in periodic payments whether in or in tort, • Statute was held against a health care provider unconstitutional by Lloyd based on a breach of the Noland Hosp v. Durham, 906 standard of care, the minimum So.2d 157 (Ala. 2005). standard of proof required to Cap on Punitive Damages test the sufficiency of the evidence to support any issue • Punitive damages are generally of fact shall be proof by capped at either three times substantial evidence. compensatory damages or $500,000, whichever is greater. Evidentiary Standard However, the statute does • The Daubert v. Merrell Dow provide for exceptions. Pharmaceuticals, 509 U.S. 579 Collateral Sources (1993), standard only applies to the admissibility of DNA evidence. The court has not abandoned the general $500,000, whichever is acceptance standard of Frye v. greater. U.S., 393 F. 1013 (CA D.C. 1923), • If the conduct was ALASKA in civil cases. motivated by financial gain, then the plaintiff may be Cap on Noneconomic Damages awarded the greatest of: 1) • Recovery for noneconomic four times compensatory damages damages, 2) in a four times the personal amount of injury suit is the limited to defendant’s $1,000,000 aggregate or the life financial expectanc gain, or 3) y in years $7,000,000. times • Punitive $25,000, whichever is damages will only be greater. awarded when the tort • In all other claims, action is proven by clear noneconomic damages are and convincing evidence. capped at $400,000 or the Collateral Sources life expectancy multiplied by $8,000, whichever is • Permits evidence of greater. collateral source payments, including evidence that Cap on Punitive Damages insurance or worker’s • Punitive damages are compensation reimbursed limited to either three times the plaintiff. the amount of Evidentiary Standard compensatory damages or • The Daubert standard has been adopted as controlling when determining the admissibility of scientific evidence. ARIZONA TORT REFORM reached based on the application of novel Unconstitutionality of Damages scientific principles, but Caps does not apply to • The Arizona conclusions based on states that no reasoning resulting shall be from experience, enacted limiting observation, or the amount of research. damages to be recovered for causing death or injury of any person. • also may not operate to abrogate causes of action.

Periodic Payments

• In cases, any party may elect to receive or pay future damages for economic losses in periodic installments • Statute was held unconstitutional by Smith v. Myers, 181 Ariz. 11 (1994).

Evidentiary Standard

• Frye is applicable to scientific conclusions ARKANSAS TORT REFORM must have the assistance of experts to Periodic Payments decide the issue of • At the request of . either party,

future damages exceeding $100,000 may Evidentiary Standard be paid in periodic • The Daubert payments. standard has • Statute held unconstitutional explicitly been adopted. by McMullin v. U.S., 515

F.Supp.2d 914 (E.D. AR 2007).

Experts in Medical Malpractice Cases

• Expert testimony is not required in every medical malpractice case. • Medical malpractice plaintiff must present expert testimony only when the asserted negligence does not lie within the jury's comprehension as a matter of common knowledge, when the applicable standard of care is not a matter of common knowledge, and when the TORT REFORM beyond common experien Cap on Noneconomic ce, 2) the Damages opinion • Noneconomic would damages are assist the capped at trier of $250,000. fact, and 3) the Future Damages basis for • Future damage the awards opinion is exceeding a source $50,000 may be reasonab paid in periodic ly relied payments. upon by others in Collateral Sources the field. • Permits evidence of • Continue to adhere to the collateral source payments, “Kelly/Frye” general including evidence of Social acceptance standard Security or other forms of rather than transitioning to government reimbursement. Daubert.

Evidentiary Standard Scope of Damages • Damages should be o California Evidence Code Rule 801 is awarded to fully distinct from the compensate the party for federal rules. A detriment caused, whether witness may testify as or not that harm was an expert if 1) the anticipated. subject is sufficiently COLORADO TORT REFORM repeated in a willful or wanton manner. Cap for Noneconomic Damages • Permits evidence of • In cases not collateral involving source medical payments. malpractice,

noneconomic damages are Evidentiary Standard capped at • Focus of $250,000. Upon admissibility of clear and convincing expert testimony is on justification, the may whether it is reliable and exceed this cap, but may relevant, based on whether not award more than the prejudice outweighs the $500,000. probative value. • In cases involving medical malpractice, the total recovery cannot exceed $1

million, with no more than $300,000 of the award coming from noneconomic damages.

Cap on Punitive Damages

• Punitive damages cannot exceed the amount of actual damages awarded. • The judge may increase the award to up to three times actual damages if the conduct has been CONNECTICUT TORT REFORM

Payment of Judgments

• When economic and noneconomi c damages totaled are more than $200,000, the judge will enter a judgment for a lump sum of $200,000 and give the parties 50 days to negotiate a periodic payment plan of the remaining amount.

Collateral Sources

• The amount of award representing economic damages shall be reduced by the amount received from collateral sources.

Evidentiary Standard

• Court has expressly adopted the Daubert standard. FLORIDA TORT REFORM • In vegetative state or death cases, noneconomic Cap for damages are capped at $1.5 Noneconomic million unless there is Damages catastrophic injury or • Recovery for manifest injustice. noneconomic Noneconomic Damages damages for Cap for Emergency medical Service Providers negligence is limited to • Noneconomic $500,000 per damages shall not claimant, with exceed $150,000 per no practitioner being liable for claimant. more than $500,000, regardless • Noneconomic damages from of the number of claimants. all claimants shall not exceed This is increased to $1 million if $300,000. failure to do so would result in Effect of Settlements manifest injustice or if the patient suffered catastrophic • Settlements are to be used to injury. setoff the amount awarded in • In death or permanent order to avoid exceeding the vegetative state cases, caps. noneconomic damages may not exceed $1 million. Effect of Arbitration • Noneconomic Damages Caps for In medical liability cases, Non-Practitioners noneconomic damages are capped at $350,000 if the • In personal injury or wrongful plaintiff refuses to arbitrate. death claims of medical • In a voluntarily arbitrated negligence of non- case, noneconomic damages practitioners, noneconomic are capped at $250,000 per damages are capped at incident and punitive $750,000 per claimaint. damages are precluded. Evidentiary Standard

• Continue to follow the Frye test in lieu of adopting Daubert. GEORGIA TORT REFORM Cap for Noneconomic Damages • Jury may apportion damages to non-parties when (1) the • Recovery for noneconomic non-party settles with the damages for medical plaintiff, or (2) a negligence limited to defendant gives $350,000 for all notice of intent to medical providers seek combined, with an apportionment to additional $350,000 the non-party. each for up to two medical facilities. Qualified Experts • Held to be an • To testify as an unconstitutional expert (or give an infringement on the right to a affidavit) in a medical jury in Atlanta malpractice case, an Oculoplastic Surgery, P.C. v. otherwise qualified expert Nestlehutt, 286 Ga. 731 (2010). must have been in active Emergency Medical Providers practice or teaching in his area of specialty for at least • Medical providers providing three of the last five years. emergency care in a hospital • Such practice must include emergency room, obstetrical performing the procedure, unit, or surgical suite are diagnosing the condition, or immune from liability absent rendering the treatment at clear and convincing issue in the (or evidence of gross negligence. teaching regarding the same). Joint and Several Liability Evidentiary Standard • Joint and several liability • Specifically adopted much of eliminated. Jury must the language from the federal apportion damages to all rules of evidence, and statute parties based on degree of states that Georgia fault. There is no right to “may” apply Daubert and its contribution for any amount progeny. apportioned. HAWAII TORT REFORM transcended the breach of contract Liability for Accidental Harm in Motor Vehicle Collision

• Tort liability is Effect of Settlements abolished with • Settlements are to be respect to used to setoff the accidental amount awarded in harm from a order to avoid motor vehicle exceeding the caps. collision. • Liability remains Evidentiary Standard where a death occurs, the injury is • The essential inquiry is permanent with respect to whether the proffered a part or function of the expert testimony will assist body, a permanent the . disfigurement, or personal • HRS 702 has incorporated injury protection benefits many aspects of Daubert, incurred equal to or and it has also incorporated exceeding $5,000. a reliability factor.

Pain and Suffering

• Damages recoverable for pain and suffering are capped at $375,000.

Punitive Damages

• Punitive damages are not recoverable for breach of contract unless it violated an independent duty and ILLINOIS TORT REFORM Cap on Noneconomic Damages

• Noneconomic damages in medical malpractice cases were capped at $500,000 against doctors and $1 million against hospitals. • Statute was deemed unconstitutional by Lebron v. Gottlieb Memorial Hospital, 237 Ill.2d 127 (2010).

Affidavit Requirement

• Previously had an affidavit requirement with pleadings for medical malpractice claims, but it was also deemed unconstitutional in the Lebron v. Gottlieb Memorial Hospital case.

Periodic Payments

• Allows for periodic payments for future payments exceeding $250,000. •

IOWA TORT REFORM

Standard of Care

• A witness may only testify as to the appropriate standard of care if that person has qualification s that relate directly to the medical problem at issue and the type of treatment administered in the case.

Supersedeas Bond

• The amount the defendant must pay in order to secure the right of appeal may never be more than $100 million.

KANSAS TORT REFORM received in the future shall be admissible. Cap on Noneconomic Damages

• Noneconomic damages are capped at $250,000 in Evidentiary Standard wrongful death • In order to be actions. admissible, Cap on Pain and expert Suffering Damages testimony must be helpful to the • Damages for jury and the pain and suffering are basis of the expert’s opinion limited to $250,000 per party must be shown to be in an action. generally acceptable in the expert’s particular scientific Periodic Payments field. • Allows for periodic payments of future losses over the period of time when the losses will be needed.

Collateral Sources

• In a personal injury or death action, if the award of damages exceeds $150,000, evidence of collateral source benefits received or reasonably expected to be KENTUCKY TORT REFORM • When a party makes a claim for unliquidated Requirement of Expert Testimony damages, the other party • In medical malpractice may request an amount in cases, a interrogatori plaintiff is es. In doing typically so, the party required to claiming put forth damages is expert then limited testimony to to the last show that amount the defendant medical stated in answer to provider failed to conform interrogatories. to the standard of care. Damages in Medical Malpractice • Expert testimony will not be required if the defendant • Plaintiffs may recover for: physician makes admissions past medical expenses; past that make his negligence pain and suffering; lost apparent. wages; future medical • In res ipsa loquitur cases, expenses; future pain and expert testimony will not be suffering; and future required if the jury “may impairment to earn a living. reasonably infer both The plaintiff’s spouse may negligence and causation also recover for loss of from the mere occurrence consortium. of the event and the defendant’s relation to it.” Evidentiary Standard Perkins v. Hausladen, 828 • Courts have repeatedly S.W.2d 652 (Ky. 1992). applied the Daubert Unliquidated Damages analysis when evaluating the admissibility of expert testimony.

LOUISIANA TORT REFORM vacated by the Louisiana Supreme Court, which State Liability in Tort ordered reconsideration en • The total banc. liability of Punitive Damages the state and political • Punitive damages subdivisions are not allowed for all unless they are damages expressly authorized for personal by statute. injury or wrongful death, exclusive of Evidentiary Standard property damages, shall not • Have adopted Daubert exceed $500,000, regardless standard of the number of suits filed or claims made for the person suffering the injury.

Cap on Malpractice Damages

• The total amount recoverable for all malpractice claims for injuries or death, exclusive of future medical care, shall not exceed $500,000 plus interest and costs. • Statute deemed unconstitutional by Oliver v. Magnolia Clinic, 51 So.3d 874 (La. App. 2010), but, in 2011, that decision was MASSACHUSETTS TORT REFORM • Every action for malpractice, error or mistake against a Cap on Noneconomic Damages provider of health care shall • The total liability of the state be heard by a and political consisting of a subdivisions single for all of the superior damages for court, a personal physician injury or licensed to wrongful practice death, medicine in exclusive of property the commonwealth and an damages, shall not exceed attorney authorized to $500,000, regardless of the practice law in the number of suits filed or claims commonwealth, at which made for the person suffering hearing the plaintiff shall the injury. present an offer of proof and said tribunal shall determine if Cap on Pain and Suffering Damages the evidence presented if • Awards shall not be more than properly substantiated is $500,000 for pain and sufficient to raise a legitimate suffering, loss of question of liability companionship, appropriate for judicial inquiry embarrassment and other or whether the plaintiff's case items of general damages is merely an unfortunate unless the jury determines that medical result. there is a substantial or Collateral Sources permanent loss or impairment of a bodily function or • Evidence of collateral source substantial disfigurement, or payments may be introduced other special circumstances Evidentiary Standard Procedure in Medical Malpractice Claims • Have adopted the basic reasoning of Daubert, but general acceptance in the relevant scientific community will continue to be the significant, if not only, issue. MINNESOTA TORT REFORM Daubert. Expert testimony must be generally accepted

to assist the Punitive Damages trier of fact.

• Allowed in civil actions upon clear and convincing evidence that the acts of the defendant show deliberate disregard for the rights or safety of others. • The complaint must not seek punitive damages. A party may make a motion to amend the pleadings to claim punitive damages.

Collateral Sources

• Evidence of collateral source payments are admissible only for the court’s review. • Awards are to be offset by the amount of collateral source payments.

Evidentiary Standard

• Continues to show preference to the Frye standard over MICHIGAN TORT REFORM

Cap on Noneconomic Damages

• In medical liability cases, noneconomic damages are capped at $280,000 for ordinary occurrences. • If the claimant suffered brain damage, spinal cord damage, damage to the reproductive system which prevents procreation, or injury to cognitive ability leaving the plaintiff unable to live alone, then noneconomic damages are capped at $500,000.

Collateral Sources

• Evidence of collateral source payments may be introduced after the but before the judgment is entered.

Evidentiary Standard

• Rules of evidence were amended to explicitly incorporate Daubert.

MISSISSIPPI TORT REFORM being illustrative r,ather than exhaustive.

Punitive Damages

• Allowed in civil actions upon clear and convincing evidence that the acts of the defendant show deliberate disregard for the rights or safety of others. • The complaint must not seek punitive damages. A party may make a motion to amend the pleadings to claim punitive damages.

Collateral Sources

• Evidence of collateral source payments are admissible only for the court’s review. • Awards are to be offset by the amount of collateral source payments.

Evidentiary Standard

• Has recognized Daubert as a superior analytical framework while stating that its list of factors should be looked at as MISSOURI TORT REFORM that he or she has obtained the written opinion of a legally Cap on Noneconomic Damages qualified health care provider • In actions against a which states that the healthcare defendant provider for health care personal provider failed injury or to use such death, no care as a plaintiff reasonably may prudent and recover careful health more than care provider $350,000 would have for under similar nonecono circumstances mic damages irrespective of and that such failure to use the number of defendants. such reasonable care directly caused or directly contributed Periodic Payments to cause the damages • Periodic payments may be claimed in the petition. made for future damages Evidentiary Standard exceeding $100,000 in medical liability cases. • Adheres to the Frye test in criminal cases, such as with Requirement of Affidavit DNA evidence, but applies • In any action against a health Daubert in all other contexts. care provider for damages for personal injury or death on account of the rendering of or failure to render health care services, the plaintiff or the plaintiff's attorney shall file an affidavit with the court stating MONTANA TORT REFORM

Cap on Noneconomic Damages

• In actions against a healthcare provider for personal injury or death, no plaintiff may recover more than $250,000 for noneconomic damages.

Periodic Payments

• Periodic payments may be made for future damages exceeding $50,000 in medical liability cases.

Collateral Sources

• Awards are to be offset by collateral sources in medical liabilities for awards over $50,000.

Evidentiary Standard

• Adopted Daubert for the admission of scientific expert testimony. • Requires a preliminary showing that the expert’s opinion was based on reliable methodology. NEVADA TORT REFORM Affidavit Requirement

Cap on Noneconomic • If an action for medical Damages malpractice or dental malpractice the court • In actions shall dismiss the against a action, without healthcare prejudice, if the provider for action is filed without personal injury an affidavit, or death, no supporting the plaintiff may allegations contained recover more in the action, than $350,000 submitted by a for medical expert who noneconomic practices or has damages. practiced in an area Cap on Punitive Damages that is substantially similar to the type of practice engaged in at • May not exceed three times the time of the alleged compensatory damages if malpractice. compensatory damages are $100,000 or more. Requirement of Expert Testimony • May not exceed $300,000 if the • Liability for personal injury or amount of compensatory death is not imposed upon any damages is less than $100,000. provider of medical care based • Statute provides some exceptions on alleged negligence in the to these caps. performance of that care unless Periodic Payments evidence consisting of expert medical testimony, material from • Periodic payments may be made recognized medical texts or for future damages exceeding treatises or the of the $50,000 in medical liability cases. licensed medical facility wherein the alleged negligence occurred Collateral Sources is presented to demonstrate the • Awards are to be offset by alleged deviation from the collateral sources in medical accepted standard of care in liabilities for awards over $50,000. the specific circumstances of the case and to prove causation of the alleged personal injury or death

Evidentiary Standard

• Has yet to adopt the Daubert standard. NEW HAMPSHIRE TORT REFORM • Have adopted Daubert as the standard for the admissibility of Cap on Noneconomic Damages scientific evidence. • In actions against a healthcare provider for personal injury or death, no plaintiff may recover more than $350,000 for noneconomic damages.

Punitive Damages

• May not be awarded unless otherwise provided for by statute. • If the defendant’s conduct was wanton, malicious, or oppressive, the amount of compensatory damages may reflect such aggravating circumstances.

Periodic Payments

• Periodic payments may be made for future damages in medical liability cases.

Evidentiary Standard NEW JERSEY TORT REFORM

Collateral Sources

• Awards are to be offset by collateral source payments other than workers compensation and life insurance benefits

Evidentiary Standard

• With the exception of toxic tort litigation, Frye remains the standard. The test is whether the specific scientific community generally accepts the evidence. • For toxic tort litigation, the methodology and reasoning must support the testimony. NEW MEXICO TORT REFORM • Have adopted Daubert as the standard for the admissibility of Cap on Aggregate Damages expert testimony. • In malpractice suits, except for punitive damages and medical care damages, the aggregate dollar amount recoverable shall not exceed $600,000 per occurrence. • A health care provider’s personal liability is limited to $200,000 for monetary damages and medical care damages. • Monetary damages shall not be awarded for future medical expenses in malpractice claims.

Future Medical Care

• Future medical care and related benefits are not subject to the $600,000 cap on aggregate damages.

Evidentiary Standard OHIO TORT REFORM economic damages up to a maximum of $350,000 per Cap on Claims Against person or $500,000 per Governmental Entity or Political occurrence. Subdivision • There are no caps on • Noneconomic damages are catastrophic injury capped at claims. $250,000 per Cap on Punitive Damages person, even in catastrophic • Punitive damages injury claims. are limited based on the wealth and size Cap on Damages in of the defendant. Medical Malpractice Claims Collateral Sources

• Noneconomic • Evidence of damages are collateral sources capped at the greater of may be introduced. $250,000 per person, or 3 times

the amount of economic damages up to a maximum of $350,000 or $500,000 for each occurrence. • Noneconomic damages for catastrophic injuries are capped at $500,000 for each plaintiff or $1 million per occurrence.

Cap on General Tort Damages

• Noneconomic damages are capped for non-catastrophic injuries at $250,000 per person, or 3 times the amount of OREGON TORT REFORM • Courts find Daubert to be instructive, but have not Prohibition on Damages Cap formally • Oregon law adopted it. prohibits a cap on noneconomic damages

Punitive Damages

• When punitive damages are awarded, 60% is to be paid to the state’s Criminal Injuries Compensation Account, 40% to the prevailing party, and no more than 20% may be paid to the prevailing party’s attorney. • May only be requested in an amended complaint once a prima facie case for liability is established.

Collateral Sources

• May reduce awards for collateral source payments, excluding life insurance, benefits for which the plaintiff paid premiums, retirement benefits, disability benefits, pension plan benefits, or federal social security benefits.

Evidentiary Standard PENNSYLVANIA TORT REFORM

Evidentiary Standard

• Affirmativel y rejected the Daubert standard in favor of retaining the Frye general acceptanc e test. RHODE ISLAND TORT REFORM

Periodic Payments

• Parties are to consider the use of periodic payments in settlements where the damages are likely to be in excess of $150,000.

Collateral Sources

• Evidence of payments from state income disability or workers compensation is admissible, and the jury should reduce damage award by the amount paid by those collateral sources.

Evidentiary Standard

• Have adopted the principles of Daubert, including the gatekeeping function, but have not gone so far as to completely abandon Frye. SOUTH DAKOTA TORT REFORM of contract than he could have gained by the full performance Exemplary Damages thereof on both sides, except in • A general remedy by damages cases where the statute does not provides for include exemplary exemplary or damages. penal Punitive Damages damages, nor interest on any • In any action for damages. the breach of an These must be obligation not explicitly arising from provided for by statute in order contract, where the defendant to be recovered. has been guilty of oppression, • If the statute provides for fraud, or malice, actual or exemplary damages, it must be presumed, or in any case of proven by clear and convincing wrongful injury to animals, being evidence that there is a subjects of property, committed reasonable basis to believe that intentionally or by willful and there has been willful, wanton, wanton misconduct, in or malicious conduct on the disregard of humanity, the jury, part of the party claimed in addition to the actual against. damage, may give damages for the sake of example, and by Cap on General Damages way of punishing the • In medical liability cases, defendant. general damages are capped Periodic Payments at $500,000. • There is no limitation on the • A party may elect the periodic amount of special damages payment of future damages that may be awarded. exceeding $200,000 within 120 days of service of the Breach of Contract Damages complaint. • No party may recover a greater Evidentiary Standard amount in damages for breach • Have adopted Daubert and no longer require general acceptance in the scientific community.

TENNESSEE TORT REFORM • Failure by a plaintiff to submit a certificate of good faith Collateral Sources results in dismissal with • Economic prejudice. damages may

be offset in medical liability Evidentiary cases by Standard collateral • Have sources, adopted except for Daubert in sources part, but including the Frye is still the dominant assets of the plaintiff and doctrine. immediate family or insurance purchased by the plaintiff in whole or part.

Procedure in Medical Malpractice Cases

• An expert set to testify in a medical malpractice case must have been licensed to practice within the state or in a contiguous state in the year prior to the alleged injury or wrongful act. • With the complaint, must provide a certificate of good faith wherein the expert certifies that he/she meets the requirements to testify and believes there is a good faith basis to maintain the action. TEXAS TORT REFORM Cap on Punitive Damages

Cap on Noneconomic Damages • Punitive damage awards are limited to $ • In suits against 200,000 or two practitioners, times the noneconomic economic damages are damages plus capped at an amount $250,000 per equal to any claimant, non-economic regardless of damages up to $ the number of 750,000. practitioners being sued. Expert Witnesses • In suits against • In a medical liability action, in one healthcare institution, the order to qualify as an expert, noneconomic damages the witness must: 1) be inclusive of all persons and practicing medicine at the time entities for which vicarious the testimony is given or at the liability may apply shall not time the claim arose, 2) have exceed $250,000 per claimant. knowledge of the accepted • If judgments are rendered standard of care in that field, against more than one and 3) be qualified on the basis healthcare institution, of training or experience to noneconomic damages for any offer an expert opinion one institution may not exceed regarding that standard of $250,000 and the noneconomic care. damages for all institutions may not exceed $500,000. Evidentiary Standard

Cap in Wrongful Death Actions • Persuaded by Daubert, requiring that expert testimony • In wrongful death actions, total be both relevant and based civil damages, including upon a reliable foundation. exemplary damages, are limited to $500,000 per claimant. UTAH TORT REFORM and a disregard of, the rights of others. Cap on Noneconomic Damages • If punitive damages are awarded, the first $50,000 is awarded to the • In medical liability actions, injured party, and any amount in noneconomic damages are excess of $50,000 is to be divided capped at, equaled between depending on the the injured party date when the cause and the state. of action arose, between $250,000 Requirement of Affidavit and $450,000. • Claimants must Collateral Sources submit an affidavit of merit which 1) • In medical liability must be executed actions, awards are to by counsel stating be reduced by the that a healthcare total amount of all provider reviewed collateral payments the facts of the made to the plaintiff. case and believes Cap on Punitive Damages there is a reasonable ant meritorious cause of action, 2) • Punitive damage awards are affidavit signed by a healthcare limited to $ 200,000 or two times provider stating that it is the the economic damages plus an opinion of him/her that there are amount equal to any non- reasonable grounds to believe that economic damages up to the standard of care was $750,000 breached, that the breach was • Except as otherwise provided by the proximate cause of the injury, statute, punitive damages may be and the reasons for that belief. awarded only if compensatory or • To qualify as a healthcare provider general damages are awarded who may sign an affidavit, the and it is established by clear and expert must be licensed by a state convincing evidence that the acts in the same specialty or same class or omissions of the tortfeasor are of license of the respondent. the result of willful and malicious or intentionally fraudulent conduct, or Evidentiary Standard conduct that manifests a knowing • Persuaded by Daubert, using it in and reckless indifference toward, making determinations without officially declaring it to be controlling. VIRGINIA TORT REFORM within one year of the date of the alleged act or omission forming the Cap on Damages in Medical Malpractice basis of the action. Claims • Any physician or nurse who is licensed to practice in Virginia shall • In a case against a healthcare provider for malpractice occurring be presumed to know the after August 1, statewide 1999, the total standard of amount care in the recoverable is specialty or capped by field of statute. medicine in which he is • The statute provides timetables for when the qualified and certified. This alleged malpractice took place presumption shall also apply to any that correspond with the amount physician who is licensed in some of the cap. These caps begin at other state of the $1.5 million for acts occurring and meets the educational and between August 1, 1999 and June examination requirements for 30, 2000 and increase licensure in Virginia. • incrementally, with the last In medical malpractice designated cap being for acts proceedings, each party may occurring between July 1, 2030 designate, identify or call to testify and June 30, 2031, which are at trial no more than two expert capped at $2.95 million. witnesses per medical discipline on any issue presented. The court may • Acts occurring after July 1, 2031 will be capped at $3 million. permit a party, for good cause shown, to designate, identify, or Expert Witnesses call to testify at trial additional expert witnesses. • A witness shall be qualified to testify as an expert on the standard of care if he demonstrates expert Evidentiary Standard knowledge of the standards of the • In a civil proceeding, if scientific, defendant's specialty and of what technical, or other specialized conduct conforms or fails to knowledge will assist the trier of conform to those standards and if fact to understand the evidence or he has had active clinical practice to determine a fact in issue, a in either the defendant's specialty witness qualified as an expert by or a related field of medicine knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise. WASHINGTON TORT REFORM • This statute was held unconstitutional by Sofie v. Cap on Noneconomic Damages Fiberboard Corp., 112 Wash.2d • In no action seeking damages 636 (1989) (en banc). for personal injury

or death may a claimant recover Future Payments a judgment for • In a personal noneconomic injury or damages property exceeding an damage amount action where determined by future multiplying 0.43 damages are awarded, by the average annual wage amounts over $100,000 may by the life expectancy of the be paid periodically. person incurring noneconomic damages, as the life Evidentiary Standard expectancy is determined by the life expectancy tables • Washington has rejected the adopted by the insurance adoption of Daubert, instead commissioner. continuing to follow the • Claims for , reliability standard of Frye. loss of society and companionship, destruction of the parent-child relationship, and all other derivative claims asserted by persons who did not sustain bodily injury are to be included within the limitation on claims for noneconomic damages arising from the same bodily injury. WISCONSIN TORT REFORM • Unless specially excepted by the statute, punitive damages Cap on Noneconomic Damages received by the plaintiff may • In medical not exceed twice the amount malpractice of any actions, compensatory noneconomic damages damages are recovered by the capped at plaintiff or $200,000, $750,000. whichever is greater. Cap on Wrongful Death Damages Future Medical Expenses

• Judgment for damages for • Future medical damages in pecuniary injury from wrongful excess of $100,000 are to be death may be awarded to paid in to a fund, which will any person entitled to bring a then be dispersed to the wrongful death action. claimant periodically. Additional damages not to Evidentiary Standard exceed $500,000 per occurrence in the case of a • Courts have not adopted Frye deceased minor, or $350,000 or Daubert, choosing instead per occurrence in the case of to empower with a a deceased adult, for loss of limited gatekeeping function , society and companionship but keeping the emphasis may be awarded to the primarily on the relevancy of spouse, children or parents of the expert testimony. the deceased, or to the siblings of the deceased, if the siblings were minors at the time of the death.

Cap on Punitive Damages WYOMING TORT REFORM

Cap on Claims Against Governmental Entities

• In medical malpractice actions against a government employee or entity, the liability of the governmental entity shall not exceed $1,000,000. • In other tort actions against a governmental entity, awards to a single claimant shall not exceed $250,000. Total awards to all claimants for any single occurrence shall not exceed $500,000.

Evidentiary Standards

• Court has expressly adopted the Daubert standard for evaluating the admissibility of expert testimony.