Overview

For over 200 years, the authority to determine medical liability law has rested with the states. This system, which allows each state the autonomy to regulate the resolution of medical liability actions within its borders, is a hallmark of our American justice system. The states also regulate the insurance industry. Because of the role they have played, the states are the repositories of experience and expertise in these matters. The American Bar Association remains committed to maintaining a fair and efficient system of justice where victims of medical malpractice can obtain redress based on state laws, without arbitrary or harmful restrictions.

Key Points

• Congress should not substitute its judgment for the systems that have thoughtfully evolved in each state over time. If enacted, the proposed legislation would preempt the rights of states to administer medical liability laws, an authority that has rested with the states for over 200 years. This system is a hallmark of our American justice system. Because of the role they have played, the states are the repositories of experience and expertise in these matters.
  
• There should be no ceilings on pain and suffering awards. Instead, the courts should make greater use of their powers of remittitur to set aside excessive verdicts.
  
• There is no evidence that caps on pain and suffering awards will reduce medical malpractice premiums.
  
• Proposals to limit non-economic damages deprive individuals of compensation for the consequences of medical malpractice injuries. No one has stated that such injuries are not real or severe; in fact, non-economic injuries may far exceed economic damages. These proposals, if enacted, would make seriously injured persons who are the least able to afford it receive less than full compensation, and thus help subsidize recoveries for less seriously injured persons who would be fully compensated. This would be grossly unjust and doubly so since it would not appreciably affect the cost of health care.

ABA Policy

The ABA urges the legal and medical professions to cooperate in seeking a solution to medical liability problems and maintains that federal involvement in the area is inappropriate. (1986M).  In particular, the ABA opposes caps on economic damages, pain and suffering awards, and contingent fees (2006M). The ABA also supports certain changes at the state level in the areas of punitive damages, jury verdicts and joint and several liability. (1987M).  For access to related policies and other resources, please visit the web page of the ABA Standing Committee on Medical Professional Liability at http://www.americanbar.org/groups/committees/medical_liability.html.

Updated as of:

February 2013