How to Bust the Caps – Avoiding Tort Reform Damages Caps – Hughey Law Firm Injury LaywersMedical Malpractice, Personal Injuries, Settlements
South Carolina has limitations on what an injured person can recover in certain types of lawsuits covered by our tort reform statutes. Recovery is not limited, however, to those amounts. Contact a South Carolina injury lawyer such as Nathan Hughey to discuss your injury claim and South Carolina’s tort reform statutes.
Limitations on recovery
South Carolina’s Non Economic Damages Act, as applies to nursing
homes, limits recovery as follows: “In an action on a medical malpractice claim when final judgment is rendered against a single health care institution, the limit of civil liability for non-economic damages is limited to an amount not to exceed three hundred fifty thousand dollars for each claimant, regardless of the number of separate causes of action on which the claim is based, except as provided in subsection (E).” § 15-32-220(B) (emphasis added).
However, the act allows a combination of health care institutions and health care providers to reach a higher limit on non-economic damages.
In an action on a medical malpractice claim when final judgment is rendered against more than one health care institution, or more than one health care provider, or any combination thereof, the limit of civil liability for non-economic damages for each health care institution and each health care provider is limited to an amount not to exceed three hundred fifty thousand dollars for each claimant and the limit of civil liability for non-economic damages for all health care institutions and health care providers is limited to an amount not to exceed one million fifty thousand dollars for each claimant, except as provided in subsection (E).
§ 15-32-220(c) (emphasis added). The ability to combine the limits within an action by naming additional tortfeasors is a reason that additional persons, such as nurses, may now be named individually in some nursing home cases. A health care provider under the act “means a physician, surgeon, osteopath, nurse, oral surgeon, dentist, pharmacist, chiropractor, optometrist, podiatrist, or similar category of licensed health care provider, including a health care practice, association, partnership, or other legal entity” § 15-32-210(5) (emphasis added).
The act provides for a yearly increase in the caps based on the Consumer Price Index. § 15-32-220(F).
Avoiding limitations on recovery
Nursing home residents often have little or no monetary loss as a result of their claims. Other than medical bills, specials are usually limited to funeral expenses and other miscellaneous items. These persons are usually not going to have lost economic damages in terms of money aside from the above and loss of retirement income. Under the act,
‘Economic damages’ means pecuniary damages arising from medical expenses and medical care, rehabilitation services, costs associated with education, custodial care, loss of earnings and earning capacity, loss of income, burial costs, loss of use of property, costs of repair or replacement of property, costs of obtaining substitute domestic services, a claim for loss of spousal services, loss of employment, loss of business or employment opportunities, loss of retirement income, and other monetary losses.
§ 15-32-210(3). On the other hand, ‘Non-economic damages’ means non-pecuniary damages arising from pain, suffering, inconvenience, physical impairment, disfigurement, mental anguish, emotional distress, loss of society and companionship, loss of consortium, injury to reputation, humiliation, other non-pecuniary damages, and any other theory of damages including, but not limited to, fear of loss, illness, or injury. § 15-32-210(9). These are the usual nursing home case damages. However, there are some potential ways to avoid the cap in the area of nursing home litigation.
The act does not limit the compensation for punitive damages. § 15-32-220(D)(2).
Other ways of avoidance
The act does not limit compensation for non-economic damages in certain situations likely to be applicable to nursing home litigation. The limitations “do not apply if the jury or court determines that the defendant was grossly negligent, willful, wanton, or reckless, and such conduct was the proximate cause of the claimant’s non-economic damages, or if the defendant has engaged in fraud or misrepresentation related to the claim, or if the defendant altered or destroyed medical records with the purpose of avoiding a claim or liability to the claimant.” § 15-32-220(E) (emphasis added).
Recently, a South Carolina jury awarded a $1.9 million verdict on actual damages only in a medical malpractice act in which they found that tort reform caps did not apply, due to reckless conduct by the physician. Read here for more information.