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Statutory Cap on Attorneys Fees and Pain and Suffering Damages In Medical Malpractice Cases

Many People Are Unaware That California Has A Statutory Cap On Both The Amount Of Attorneys’ Fees and The Amount Which  A Victim May Recover For Pain and Suffering in Medical Malpractice Cases.

Since the 1970s California  has limited the amount of attorneys fees in medical malpractice cases to 40 percent of the first $50,000, 33 1/3 percent of the next $50,000, 25 percent of the next $500,000, and 15 percent of any amount that exceeds $600,000. Cal. Bus. & Prof. Code § 6146 (West 1990). This limit applies regardless of whether the recovery is by settlement, arbitration, or judgment.  If the contingent fee arrangement is based on an award of periodic payments, the court is to place a total value on the payments based upon the projected life expectancy of the claimant, and then calculate the contingent fee percentages.

More importantly, California law places a cap on non-economic damages for medical malpractice cases. Non-economic damages, defined as compensation for pain, suffering, inconvenience, physical impairment, disfigurement, and other non-pecuniary injury, are limited to $250,000.  The cap applies whether the case is for injury or death.

In August 2009 the California Supreme Court announced it would refuse to hear an appeal that attempted to overturn the state’s 34-year old medical malpractice damages cap.  California was the first state to enact a damage cap on medical malpractice lawsuits. Thirty other states have similar laws.  Critics of the California damage cap say it violates injury victims’ rights, pointing out that the cap has not changed since 1975 and $250,000 does not have the same buying power it did in the seventies. There are efforts underway in Colorado, Tennessee and Nevada to repeal or increase medical malpractice limits.

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