Nevada’s $350,000 Cap on Noneconomic Damages Held Constitutional and Applicable Per Incident

Tam v. Eighth Jud. Dist. Ct., — P.3d — , 2015 WL 5771245 (Nev. 2015)

Bad news for Nevada’s victims of medical malpractice. This state’s Supreme Court upheld the constitutionality of the $350,000 cap on noneconomic damages as limiting recovery for all kinds of victims and injuries. Moreover, the Court held that the cap applies per incident, which encompasses all mistakes that the doctor may have made in delivering a single treatment to a patient and all the victims of those mistakes (such as twins born with birth defects as a result of negligent prenatal care or delivery). For my discussion of the “per incident” and alternative approaches to caps, see here.

The Court’s rejection of the constitutional challenge to the cap is particularly noteworthy. The challengers argued, quite sensibly, that the cap was unconstitutional because it violated victims’ right to a trial by jury. According to the Court, “the cap does not interfere with the jury’s factual findings because it takes effect only after the jury has made its assessment of damages, and thus, it does not implicate a plaintiffs right to a jury trial.” That is, when a Nevada jury assesses the victim’s noneconomic damage at, say, $1,000,000, reducing this amount to $350,000 would not violate the victim’s right to a jury trial because the court here nullifies the jurors’ verdict ex post without telling them how to decide the case.

I don’t think much commentary is needed here. The Court’s interpretation of the right to a jury trial is analogous to a decision that interprets the Takings Clause as allowing the government to seize private property upon paying the owner “just compensation” reduced by a special 65% tax.

The Court also dismissed the plaintiffs’ equal protection challenge by categorizing medical malpractice victims’ entitlement to recover damages as “[not] a fundamental constitutional right.” This debatable categorization enabled the Court to upheld the cap’s constitutionality by applying the famous mechanism of “minimal scrutiny in theory and virtually none in fact” (Gerald Gunther, Foreword: In Search of Evolving Doctrine On A Changing Court: A Model for a Newer Equal Protection, 86 Harv. L. Rev. 1, 8 (1972)).

Nevada’s Supreme Court drew its inspiration from the California Supreme Court decisions, as it does in many cases. Perhaps on this occasion, it could have done better if it considered an excellent constitutional analysis carried out by the Florida Supreme Court in McCall v. United States, 134 So.3d 894 (Fla. 2014). For my discussion of this medical-malpractice decision of the year for 2014, see here.