An Increased “Cap?” No way!

Beware of plaintiffs who try to raise the “homerun” number in medical malpractice wrongful death cases…

For example, consider the wrongful death lawsuit recently filed against our client, Dr. Dogooder, by the only daughter of an 84-year-old widow, Mrs. Doe, who died of heart-related complications.

At Mediation, in a last ditch effort to demand more money, opposing counsel claimed: “There are two plaintiffs – Mrs. Doe’s daughter and the Estate – so we get the multiple beneficiary cap on non-economic damages!”

On behalf of Dr. Dogooder, we adamantly disagreed: “No way, Mrs. Doe’s daughter is the only beneficiary so a single cap applies.”

Who won this argument?

As a trial court recently agreed, the multiplier cap did not apply – the daughter was the sole beneficiary, and not the Estate.Medical malpractice cases generally have a single cap for non-economic damages. Only in wrongful death cases with two or more claimants/beneficiaries, will the cap’s multiplier (125%) apply. The wrongful death statute specifically defines “beneficiaries” as the wife, husband, parent, and child of the deceased. The Estate is specifically not listed as a beneficiary.

Bottom line: don’t over-pay on your case!  If the cap’s multiplier statute is not relevant, don’t pay for it!

Larry Waranch

Larry Waranch

Larry Waranch is an AV rated trial lawyer and a founding partner of Waranch & Brown. His practice focuses primarily on medical malpractice defense, medical licensure matters, administrative defense and general liability.
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