Like Illinois and Georgia before it, the state Supreme Court of Nevada is being asked to decide whether limits on malpractice awards are constitutional. About 30 states have caps on non-economic damages (for example, pain and suffering or loss of consortium), but over the past several years these caps have begun to be challenged in court.

Last year, both Illinois and Georgia Supreme Courts heard challenges to malpractice damage limits, and both courts ruled that such limits were unconstitutional as they deprived the jury from making a decision as to compensation.

The Nevada case involves a woman who died of a ruptured ulcer and peritonitis after a doctor misdiagnosed the condition as pancreatitis. The doctor and hospital were sued by the woman’s husband and six children. The lawsuit ran into Nevada’s $350,000 cap on non-economic damages which, if awarded, would have to be divided among all six children and the husband.

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The plaintiff’s attorneys maintain that the statute should be interpreted differently and are arguing that the cap should apply to each individual claimant, which would raise the amount awarded for pain and suffering to $5.6 million, rather than each event, which would limit the total to $350,000. In the event that the court does not agree with this interpretation, the attorneys are prepared to argue that the cap is unconstitutional.

The current malpractice damage limits in Nevada were approved by voters in 2004. Physicians claim it keeps insurance rates down and encourages doctors to practice in the state. However, a recent large-scale malpractice case involving a hepatitis C outbreak in a Las Vegas endoscopy clinic may have turned public sentiment in Nevada against physicians.