substandard medical care, simply because physicians and their insurance companies are seen as “deep pockets” that can be tapped to ameliorate that misfortune. Another aspect of damage awards that has become highly contentious is the perception that some large awards are extraordinarily out of proportion to the injury suffered. As such, the awards appear not really to be to compensate the person, which is proper under the law of negligence, but would be to punish the physician for their behavior. In general, “punitive” damages are not supposed to be awarded in medical malpractice cases. The size of damage awards has become a major focus of state legislative changes. The principal response has been to put a limit on the amount of money that could be awarded in a malpractice suit. These statutory limits are generally known as “caps.” Previously, juries were largely free to award winning plaintiffs as much as they thought was appropriate, limited only by constraints on sums that amounted to punitive damages. Legislated caps, however, have restricted the size of awards well below that level. Several states have limited the total recovery available to plaintiffs. A larger number of states have imposed caps on non-economic damages; in some of these states the caps are absolute for all non-economic damages (e.g., cap of $250,000 for noneconomic damages) while in others the amount that may be recovered may vary based on the injury (e.g., cap does not apply in cases of permanent loss of bodily function or substantial disfigurement) or the type of conduct (e.g., cap may not apply in cases arising out of willful or reckless conduct). 8 Attorney Compensation. The way that lawyers representing injured parties are paid in most medical malpractice cases has also generated a great deal of controversy. In this country, people on each side of a lawsuit are generally responsible for paying their own lawyers. This is also true in medical malpractice cases. But in most legal cases, each party knows that they must pay their lawyers whether they win or lose, and this serves as a financial barrier to filing frivolous or small lawsuits. In medical malpractice, however, the lawyers representing patients usually receive a fee only if their client wins the case. This is known as a “contingent fee” arrangement. In addition, the fee is not a set dollar amount or an hourly fee, but instead is a percentage of the award. Attorneys who take these cases know that they might not get paid. This has several consequences. It means that lawyers are most likely to take cases that they think they will win and that they think will result in large verdicts. Traditionally, lawyers argued that this meant that they screened out cases that were not meritorious, since they would not want to risk wasting their time for free. But physicians feel that more often it means that lawyers will bring cases without merit but involving a seriously injured person simply because a highly sympathetic victim can lead to an award regardless of the quality of medical care involved. Moreover, physicians feel that the high costs of defending lawsuits has generated a likelihood that their own malpractice insurance company will “reward” and indeed encourage non-meritorious lawsuits by settling them when the insurer thinks settlement would be less costly than defending the case. The contingent fee arrangement also means that lawyers must take a large enough share of the damages when they win to offset the probability that they will get nothing from other lawsuits that they lose. Typically, this means that the lawyer will end up with 33%-50% of the total award. In large cases that settle quickly, this produces substantial payouts to lawyers for what seems to be very little effort. The financial interest that lawyers have under the contingent fee system has become a major source of controversy among physicians. It has also stimulated significant opposition by lawyers to caps on damage awards or any change in the way damages are calculated. For example, 9 if damages were to be strictly limited to actual monetary losses, the contingent fee would reduce the injured person’s recovery below their actual out-ofpocket loss by whatever amount was paid over to the lawyer. The contingent fee arrangements have led to tort law changes that target the amount of money paid to the lawyers who brought the lawsuit. A number of states restrict the attorney’s contingent fees to no more than a specific percentage of the total award, sometimes with the percentage decreasing as the size of the award increases. For example, California limits contingent fees to 40% of the first $50,000 of damages, 33 1/3% of the next $50,000, 25% of the next $500,000, and 15% of damages exceeding $600,000.7 How Should Damages Be Paid, and by Whom? Joint and Several Liability. Another contentious issue in the debate over medical malpractice law has been the extent to which negligent defendants can be required to pay damages for injuries caused by another negligent defendant. Traditionally in the tort system, any defendant who is found to have been responsible for a negligent injury can be required to pay the full amount of an award, regardless of how many other defendants were also at fault.8 Under this rule, all negligent defendants are subjected to what is called “joint and several” liability. If one or more defendants cannot pay for their