¹ See John Gibeaut, The Med-Mal Divide: As the AMA Talks Up Damage Caps and Specialty Courts, Solving the Medical Malpractice Clash May Require Bridging the Lawyer-Doctor Culture Gap, ABA J., Mar. 2005, at 39, 41 (“The AMA’s suggested legislation rests on the premise that ‘under the current system awards often are based on the level of injury, not the incidence of malpractice.’ As a result, distrusting physicians avoid lawsuits by practicing defensive medicine, ordering more tests and other procedures or sending patients elsewhere at a cost of ‘billions of dollars.’”); Jeffrey A. Singer, The Case Against National Medical Malpractice Reform, Reason (Apr. 4, 2017, 12:00 PM), https://reason.com/2017/04/04/the-case-against-national-medical-malpra/ [https://perma.cc/F66G-UCYS] (“Generations of practicing under the threat of malpractice suits have changed the culture of medical practice. Ordering expensive, redundant, and possibly unneeded tests is now baked into the cake. Doctors are trained through medical school and postgraduate residency programs to lean heavily on testing—from blood tests to high-tech imaging—in their diagnosis and treatment.”).

² See Op-Ed: To Solve the Malpractice Insurance Crisis, Roll Back Rates, Not Rights, Consumer Watchdog, (Feb. 6, 2003), https://consumerwatchdog.org/uncategorized/op-ed-solve-malpractice-insurance-crisis-roll-back-rates-not-rights/ [https://perma.cc/7XXC-7XVP] (arguing that California’s medical malpractice damage caps undermine “the powerful incentive for quality care provided by the threat of a lawsuit”); see also Martin A. Makary & Daniel Michael, Medical Error-the Third Leading Cause of Death in the US, 353 Brit. Med. J. 2139, 2140 (2016) (finding that “medical error is the third most common cause of death” in the United States).

³ Makary & Michael, supra note 2, at 2140.

⁴ Jon Shreve et al., Milliman, The Economic Measurement of Medical Errors 5 (2010), https://www.soa.org/49386b/globalassets/assets/files/research/projects/research-econ-measurement.pdf (reporting that medical errors cost the United States’ economy roughly nineteen-and-a-half billion dollars in direct costs and one-and-a-half billion in indirect costs in 2008 alone).

⁵ See Mitchell J. Nathanson, It’s the Economy (and Combined Ratio), Stupid: Examining the Medical Malpractice Litigation Crisis Myth and the Factors Critical to Reform, 108 Penn St. L. Rev. 1077, 1079 (2004); Robert Glatter, Medical Malpractice: Broken Beyond Repair?, Forbes (Feb. 6, 2013, 7:30 AM), https://www.forbes.com/sites/robertglatter/2013/02/06/medical-malpractice-broken-beyond-repair/?sh=2f029f7d6b78 [https://perma.cc/UJ8G-WZY7] (arguing that the current medical liability system forces physicians to divert time away from patients to address “frivolous” malpractice claims).

⁶ The Medical Liability Crisis, Am. Coll. of Surgeons, https://www.facs.org/advocacy/federal-legislation/liability/guide-to-liability-reform/the-medical-liability-crisis/#:~:text=A%20Health%20Coalition%20on%20Liability,behind%20rising%20health%20care%20costs [https://perma.cc/9QH2-ET8H] (last visited Apr. 20, 2023) (claiming that more than thirty states “face a ‘looming’ [medical liability] crisis”); see Chad Terhune, Leading Republicans See A Costly Malpractice Crisis - Experts Don’t, Kaiser Health News (Jan. 4, 2017), https://kffhealthnews.org/news/leading-republicans-see-a-costly-malpractice-crisis-experts-dont/ [https://perma.cc/2F8H-ZTGQ] (describing House Republicans’ plan to pass national medical tort reform legislation in response to a “medical malpractice crisis [that] is threatening U.S. health care”).

⁷ Data and Resources, Health Coalition on Liability and Access, https://web.archive.org/web/20040221025636/http://www.hcla.org/polls.html [https://perma.cc/R2JH-DMA4] (Feb. 2003) (last visited Apr. 21, 2023).

⁸ Phillip M. Cox, II & Edmund F. Funai, The Best of Times or the Worst of Times? A Tale of Two Surveys: OB/GYNs’ Fear of Being Sued May Be Disproportionate To The Frequency of Malpractice Claims, 61 Contemporary OB/GYN 26, 27 (2016) (reviewing OB/GYN survey results to conclude that roughly forty percent of respondents report having made changes to their clinical practice due to malpractice insurance trends, such as early retirement, reducing work hours, and transferring to non-clinical settings).

⁹ Ctr. for Just. & Democracy, Fact Sheet: Caps On Compensatory Damages: A State Law Summary (Aug. 22, 2020), https://centerjd.org/content/fact-sheet-caps-compensatory-damages-state-law-xsummary#_ftnref10 [https://perma.cc/HG93-9JZD] (twenty-two states impose statutory caps on non-economic damages, and six states cap total damages for medical malpractice actions).

¹⁰ See Neb. Rev. Stat. Ann. § 44-2803 (2005) (defining health care provider as “(1) A physician; (2) a certified registered nurse anesthetist; (3) an individual, partnership, limited liability company, corporation, association, facility, institution, or other entity authorized by law to provide professional medical services by physicians or certified registered nurse anesthetists; (4) a hospital; or (5) a personal representative…”); Ind. Code Ann. § 34-18-2-14 (2016) (comprehensively defines “health care provider” as “[a]n individual, a partnership, a limited liability company, a corporation, a professional corporation, a facility, or an institution license or legally authorized by this state to provide health care or professional services as a physician, psychiatric hospital, health facility, emergency ambulance service, dentist, …” as well as a “blood bank, community mental health center, community intellectual disability center, community health center, or migrant health center”); Cal. Civ. Code § 3333.2(j)(1) (West 2023) (“any persons licensed or certified pursuant to Division 2,” “the legal representatives of a health care providers and the health care provider’s employer, professional corporation, …”); S.C. Code Ann. § 15-79-110(3) (2005) (“‘Health care provider’ means a physician, surgeon, osteopath, nurse, oral surgeon, dentist, pharmacist, chiropractor, optometrist, podiatrist, or any similar category of licensed health care provider, including a health care practice, association, partnership, or other legal entity”).

¹¹ See Sofie v. Fibreboard Corp., 112 Wash. 2d 636, 771, 729 (Wash. 1989) (holding that Washington’s cap on noneconomic damages violated the state constitution’s right to jury trial in undermining the jury’s role in determining damages); Carson v. Maurer, 424 A.2d 825, 838 (N.H. 1980) (finding that parts of state medical malpractice statute violated the state constitution’s equal protection clause by arbitrarily discriminating against malpractice victims with damages exceeding the statutory cap); Lebron v. Gottlieb Mem’l Hosp., 930 N.E.2d 895, 914 (Ill. 2010) (ruling that state noneconomic damage cap violated the state constitution’s separation of powers provision by forcing courts to override juries’ independent determinations of damages for malpractice victims).

¹² See Ariz. Const. art. II, § 31 (“No law shall be enacted in this state limiting the amount of damages to be recovered for causing death or injury of any person…”); Ark. Const. art. V, § 32 (“[N]o law shall be enacted limiting the amount to be recovered for injuries resulting in death or for injuries to persons or property; and in case of death from such injuries the right of action shall survive, and the General Assembly shall prescribe for whose benefit such action shall be prosecuted”); Ky. Const. § 54 (“The General Assembly shall have no power to limit the amount to be recovered for injuries resulting in death, or for injuries to person or property.”); Wyo. Const. art. X, § 4 (“No law shall be enacted limiting the amount of damages to be recovered for causing the injury or death of any person.”).

¹³ See Ordinola v. Univ. Physician Assocs., 625 S.W.3d 445, 454 (Mo. 2021) (holding that non-economic damage caps did not deprive malpractice plaintiffs of the state constitution’s right to trial); Hoffman v. United States, 767 F.2d 1431, 1437 (9th Cir. 1985) (ruling that California’s medical malpractice damage cap did not violate the federal Equal Protection Clause); Watson v. Hortman, 844 F. Supp. 2d 795, 802 (E.D. Tex. 2012) (rejecting medical malpractice plaintiffs’ argument that Texas’s damage caps statute infringes on potential plaintiffs’ property rights under the Fifth Amendment Takings Clause).

¹⁴ Shaakirrah R. Sanders, Deconstructing Juryless Fact-Finding in Civil Cases, 25 Wm. & Mary Bill Rts. J. 235, 293 (2016) (noting that damage caps “are unlike anything recognizable in the common law”); Watts v. Lester E. Cox Med. Centers, 376 S.W.3d 633, 639 (Mo. 2012) (finding that statutory caps on jury awards were foreign to the common law at the time that Missouri ratified its constitution).

¹⁵ Watts, 376 S.W.3d, at 639.

¹⁶ Sanders, supra note 14, at 239.

¹⁷ Breanna Hardy, Doctors Speak Out On Malpractice Proposition Coming Before Voters, Bus. J. (Dec. 10, 2021, 1:19 PM), https://thebusinessjournal.com/doctors-speak-out-on-malpractice-proposition-coming-before-voters/ [https://perma.cc/CKM3-CNLU] (reporting that California doctors argue that the legislature’s proposal to raise malpractice damage caps will reignite another malpractice crisis and drive doctors out of rural areas).

¹⁸ Id.

¹⁹ Leonard J. Nelson, III et. al., Medical Malpractice Reform in Three Southern States, 4 J. Health & Biomedical L. 69, 71-72 (2008).

²⁰ Nathanson, supra note 5, at 1079.

²¹ Id. at 1080.

²² Id.

²³ Id. at 1079.

²⁴ Frank A. Sloan, State Responses to the Malpractice Insurance “Crisis” Of the 1970s: An Empirical Assessment, 9 J. Health Pol. Pol’y L. 629, 629 (1985).

²⁵ Am. Med. Ass’n, From the AMA.: Medical Malpractice Reform, N.Y. Times, Oct. 15, 2011, https://www.nytimes.com/2011/10/16/opinion/sunday/from-the-ama-medical-malpractice-reform.html [https://perma.cc/8HUZ-LXVZ]; Marc A. Rodwin, Justin Silverman, & David Merfield, Why the Medical Malpractice Crisis Persists Even When Malpractice Insurance Premiums Fall, 25 Health Matrix 163, 167 (2015) (referring to state and federal legislators expressing concern that rising insurance premiums will force specialists out of practice and deter medical students from entering specialized fields).

²⁶ Rodwin, supra note 25, at 167.

²⁷ Id.

²⁸ Nathanson, supra note 5, at 1080.

²⁹ Rodwin, supra note 25, at 168.

³⁰ Sloan, supra note 24, at 633.

³¹ Nelson, supra note 19, at 71-72.

³² Sloan, supra note 24, at 633-636.

³³ Medical Malpractice, Ins. Info. Inst., https://www.iii.org/issue-update/medical-malpractice [https://perma.cc/QL8N-NMZW] (last visited Apr. 21, 2023).

³⁴ Sloan, supra note 24, at 635.

³⁵ Id. at 632.

³⁶ Sylvia Law & Steven Polan, Pain and Profit: The Politics of Malpractice 171 (1978).

³⁷ See Sloan, supra note 24, at 632-633; Law & Polan, supra note 36, at 171.

³⁸ U.S. Gen. Acct. Off., Rep. No. GAO-03-702, Medical Malpractice Insurance: Multiple Factors Have Contributed to Increased Premium Rates, 15 (June 2003), http://www.gao.gov/new.items/d03702.pdf (finding “insurers’ losses, declines in investment income, a less competitive climate, and climbing reinsurance rates have all contributed to rising [malpractice] premium rates.”).

³⁹ Sue Ganske, Noneconomic Damages Caps in Wrongful Death Medical Malpractice Cases - Are They Constitutional?, 14 Fla. St. U. Bus. Rev. 31, 31-32 (2015).

⁴⁰ Id. at 31.

⁴¹ Id at 31-32.

⁴² Ctr. for Just. & Democracy, supra note 9.

⁴³ Id.

⁴⁴ La. Stat. Ann. § 40:1231.2(B)(1) (2015).

⁴⁵ W. McDonald Plosser, Sky’s The Limit? A 50-State Survey Of Damage caps And The Collateral Source Rule, Mondaq (Dec. 11, 2018), https://www.mondaq.com/unitedstates/insurance-laws-and-products/762574/sky39s-the-limit-a-50-state-survey-of-damages-caps-and-the-collateral-source-rule [https://perma.cc/48UB-R3NH].

⁴⁶ See, e.g., City of Houston v. Houston, 608 S.W.3d 519, 524 (Tex. App. 2020).

⁴⁷ See Ind. Code Ann. § 34-18-2-14(1) (2016); Mont. Code Ann. § 25-9-411 (2023) (a health care provider is any “physician, dentist, podiatrist, optometrist, chiropractor, physical therapist, or nurse licensed under Title 37 or a health care facility licensed under Title 50, chapter 5”).

⁴⁸ See La. Stat. Ann. § 40:1231.1(10) (defining “health care provider” as over thirty different professionals and professional corporations); Alaska Stat. Ann. § 09.55.560(2) (2005) (limiting “health care providers” to specific professions, such as acupuncturist, chiropractor, dentists, physicians, podiatrist, etc.).

⁴⁹ See Ind. Code Ann. § 34-18-2-14(1) (2016) (adding four additional categories of “health care providers” to the medical malpractice liability statute since original enactment in 1998); Noelke v. Heartland Indep. Living Ctr., 637 S.W.3d 378, 381 (Mo. Ct. App. 2021) (noting that that medical tort liability statute only extends to entities “enumerated” as health care providers or is licensed to provide health care).

⁵⁰ Ind. Code Ann. § 34-18-2-14(1) (2016).

⁵¹ See N.C. Gen. Stat. Ann. § 90-21.11(1) (2017) (defining health care provider “without limitation” to list of enumerated individual practitioners and entities); Utah Code Ann. § 78B-3-403(13) (West 2022) (health care providers are “any person, partnership, association, corporation, or other facility or institution who causes to be rendered or who renders health care or professional services as [other listed providers]”); Mo. Ann. Stat. § 538.205(6) (2020) (health care providers are “any physician, hospital, …., and any other person or entity that provides health care services under the authority of a license or certificate”).

⁵² N.C. Gen. Stat. Ann. § 90-21.11(1) (2017); S.C. Code Ann. § 15-32-210 (2005) (defining health care providers as any “similar category of” enumerated entities).

⁵³ See S.C. Code Ann. § 15-32-210(5-6) (2005); see also Utah Code Ann. § 78B-3-403(13) (West 2022).

⁵⁴ N.C. Gen. Stat. Ann. § 90-21.11(1)(a) (2017).

⁵⁵ See Phillips v. Larry’s Drive-In Pharmacy, Inc., 647 S.E.2d 920, 927 (W. Va. 2007) (holding that damage cap statute’s phrase “including, but not limited to” in defining health care providers did not recognize additional types of providers not listed in the statute).

⁵⁶ Ctr. for Just. & Democracy, supra note 9 (nine states’ damage caps were struck down as unconstitutional and have not been reenacted, compared to the twenty-nine states with currently valid statutes); Victor E. Schwartz & Christopher E. Appel, Perspectives on the Future of Tort Damages: The Law Should Reflect Reality, 74 S.C. L. Rev. 1, 37 (2022) (the majority of state courts have “generally respected” noneconomic damage caps as a rational policy solution to lowering large damage awards).

⁵⁷ Constitutional Challenges to State Caps on Non-Economic Damages, Am. Med. Ass’n, https://www.ama-assn.org/media/14451/download (last updated Sep. 2017) (state and federal courts considered constitutional trial right challenges to damage caps in twenty states, equal protection challenges in eighteen states, and separation of powers challenges in nine states); see also Beason v. I. E. Miller Servs., Inc., 441 P.3d 1107, 1109 (Okla. 2019) (holding that Oklahoma’s damage cap law violated state constitution’s prohibition on special laws); Hilburn v. Enerpipe Ltd., 442 P.3d 509, 524 (Kan. 2019) (ruling that noneconomic damage cap for medical malpractice actions deprived plaintiffs of the right to a jury trial under the state constitution); Busch v. McInnis Waste Sys., Inc., 468 P.3d 419, 433 (Or. 2020) (finding that noneconomic damage cap violated state constitution’s remedy clause); Siebert v. Okun, 2021-NMSC-016, 485 P.3d 1265, 1274 (N.M. 2021) (ruling that New Mexico’s noneconomic damage cap did not violate the right to a jury trial under the state’s constitution).

⁵⁸ See Am. Med. Ass’n, supra note 57; Condon v. St. Alexius Med. Ctr., 926 N.W.2d 136, 143 (N.D. 2019) (finding that while previous version of damage cap violated the state’s equal protection clause, current reiteration of the law did not impermissibly classify “seriously injured victims of medical negligence” and “other victims of medical negligence”).

⁵⁹ Am. Med. Ass’n, supra note 57 (finding that no federal court has struck down a state’s non-economic damage caps); Schwartz & Appel, supra note 56, at 38 (noting that no state’s high court has struck down a damage cap statute as unconstitutional under the United States Constitution).

⁶⁰ See, e.g., Hoffman v. United States, 767 F.2d 1431, 1437 (9th Cir. 1985) (ruling that California’s medical malpractice damage cap did not violate the federal Equal Protection Clause); Watson v. Hortman, 844 F. Supp. 2d 795, 802 (rejecting medical malpractice plaintiffs’ argument that Texas’s damage caps statute infringes on potential plaintiffs’ Fifth Amendment Takings Clause rights).

⁶¹ Frank A. Sloan et al., Effects of Tort Reforms on the Value of Closed Medical Malpractice Claims: A Microanalysis, 14 J. Health Pol. Pol’y & L. 663, 678 (1989) (finding that malpractice damage caps reduce average recovered noneconomic damages by thirty-one percent); Albert Yoon, Damage Caps and Civil Litigation: An Empirical Study of Medical Malpractice Litigation in the South, 3 Am. L. & Econ. Rev. 199, 203 (2001) (average medical malpractice plaintiff recovery in Alabama “decreased by roughly $20,000” after the legislature enacted damage caps, but “roughly double[d]” after the state’s high court invalidated the caps).

⁶² Stephen Daniels & Joanne Martin, Plaintiffs’ Lawyers, Specialization, and Medical Malpractice, 59 Vand. L. Rev. 1051, 1072-1073 (2006) (respondent malpractice specialists experienced significant drops in malpractice suits immediately after Texas imposed noneconomic damage caps).

⁶³ Ronen Avraham, An Empirical Study of the Impact of Tort Reforms on Medical Malpractice Settlement Payments, 36 J. Legal Stud. S183, S188-S189 (2007).

⁶⁴ Rodwin, supra note 25, at 168.

⁶⁵ Nancy T. Greenspan, A Descriptive Analysis of Medical Malpractice Insurance Premiums,1974-1977, Health Care Fin. Rev. 65, 66 (1979).

⁶⁶ Texas House Journal, 2003 Reg. Sess. No. 40 (proposed amendment to Texas’s malpractice statute stating “[the medical malpractice insurance crisis] has had a substantial impact on the physicians and hospitals of Texas and the cost to physicians and hospitals for adequate medical malpractice insurance has dramatically risen in price”); Luther v. IOM Co. LLC, 130 So. 3d 817, 822 (La. 2013) (finding that “the [Louisiana] legislature intended the [Medical Malpractice Act] to reduce or stabilize medical malpractice insurance rates and to assure the availability of affordable medical services to the public”); McDougall v. Schanz, 597 N.W.2d 148, 176 n. 9 (Mich. 1999) (noting that the purpose of Michigan’s medical malpractice reform was to ameliorate the “malpractice crisis facing high-risk specialists, such as neurosurgeons, orthopedic surgeons and ob/gyns”).

⁶⁷ Neb. Rev. Stat. § 44-2801(1) (2022); W. Va. Code Ann. § 55-7B-1 (2015).

⁶⁸ Luther v. IOM, 130 So. 3d at 822; Coe v. Superior Ct., 220 Cal. App. 3d 48, 53 (Ct. App. 1990).

⁶⁹ Greenspan, supra note 65, at 66.

⁷⁰ Rodwin, supra note 25, at 167.

⁷¹ See Texas House Journal, 2003 Reg. Sess. No. 40; Luther, 130 So. 3d at 822; McDougall, 597 N.W.2d at 176 n. 9.

⁷² See Greenspan, supra note 65, at 65; Sloan, supra note 24, at 629.

⁷³ Stephen Zuckerman, Christopher F. Koller & Randall R. Bovbjerg, Information on Malpractice: A Review of Empirical Research on Major Policy Issues, Law & Contemp. Probs., 85, 89 (1986).

⁷⁴ See W. Va. Code Ann. § 55-7B-1 (2015) (purpose of malpractice reform was meant to address West Virginia’s “loss and threatened loss of physicians”); Colo. Rev. Stat. Ann. § 13-64-102(1) (2003) (legislature intended to combat rising insurance rates “for medical care institutions and licensed medical care professionals” in enacting procedural limitations on medical liability); Colo. Rev. Stat. Ann. § 13-64-501(1) (1998) (defining “health-care institution” as “any licensed or certified hospital, health-care facility, dispensary, or other institution for the treatment or care of the sick or injured”).

⁷⁵ Schwartz & Appel, supra note 56, at 37.

⁷⁶ Judd v. Drezga, 103 P.3d 135, 140 (Utah 2004).

⁷⁷ Id.

⁷⁸ See, e.g., Luther v. IOM, 130 So. 3d at 822; Coe v. Superior Ct., 220 Cal. App. 3d at 53 (holding that the original policy purposes of California’s MICRA law would be consistent with extending statutory coverage to blood banks).

⁷⁹ See Platts v. Parents Helping Parents, 947 P.2d 658, 663 (Utah 1997) (holding that court of appeals erred in concluding that “troubled youth” treatment program was not a “health care provider” solely because the specific type of facility was not mentioned in the statute); Williams v. Quest Diagnostics, Inc., 816 S.E.2d 564, 566 (S.C. 2018) (ruling that diagnostic laboratory qualified as a health care provider within state medical liability statute despite no mention of laboratories under the definition of “health care provider”).

⁸⁰ See Platts, 947 P.2d at 663; Williams, 816 S.E.2d at 566.

⁸¹ Verticor, Ltd. v. Wood, 509 S.W.3d 488, 497 (Tex. App. 2015) (dismissing malpractice claim against medical device manufacturer since product manufacturers do not render “health care services” or act similarly to traditional health care providers and institutions).

⁸² Christus Health v. Beal, 240 S.W.3d 282, 286 (Tex. App. 2007).

⁸³ See Utah Code Ann. § 78B-3-403(13) (West 2022).

⁸⁴ 816 S.E.2d, at 566.

⁸⁵ Id. at 564.

⁸⁶ Id.

⁸⁷ S.C. Code Ann. § 38-79-410 (1988).

⁸⁸ Compare S.C. Code Ann. § 38-79-410 (1988) with S.C. Code Ann. § 15-79-110(3) (2005).

⁸⁹ Williams, 816 S.E.2d at 566.

⁹⁰ Id. at 565.

⁹¹ Id.

⁹² Id.

⁹³ Timothy Nicolette, Williams v. Quest: The South Carolina Supreme Court’s Misdiagnosis of Quest Diagnostics As A Health Care Provider and the Poor Prognosis for Plaintiffs in Medical Malpractice, 13 Charleston L. Rev. 393, 408 (2019) (distinguishing hospitals from laboratories in that hospitals treat underlying diseases and offer twenty-four hour care for overnight patients, while laboratories do not).

⁹⁴ Utah Code Ann. § 78B-3-403(13) (West 2022); Platts, 947 P.2d at 663 (Utah 1997).

⁹⁵ 947 P.2d at 662.

⁹⁶ Id. at 660.

⁹⁷ See id.

⁹⁸ See Phillips, 647 S.E.2d at 927; Morris v. Administrators Of Tulane Educ. Fund, 891 So. 2d 57, 61 (La. App. 4 Cir. 2004) (malpractice statute’s lack of mention of athletic trainers automatically excludes athletic trainers from eligibility for damage caps).

⁹⁹ La. Stat. Ann. § 40:1231.1(10) (2020).

¹⁰⁰ La. Stat. Ann. § 40:1231.2(B)(1) (2015) (limiting total damages recoverable for medical malpractice and wrongful death actions to five hundred thousand dollars “plus interest and cost,” except for “future medical care and related benefits”).

¹⁰¹ See Roberson v. Arcadia Healthcare Ctr., Inc., 850 So. 2d 1059, 1065 (La. App. 2 Cir. 2003).

¹⁰² Morris, 891 So. 2d at 61.

¹⁰³ See Phillips 647 S.E.2d at 925.

¹⁰⁴ Id. at 927.

¹⁰⁵ Id. at 923.

¹⁰⁶ Id. at 927.

¹⁰⁷ Id.

¹⁰⁸ Id.

¹⁰⁹ Id. at 928.

¹¹⁰ Id.

¹¹¹ W. Va. Code Ann. § 55-7B-2(g) (2022).

¹¹² See Phillips 647 S.E.2d at 925.

¹¹³ S.C. Code Ann. § 38-79-410 (1988).

¹¹⁴ W. Va. Code Ann. § 55-7B-2 (2015).

¹¹⁵ Phillips 647 S.E.2d at 925; Platts 947 P.2d at 662; Williams 816 S.E.2d at 566.

¹¹⁶ See David M. Studdert, et al, Are Damage Caps Regressive? A Study of Malpractice Jury Verdicts in California, 23 Health Affs. 54, 61-62 (2004) (finding noneconomic damage caps reduce the amount of winnable medical malpractice damages anywhere between one-hundred thousand and one-and-a-half million dollars).

¹¹⁷ H.E. Frech III, et al., An Economic Assessment of Damage Caps in Medical Malpractice Litigation Imposed by State Laws and the Implications for Federal Policy and Law, 16 Health Matrix 693, 700 (2006) (malpractice caps do not deter strong potential malpractice claimants but do deter those with weaker claims).

¹¹⁸ Aquatic Care Programs, Inc. v. Cooper, 616 S.W.3d 615, 623 (Tex. App. 2020).

¹¹⁹ Hollingsworth v. Springs, 353 S.W.3d 506, 515 (Tex. App. 2011).

¹²⁰ San Antonio Extended Med. Care, Inc. v. Vasquez, 327 S.W.3d 193, 198 (Tex. App. 2010).

¹²¹ Turtle Healthcare Grp., L.L.C. v. Linan, 338 S.W.3d 1, 6 (Tex. App. 2009).

¹²² La. Stat. Ann. § 40:1231.1(10) (2020).

¹²³ Sanders, supra note 14, at 239.

¹²⁴ Sanders, supra note 14, at 239.

¹²⁵ Phillips, 647 S.E.2d at 928.

¹²⁶ W. Va. Code Ann. § 55-7B-1 (2015).

¹²⁷ See Neb. Rev. Stat. Ann. § 44-2801(1) (1976); Wis. Stat. Ann. § 893.55(1d)(a) (2008); Colo. Rev. Stat. Ann. § 13-64-102 (2003).

¹²⁸ Phillips, 647 S.E.2d at 928.

¹²⁹ See id.

¹³⁰ See Neb. Rev. Stat. Ann. § 44-2801(1) (1976) (declaring that “[i]t is essential in this state to assure continuing availability of medical care and to encourage physicians to enter into the practice of medicine in Nebraska and to remain in such practice as long as such physicians retain their qualifications.”); Wis. Stat. Ann. § 893.55(1d)(a) (2008) (stating that “[t]he objective of the treatment of this section is to ensure affordable and accessible health care for all of the citizens of Wisconsin while providing adequate compensation to the victims of medical malpractice” and that “[a]chieving this objective requires a balancing of many interests.”); Ala. Code § 6-5-540 (2023) (asserting that procedural malpractice restrictions must be “given effect immediately to help control the spiraling cost of health care and to insure its continued availability” and to combat the “crisis threaten[ing] the delivery of medical services to the people of Alabama”).

¹³¹ W. Va. Code Ann. § 55-7B-1 (2015).

¹³² See Wis. Stat. Ann. § 893.55(1d)(a) (2008); Fla. Stat. Ann. § 766.201(1)(d) (2003) (stating that “[t]he high cost of medical negligence claims in the state can be substantially alleviated by requiring early determination of the merit of claims … and by imposing reasonable limitations on damages, while preserving the right of either party to have its case heard by a jury”) (emphasis added).

¹³³ S.C. Code Ann. § 15-32-210 (2005).

¹³⁴ W. Va. Code Ann. § 55-7B-1 (2015); Neb. Rev. Stat. Ann. § 44-2801(1) (1976); Wis. Stat. Ann. § 893.55(1) (2008); Ala. Code § 6-5-540 (2023); Fla. Stat. Ann. § 766.201(1)(a) (2003).

¹³⁵ See Lacey Fosburgh, Doctors Limit Care In Protest on Coast, N.Y. Times, May 2, 1975, https://www.nytimes.com/1975/05/02/archives/doctors-limit-care-in-protest-on-coast-doctors-cut-care-in-coast.html (reporting that California doctors struck in protest of rising malpractice insurance premiums and refused to render non-emergency care to patients).

¹³⁶ W. Va. Code Ann. § 55-7B-1 (2015).

¹³⁷ See, e.g., Md. Code Ann., Cts. & Jud. Proc. § 3-2A-01(f)(1) (West 2005) (defining “health care provider” as “a hospital, … a medical day care center, a hospice care program, an assisted living program, a freestanding ambulatory care facility …, a physician, an osteopath, an optometrist, a chiropractor, a registered or licensed practical nurse, a dentist, a podiatrist, a psychologist, a licensed certified social worker- clinical, and a physical therapist, licensed or authorized to provide one or more health care services in Maryland”). But see N.D. Cent. Code § 32-42-01(6) (1995) (a health care provider is “a person who is licensed, certified, or otherwise authorized by the law of this state to administer health care in the ordinary course of business or practice of a profession) (emphasis added); Mont. Code Ann. § 25-9-411(5)(b) (1995) (“‘Health care provider’ means a physician, dentist, podiatrist, optometrist, chiropractor, physical therapist, or nurse licensed under Title 37 or a health care facility licensed under Title 50, chapter 5”).

¹³⁸ See William M. Sage, The Forgotten Third: Liability Insurance and the Medical Malpractice Crisis, 23 Health Affs. 10, 15-17 (2004).

¹³⁹ See Laurie Garrett, The Malpractice Crisis Care Bows to Costs Insurance Rates Are Driving Obstetricians from the Delivery Room in Record Numbers, Newsday, July 12, 1988, available at 1988 WLNR 201089; Rosemary Goudreau, Doctors Shun Pregnant Woman’s Case Patient’s Epilepsy Marks Her As High Malpractice Risk, Orlando Sentinel, Jun. 8, 1986, available at 1986 WLNR 1473232.

¹⁴⁰ Id; Wis. Stat. Ann. § 893.55(1d)(a) (2008) (finding that noneconomic damage caps are necessary to alleviate the effects of the malpractice practice “[b]ased upon documentary evidence, testimony received at legislative hearings, and other relevant information”); Neb. Rev. Stat. Ann. § 44-2801(1) (1976) (declaring that malpractice reform “is in the public interest that competent medical and hospital services be available to the public in the State of Nebraska at reasonable costs”) (emphasis added).

¹⁴¹ Phillips, 647 S.E.2d at 927.

¹⁴² S.C. Code Ann. § 15-32-210(5) (2005).

¹⁴³ Williams, 816 S.E.2d at 566.

¹⁴⁴ N.C. Gen. Stat. Ann. § 90-21.11(1) (2017); W. Va. Code Ann. § 55-7B-2(g) (2022).

¹⁴⁵ W. Va. Code Ann. § 55-7B-2(g) (2022); Utah Code Ann. § 78B-3-403(13) (West 2022).

¹⁴⁶ W. Va. Code Ann. § 55-7B-1 (2015); Utah Code Ann. § 78B-3-402(1) (West 2008).

¹⁴⁷ See Platts, 947 P.2d at 662; Phillips, 647 S.E.2d at 927.

¹⁴⁸ Neb. Rev. Stat. Ann. § 44-2801(1) (1976); Colo. Rev. Stat. Ann. § 13-64-102 (2003); Wis. Stat. Ann. § 893.55(1d)(a) (2008); Utah Code Ann. § 78B-3-402(1) (West 2008).

¹⁴⁹ See Phillips, 647 S.E.2d at 928.

¹⁵⁰ Daniels & Martin, supra note 62, at 1072-1073.

¹⁵¹ Ctr. for Just. & Democracy, supra note 9.

¹⁵² Id.

¹⁵³ Daniels & Martin, supra note 62, at 1072-1073.

¹⁵⁴ See id.; Shreve et al., supra note 4, at 5.

¹⁵⁵ See Melody Gutierrez, California Gets New Rules Covering Medical Malpractice Payments. Here’s What Will Change, Los Angeles Times (May 23, 2022, 11:45 AM), https://www.latimes.com/california/story/2022-05-23/california-new-rules-medical-malpractice-payments-changes [https://perma.cc/AQ6Z-G8QP].