First of all we have to define damages.  Damages are defined as monetary compensation for loss or injury to person or property.  There are essentially two types of damages in a medical malpractice case. The terms have changed over the years but damages are currently named economic damages and non-economic damages.

Economic damages are essentially anything you can place a dollar sign in front of.  In medical malpractice cases this includes compensating the victim for monetary damage including medical bills, lost wages and other miscellaneous costs.  Medical bills include both past and future medical costs.  For example, if a person has their leg amputated as a result of medical malpractice the past medical bills for the unnecessary amputation are recoverable.  The injured person would also require future medical costs including a prosthesis for example.  These future medical costs are also recoverable as compensation.  Lost wages are also recoverable, both past and future.  In the amputation example the person probably lost wages while he recovered from the amputation.  Also recoverable are wages forgone as a result of the amputation.  If the individual had been a football running back he would be probably entitled to claim future lost wages as well.

Non-economic damages are the intangibles.  Essentially losses that you cannot put a dollar sign in front of.  Staying with the example of the unnecessary leg amputation as a result of medical malpractice it would be obvious that person endured pain as a result of the amputation.  Pain is a real injury and should be compensated.  The loss of a leg seriously alters a person's sense of self and that is a real loss and should be compensated.  The loss of a career is a real loss and should be compensated. It is sometimes to difficult to determine the monetary value of the the intangible loss but they are real and need to be compensated.

Legislators across the United States have introduced legislation that limits the amounts of money that juries can award for non-economic damages.  The question is whether the placing of such limits is constitutional.  The Seventh Amendment (Amendment VII) to the United States Constitution, which is part of the Bill of Rights, codifies the right to a jury trial in certain civil cases.  The Seventh Amendment reads:

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

The Seventh Amendment was meant to act as a check on the abuse of power by the government.  Without going into technical legal argument the main thrust of the Seventh Amendment is to restrict the interference of government into the decisions of juries.  The idea is that juries are in the best position to determine what monetary compensation is the correct amount.  Once decided there should be no reexamination of the amount and the verdict should be left alone.

What the jury decides should not be later changed by the Court or by government legislation that infringes on the right to trial by jury.

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