Cap on Damages

History of The Cap on Noneconomic Damages

Commonly referred to as “the cap” in Maryland, by law, there is a maximum amount an injured party can receive for “non-economic” damages.  The cap applies only to noneconomic damages in personal injury litigation such as malpractice or accidents. Actual damages, such as medical bills or estimated future expenses as a result of the injury, are only limited by their actual or estimated amount and are not bound by any legislatively set amount. Even punitive damages are exempt from this statutory limitation. However, pain and suffering, inconvenience, loss of consortium, and disfigurement are all subject to a specified monetary cap.  Md. Code Ann. Cts. & Jud. Proc. 11-108.

Because the cap has a history of nearly three decades, personal injury actions are subject to different maximums depending upon when the cause of action—the point at which the patient became aware of the injury—arises.  A cap of $350,000 began on actions arising on or after July 1, 1986 and was increased to $500,000 to causes of action arising on or after October 1, 1994. The cap has risen $15,000 on October 1 each year since. Md. Code Ann. Cts. & Jud. Proc. SEC 11-108.  This timeline is key to determining not only the amount of the cap, but whether the cap applies at all; if even part of the injurious action by a medical practitioner occurred before July 1, 1986, the entire claim is not subject to the cap.  DiLeo v. Nugent, 88 Md.App. 59 (1991).

The cap was, like many in the U.S., designed to combat the rising amounts of noneconomic damages awards, which increased 300 percent nationwide from the 1960s to the 1980s.  Daniel Fisher, Maryland damages Cap Survives in Horrific Drowning Case, Forbes, September 24, 2010 (available at Such awards began topping $1 million by the 1990s. See Fisher.

When the Cap Applies

Though this cap applies to noneconomic damages in all forms of tort law, the Court of Appeals has emphasized its continued applicability to malpractice actions.  In a 2010 wrongful death malpractice action, the Court held the cap was appropriate, regardless of an arbitration waiver.  Lockshin v. Semsker, 412 Md. 257 (2010). Even where the action is brought in federal court, if the injury occurred in Maryland, the statutory cap still applies.  Lawson v. U.S., 454 F.Supp.2d 373 (D. Md. 2006).

Arguments supporting and opposing this limitation on noneconomic damages continue. The cap came under close scrutiny during and after the Court of Appeals heard a case involving the drowning death of a young child in a pool, the subject of the Forbes article referenced above.  DRD Pool v. Freed, 416 Md. 46 (2010).  The Court of Appeals declined to consider the plaintiff’s argument that the cap was unconstitutional, noting that the jury was still allowed the opportunity to weigh the facts, and thus did not deprive citizens to the right to a jury trial.

Groups such as the American Tort Reform Association seek to further reduce the cap on noneconomic damages to $250,000. They argue that the awards are arbitrary and juries lack objectivity due to the emotional nature of the subject. Available at This contentious debate is likely to continue, but it will be left to the legislature and judicial system to determine which position will ultimately succeed.

The Cap May Be Insufficient

Though the award amounts may seem high to some, it’s important to remember when large numbers apply.  The injuries involved often involve death, permanent loss of various life skills, or other irreparable harm caused by another party.  In all circumstances, if the cap has been applied, the other party was found to be entirely at fault.  If you have been in a horrific car accident causing your life to be forever changed, you may find the cap to be low.

Cap cases are relatively rare.  They are so rare, in fact, that our accident calculator does not take the cap into account.  Furthermore, juries can give whatever awards they see fit.  The damages awarded to the injured party by the jury are reduced after the fact to comply with the cap.