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Damage Caps and Access to Justice: Lessons from Texas

April 2018

From Oregon Law Review

This article considers the impact of damage caps on noneconomic damages and meaningful access to justice for plaintiffs, specifically in medical malpractice and nursing home cases. Complex, expensive, and high-risk cases such as medical malpractice require an experienced lawyer able to finance and handle the case. However, the changes in damage caps dramatically reduce the viability of legitimate health care cases and reduces formal access to justice for plaintiffs without substantial economic damages.

The authors of this article consider current legislation in Texas that instated this damage cap and its detrimental effects on access to justice.  This analysis of Texas legislation is used to inform an evaluation of the Oregon Supreme Court’s decision in Horton v. Oregon Health Science University, which sets up a future ruling on the constitutionality of damage caps.