Several states have set their malpractice caps considerably higher than California's because of worries that they affected poorer patients the most. Some state courts have begun to examine the fairness of their malpractice laws, especially those not tied to inflation. California lawmakers have rarely reconsidered the state's malpractice legislation. Yet an analysis of state court records, physician payment data and insurer financial records suggests that the cap is increasingly preventing families such as the Stewarts from getting their day in court.

Some families who succeed at trial in California are often surprised at how little money they see in the end. Becky Dessenberger's 2-year-old son, Jacob, died at Children's Hospital in Oakland in 2004 after surgery to repair a foot. Her son, who was suffering from bronchitis, was given a high dose of pain medication though the drug is known to cause slower breathing. He died the next day. In 2006 the family settled with the hospital, which acknowledged no wrongdoing, for just under the $250,000 cap. After deducting for trial costs and lawyer fees, Dessenberger, 36, of Suisun City, said the family received "a little over" $100,000. Dessenberger said no money would help ease her grief, but the small amount felt to her and her family like a slap in the face. "Because he was a baby, this is all he was worth," she said. "I think it is horrible. I don't think it's fair."