Another Florida appellate court has struck down a state law that restricts the amount of money that can be awarded for pain-and-suffering in a medical malpractice lawsuit that results in injury. The Florida Supreme Court had already declared that medical malpractice damage caps on such cases resulting in death were not constitutional. However, the question of whether damages could be capped in cases that “only” resulted in injury was left unanswered.
Now, the 2nd District Court of Appeal joined the 4th DCA’s prior opinion, holding that these non-economic damages are also not constitutional. The Florida Supreme Court is still weighing the 4th DCA’s opinion on the issue.
This could result in the biggest change in Florida injury litigation in more than a decade. Two years ago, the Florida Supreme Court ruled in McCall v. U.S. that medical malpractice damage caps – imposed by a 2003 state law under then-Gov. Jeb Bush – were not constitutional in cases where the patient had died. Now, the 2nd DCA has ruled in Port Charlotte HMA v. Suarez that the same is true when the patient survives medical negligence. This backs the findings of the 4th DCA in North Broward Hospital District v. Kalitan.
F.S. 766.118 caps non-economic damages (i.e., those garnered for pain and suffering, loss of consortium, etc.) are not to exceed $500,000 per claimant. No defendant will have to pay more than $500,000 per claim for non-economic damages, though, no matter how many claimants there are.
Support for the 2003 legislative change was that doctors insisted big-money jury awards were driving up their insurance premiums and some were forced to retire, leave Florida or refuse to perform high-risk procedures (in turn limiting the availability of health care). Some called the problem “unprecedented.” However, the Florida Supreme Court in its analysis of the “alleged medical malpractice crisis,” found there was no rational basis for these assertions. Specifically, the existence of a medical malpractice crisis are “not fully supported by available data.” The number of physicians from 1991 to 2001 in Florida actually grew in both non-metropolitan and metropolitan areas (19 percent and 11 percent, respectively). So the number of doctors during this “crisis” was actually growing, not falling.
Plus, the Government Accountability Office found that of Florida medical malpractice lawsuits that resulted in payments of over $1 million over a 14-year stretch, only 7.5 percent involved a jury trial verdict. Further, more than 10 percent of the settlements with payouts of more than $1 million were resolved without a lawsuit ever being filed. Ultimately, only a small percentage of medical malpractice payments were the result of jury trial verdicts.
These facts cast serious doubt over the findings of the legislative task force that juries were responsible for a “medical malpractice crisis.” What’s more, the court was critical of language used by the task force that was highly speculative. For example, the court noted the task force indicated lawmakers “believed” that the alleged crisis “could get worse,” that premiums, “might become unaffordable,” etc.
In reality, prices for insurance premiums went up because insurance premiums had been under-priced for years and there was a dramatic drop in investment income for insurers. Tort reform changes had nothing to do with it.
So that brings us to the Suarez case. Plaintiff alleges her prematurely-born daughter did not receive proper treatment at a hospital in Port Charlotte when she was born in 2010. Today, the girl is fully-dependent on others, requiring 24-7 care for the rest of her life.
Her total damages awarded were $9.6 million, including $4 million in non-economic damages. However, that amount was reduced to $6.7 million. The hospital is seeking to further lower its obligation.
The Florida Supreme Court’s pending decision in the Kalitan case will prove the deciding factor.
Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.
Another appellate court finds med mal caps unconstitutional, Oct. 27, 2016, By Jim Rosica, FloridaPolitics.com
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