The 2003 bill, signed into law by then-governor Jeb Bush placed a cap of $500,000 on what are known as non-economic damages in medical malpractice cases, and a cap of $1 million if the injuries caused by medical malpractice were what they called catastrophic.moreThe main purpose of this bill was supposedly to reduce medical malpractice premiums. As our Fort Lauderdale medical malpractice attorney can explain, very wealthy insurance companies have been raising premiums on all customers in recent decades, because that is simply what they do. This is true of most types of insurance, including health insurance for patients and medical malpractice insurance for hospital and doctors.

While the insurance companies may argue that they are losing money, their quarterly profit and loss statements show that is clearly not the case. They are raising prices because they can.

Through a lot of lobbying efforts, the insurance companies got certain politicians to work to cap damages in medical malpractice cases. This means that when a patient is injured and has a large pain and suffering award given by a jury, the amount will get slashed to the limits of the cap.

The theory was that this will cause medical insurance premiums to go down, and this will help doctors who supposedly could no longer afford to practice medicine. This wasn’t the case, as discussed in a recent news article from Space Coast Daily. Since the law took effect, medical malpractice premiums in Florida have increased to where they are the highest in the nation. Now that the state supreme court has rejected this tort reform law, they will probably go up again, because raising premiums is what insurance companies do.

The Florida Supreme Court found that this tort reform law violated the constitution, as it was arbitrary and capricious. It hurt plaintiffs who were seriously injured as a result of medical practice, and it did not lower insurance premiums as the law was allegedly intended to do. In fact, as we know, the premiums went up during this time.

This is not the first time the court had addressed this law. Three years ago, the portion of the law that capped damages in cases where the medical malpractice resulted in death of a patient was struck down, and this decision will serve to get rid of the rest of the law. Specifically, the court held that the arbitrary and capricious nature of the law violated the equal protection rights of patients who were injured as a result of the caps that tended to only serve the interests of the insurance company. This result should really come as a surprise to no one, because tort reform is generally just a gift to very wealthy insurance companies at the expense of personal injury victims.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

In 4-3 Decision, Florida Supreme Court Rules 2003 Tort Reform Law Unconstitutional, June 10, 2017, By Dr. James Palermo, Space Coast Daily

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Plaintiff went to the doctor for repair of a hernia. When he made his first appointment with the surgeon, he was handed a huge stack of paperwork to sign, which defendant doctor’s office routinely presents to new patients, along with other documents, prior to the first time the doctor meets with the patient. Included in that stack of papers was a legal document, known as an arbitration agreement, in which plaintiff signed away his right to have any future disputes with the doctor – including those pertaining to medical malpractice – resolved by a court of law. Instead, any disputes would be handled through a private arbitration firm.

This practice has become increasingly common, and the Florida Supreme Court encountered this very issue with regard to medical malpractice claims in a 2013 case – and reached a very similar conclusion.

In the Florida case, a man sought treatment from defendant doctor. In a four-page financial agreement he signed prior to surgery, there was a short provision that he initialed that was an arbitration agreement. It indicated that any claim of negligence relating to diagnosis, treatment or care of patient had to be resolved by arbitration. Plaintiff signed this. He then underwent surgery, during which the surgeon reportedly lacerated a vein during surgery. However, this was not revealed to plaintiff following the procedure and he was sent home. Two days later, he was rushed to the emergency room for severe pain. It was there a CT scan revealed the damage. The man remained hospitalized until his death.

When his wife filed a medical malpractice lawsuit on her late husband’s behalf, the doctor’s office sought to enforce the arbitration agreement, arguing that it was binding. Although the trial court ruled in favor of the defendant, it noted “substantial reservations.” The First District Court of Appeal affirmed, but the state supreme court reversed. In its ruling, the court held that the agreement was void as to public policy.

The court held that under the Medical Malpractice Act provision that provides for a voluntary binding arbitration agreement in medical malpractice claims, the key word here is “voluntary.” Arbitration agreements can provide incentives for both claimants and defendants by reducing attorney’s fees, litigation costs and delays. However, the court ruled in this case that the the “substantial incentive” for plaintiff in that case was removed because the agreement wasn’t voluntary, and it also removed the concession of liability on the part of the provider. Without any incentives to claimant, the agreement was nothing more than an attempt to limit the injured’s rights and circumvent the proper remedies.

In the more recent North Carolina case, that agreement too was void against public policy. Plaintiff admitted to signing the agreement, even though he hadn’t read it, but the court held that by that point, he had placed trust in his doctor. He considered the paperwork a formality. The arbitration agreement was given to him in a stack of other medical paperwork that was necessary to complete before treatment and there was no explanation given to him by office staffers that this was a special agreement that would require him to forfeit certain legal rights. Further, the agreement doesn’t indicate that by signing it, the patient waives his or her right to a trial. There is nowhere in the agreement that the words, “judge,” “jury” or “trial” appear, and it does not indicate plaintiff can seek counsel from a lawyer before signing it.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

King v. Bryant, Jan. 27, 2017, North Carolina Supreme Court

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