Fla. Supreme Court rejects damage caps on medical malpractice

03/13/2014 3:25 PM

03/13/2014 9:58 PM

The Florida Supreme Court on Thursday rejected the centerpiece of the 2003 medical malpractice overhaul law, blasting the Legislature for creating an “alleged medical malpractice crisis” and concluding that the cap on wrongful death non-economic damages violates the state constitution’s equal protection clause.

The 5-2 ruling, written by Justice R. Fred Lewis, suggested that legislators created a crisis to push through the caps on damages in medical liability lawsuits which “has the effect of saving a modest amount for many by imposing devastating costs on a few.”

The caps limited payments for pain and suffering to $500,000 or $1 million, depending on the circumstances and the number of people involved. Lewis concluded the law unconstitutionally discriminates against “those who are most grievously injured, those who sustain the greatest damage and loss, and multiple claimants.’’

The decision will effectively remove the cap on so-called “non-economic” damages when someone dies because of medical malpractice. Victims whose cases were resolved between the time the law took effect in late 2003 and today, however, will have no recourse. The Florida Justice Association estimates there are more than 700 medical malpractice cases pending statewide.

“This is a monumental decision,’’ said Ken Sobel, a Fort Lauderdale trial attorney and past chairman of the FJA’s Medical Malpractice Bar. “It is being resoundingly applauded by our side of the bar, and quietly applauded by the defense bar.”

He said the law, a compromise drafted by legislators after a year-long debate, was widely considered unfair because a person injured because of medical malpractice was treated differently under that law than someone injured because of another kind of wrongful act or negligence.

The ruling, he predicted, will enhance the value of every case now pending, including those that do not involve a wrongful death claim.

The damage caps were initially pushed by former Gov. Jeb Bush, with the support of doctors, hospitals and insurance companies who viewed trials lawyers as their political nemesis. They argued the reforms were needed to curb the explosion of medical malpractice costs, which they said were forcing doctors to leave Florida or stop providing high-risk services.

The Florida Medical Association said Thursday that the damage caps have since helped reduce medical malpractice premiums and that the ruling would hurt the state’s ability to attract doctors.

“This is another example of the Supreme Court legislating from the bench and it is offensive that activist judges have taken the place of elected officials,” said Jeff Scott, FMA general counsel.

Sen. Tom Lee, R-Brandon, who helped negotiate the compromise between the Senate, House and governor during the summer of 2003, after three special legislative sessions, said he remembers the debate “as if it was yesterday.”

The Senate was sympathetic to the trial lawyers, and the House and governor sympathized with the doctors. One of the most stark disagreements was over the equal protection issues, Lee said.

“The Senate ultimately capitulated to the governor and the House,’’ Lee told the Herald/Times. “It looks like, in 2020 hindsight, we could have avoided a lot of acrimony.”

The case was brought by the family of 20-year-old Michelle McCall who died after she bled to death following a caesarian section for the birth of her a son in February 2006 at a Fort Walton Beach hospital.

McCall’s estate sued the federal government because she was part of a military family and was treated by U.S. Air Force medical staff. A federal judge agreed that McCall had not received proper care and found that her parents and son should receive $2 million in non-economic damages. But he award was reduced to $1 million because of the 2003 law.

The 11th U.S. Circuit Court of Appeals in Atlanta ruled that the damage limits did not violate the U.S. Constitution, but said the Florida Supreme Court should consider state constitutional issues.

The damages suffered by McCall’s parents were determined to be $750,000 each, and that her surviving son sustained damages determined to be $500,000. But when the court applied the cap, the damages were cut in half.

The court heard the case in February 2012 and spent more than two years reviewing it before rejecting the damage awards as arbitrary and unfair.

“The statutory cap on non-economic damages fails because it imposes unfair and illogical burdens on injured parties when an act of medical negligence gives rise to multiple claimants,’’ Lewis wrote.

Lewis rejected the Legislature’s rationale for the damage caps saying “it bears no rational relationship to a legitimate state objective.”

“The Florida Legislature attempted to justify the cap on non-economic damages by claiming that ‘Florida is in the midst of a medical malpractice insurance crisis of unprecedented magnitude’,” he wrote.

He cited statistics that showed that during the purported medical malpractice crisis “the numbers of physicians in Florida were actually increasing, not decreasing” and noted: “Even the Task Force whose report was relied upon by the Florida Legislature employed extremely equivocal language and speculation when describing the existence of a crisis.”

Justices Peggy Quince, Barbara Pariente and E.C. Perry agreed with Lewis that the law was unconstitutional, but wrote a separate opinion challenging his critique of the Legislature, calling it an unprecedented “expansive, independent review.”

The justices, however, agreed on the main finding. Wrote Pariente: “there is no evidence of a continuing medical malpractice crisis that would justify the arbitrary reduction of survivors’ noneconomic damages in wrongful death cases based on the number of survivors.”

Justice Jorge Labarga concurred with Lewis’ opinion. Justice Ricky Polston dissented with the majority and wrote his own opinion, in which Justice Charles Canady concurred.

Polston said that the caps on non-economic damages were justified because they “rationally related to the legitimate state interest of decreasing medical malpractice insurance rates and increasing the affordability and availability of health care in Florida.”

The American Tort Reform Association, which along with the state and federal Chambers of Commerce have spent millions of dollars on political campaigns to push for damage caps in Florida and other states, called the decision a narrow ruling that applies only to wrongful death claims. They suggested the law could be fixed this legislative session.

“The court could have struck down limits on noneconomic damages more broadly but it didn’t do that,’’ said spokesman Darren McKinney. “Instead, the decision seems fairly narrow, dealing strictly with wrongful death lawsuits involving multiple claimants.

Lee, the current Senate Judiciary Committee chair, said he was skeptical whether another damage cap could pass before the end of the 60-day session in May. “It’s getting awful late to do much,’’ he said.

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