Tuesday, August 14, 2018
Politics

Florida Supreme Court tosses out medical malpractice cap on damages

TALLAHASSEE — 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 noneconomic 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 noneconomic 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. "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 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.

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.

The case was brought by the family of 20-year-old Michelle McCall who died after she bled to death following a caesarean section for the birth of her 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 noneconomic 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 court heard the case in February 2012 and spent more than two years reviewing it before rejecting the damage awards as arbitrary and unfair.

In its ruling, the court cited statistics showing 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."

Justice Jorge Labarga concurred with Lewis' opinion.

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."

Chief Justice Ricky Polston dissented with the majority and wrote his own opinion, in which Justice Charles Canady concurred.

Polston said that the caps on noneconomic 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."

Sen. Tom Lee, R-Brandon, who helped negotiate the 2003 compromise between the Senate, House and governor, said he remembers the original debate "as if it was yesterday."

The Senate was sympathetic to the trial lawyers, and the House and governor sympathized with the doctors.

Lee, who is now Senate Judiciary Committee chair, said he was uncertain another damage cap could pass this session. "It's getting awful late to do much," he said.

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