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Caps on Pain and Suffering

Caps on Pain and Suffering

CAPS ON PAIN AND SUFFERING IN MEDICAL MALPRACTICE LAWSUITS THROWN OUT

By Jane Musgrave (Click here for link to original Palm Beach Post article)
Palm Beach Post Staff Writer

WEST PALM BEACH –

In a sweeping indictment of the Florida Legislature’s justification for limiting the amount people can recover in medical malpractice lawsuits, the state Supreme Court on Thursday declared the decade-old caps unconstitutional.

The 5-2 decision, years in the making, was immediately hailed by trial attorneys as a victory for victims of medical mistakes and decried by doctors who say it will eventually threaten access to health care for all state residents.

“The real losers in this isn’t the Florida doctor. It’s the patients,” said Dr. Alan Pillersdorf, a Palm Springs plastic surgeon and former president of the Palm Beach County Medical Society. “Every time there’s a very complicated case, the doctor is going to have this hanging over this head. He’s going to shy away from very difficult cases. He’s going to shy away from poor people. You’ve unleashed the Florida trial bar on the population.”

Trial attorneys disagreed. Good doctors have nothing to fear, they said. The ruling will only assure that those who lose loved ones or are permanently maimed as a result of medical mistakes are properly compensated for their losses.

“This is a victory for everyone,” said attorney Julie Littky-Rubin of West Palm Beach.

At issue was caps the legislature imposed in 2003 in response to what lawmakers described as a medical malpractice insurance crisis that was driving doctors from the state. Convinced the skyrocketing rates were based on multi-million-dollar jury awards, lawmakers limited the amount for pain and suffering to $500,000 for injuries and $1 million if someone died or was left in a permanent vegetative state.

In a 42-page ruling, Justice R. Fred Lewis said it isn’t fair to make a small group of people pay to solve a crisis that he argued never existed. Further, he wrote, the caps unfairly punish people with big families. Both situations, he said, violate the equal protection clause of the state constitution.

If, for instance, a husband loses his wife to medical malpractice and they have no children, he can receive $1 million for pain and suffering, known as “non-economic damages.” However, if that same husband has four children, the five people have to share the $1 million award.

“At the present time, the cap on non-economic damages serves no purpose other than to arbitrarily punish the most grievously injured or their surviving family members,” he wrote.

The most controversial part of Lewis’ opinion – one that was rejected by three justices who otherwise shared his view that the law should be thrown out – was his claim that there was no medical malpractice insurance crisis to begin with and, even if there had been, the caps didn’t solve it.

In a concurring opinion, Justice Barbara Pariente objected to Lewis’ lengthy analysis about whether the legislature was justified in imposing the caps. “I emphasize that I have no reason to question the plurality’s excellent scholarship regarding the flaws in the Legislature’s conclusions as to the existence of a medical malpractice crisis,” she wrote in the opinion that was joined by Justices Peggy Quince and James E.C. Perry. However, she said, there is no precedent for the court to conduct such an exhaustive investigation on its own.

In a dissent, in which he argued that the caps are constitutional, Chief Justice Ricky Polston shared Pariente’s assertion that Lewis overstepped his bounds by second-guessing the legislature’s analysis. “This court is not suppose to conduct an independent review of available data,” he wrote in the dissent that was joined by Justice Charles Canady.

Roughly 20 pages of Lewis’ majority opinion, which was endorsed in its entirety by Justice Jorge Labarga, was devoted to debunking the need for the caps. He quoted reports that showed that doctors weren’t fleeing the state in 2003, as lawmakers claimed. Instead, he said more doctors had begun practicing in Florida. He quoted studies that found that out-of-court settlements, not juries, were responsible for payments in medical malpractice cases of $1 million or more.

He quoted an insurance rating company that found that malpractice insurance rates increased more in states that have caps as compared to rates in states that don’t limit jury awards.

The crisis, he argued, was created by insurers and, because the legislature didn’t force them to lower rates, they have become the beneficiaries as well. “Between the years of 2003 and 2010, four insurance companies that offered medical malpractice insurance in Florida cumulatively reported an increase in their net income of more than 4,300 percent,” Lewis wrote.

The case before the court involved the February 2006 death of 20-year-old Michelle McCall, who died of complications from severe bleeding after giving birth in a Panhandle hospital. Most attorneys said they expect the ruling will eliminate the caps in cases involving injury as well. Hundreds of pending cases and those on appeal will be affected.

Boca Raton attorney Michael Mittlemark, who represents doctors accused of malpractice, predicted that the Supreme Court won’t have the last word on how to protect physicians and hospitals from lawsuits. He said he expects the legislature to review the decision and figure out another way to curb sky-high jury verdicts. “It’s always the legislature’s prerogative to put a limit on damages,” he said.

Others agreed that the ruling will surely reignite the long-running debate over whether bad physicians, greedy lawyers or profit-hungry insurance companies are to blame.

West Palm Beach attorney Stephan LeClainche said he, like other lawyers who represent victims of medical malpractice, have long known the caps were unconstitutional. “But it’s politics and people with a political agenda,” he said. “That’s what the legislature is. It’s special interest groups pushing legislation that benefits them.”

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