Pain by Jade R
Mesh Medical Device News Desk, June 9, 2017~ Consumers injured by medical malpractice may have more avenues to justice in court with the lifting of caps on pain and suffering in medical malpractice cases, a cornerstone of tort reform put in place in 2003 under then Gov. Jeb Bush.
In 2007, Susan Kalitan, a dental assistant in Broward County, Florida went into surgery for carpal-tunnel syndrome. Broward Health Medical Center medical personnel perforated her esophagus with tubes inserted to deliver anesthesia.
She complained of pain in her chest and neck but was discharged. The next day she was found unresponsive at home and had to undergo lifesaving surgery on her esophagus. She was put in a drug-induced coma for weeks and had to endure additional surgeries to be able to eat again. She continues to suffer from pain the the stress of her procedure.
Kalitan filed a lawsuit and was awarded $4.7 million in non-economic damages, (also known as pain and suffering), including $2 million for present pain and suffering and $2 million for future pain and suffering. Post-trial her jury award was reduced by $3.3 million.
Scales of Justice, WikiCommons
She sought to reinstate the jury award with an appeal to the 4th District Court of Appeals.
The appellate court ruled the damage caps were unconstitutional.
On Thursday, the Florida Supreme Court in a 4-3 decision, ruled that a law that puts a cap on pain-and-suffering damages in a medical malpractice case is unconstitutional and violates the Equal Protection Clause of the Florida Constitution.
The decision could open the doors to legal pursuit of medical malpractice cases which many attorneys had rejected because of the caps.
“We conclude that the caps on noneconomic damages … arbitrarily reduce damage awards for plaintiffs who suffer the most drastic injuries,” said the majority opinion shared by Chief Justice Jorge Labarga and justices Barbara Pariente, R. Fred Lewis and Peggy Quince.
“We further conclude that because there is no evidence of a continuing medical malpractice insurance crisis justifying the arbitrary and invidious discrimination between medical malpractice victims, there is no rational relationship between the personal injury noneconomic damage caps … and alleviating this purported crisis.’’
Disagreeing with the majority were Justices Ricky Polston and Charles Canady and Alan Lawson who said it is the Legislature that should make laws depending on the facts it finds.
The law was approved in 2003 by then Gov. Jeb Bush and the Florida Legislature. It caps damages at differing amounts depending on the number of claimants and the types of defendants and was part of a vigorous tort reform movement to rein in plaintiff attorneys and "runaway juries."
Trial attorneys, who represent the injured, opposed the damage limits.
The Sun-Sentinel reports, Florida Justice Association, a lobbying organization for trial lawyers, praised Thursday’s ruling. In a statement, interim Executive Director Paul Jess called it “a resounding victory for patients” and a “step forward that will promote safer health care in Florida.”
On the other side of the issue, doctors represented by the Florida Medical Association issued a statement that the association is disappointed with the Court’s ruling, “but given past decisions, it was not unexpected.”
As it is now amended it will lift the caps on personal injury lawsuits when there is pain-and-suffering. ###