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Florida Supreme Court Removes Non-Economic Damages Cap

April 9, 2014

Last month, Florida’s Supreme Court attacked the state senate for creating what one justice called an “alleged medical malpractice crisis.” The court was referring to the legislative “tort reform” package first formulated in 2013 which placed caps on non-economic damages i.e. compensation for pain and suffering in catastrophic cases and wrongful death claims. Florida’s cap limited such awards to $500,000 or $1 million depending upon the situation and number of individuals involved.

The Miami Herald reports that the majority decision in McCall vs. United States of America, which was authored by Justice R. Fred Lewis, states that these measures have “the effect of saving a modest amount for many by imposing devastating costs on a few.” Lewis goes on to claim that the law is unconstitutional because it unfairly disadvantages “those who are most grievously injured; those who sustain the greatest damage and loss, and multiple claimants. […] 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.”

Caps on damages violate the fundamental constitutional right of equal protection, which states plainly, that all citizens and all victims of negligence should have equal footing under the law. Echoing this sentiment is Feldman Shepherd attorney Scott Vezina, who writes that in Florida, “The Court recognized that decisions made by juries should not be limited by anything other than the severity of the injury, the weight of the evidence, and the ‘push and pull’ of the advocacy system.”

Though this original legislation was passed over a decade ago, the Supreme Court case is named for the family of Michelle McCall, who bled to death after undergoing a caesarian section during the birth of her son in February 2006. Eventually, after several years, McCall’s family was awarded $2 million in non-economic damages, which was automatically reduced to $1 million because of the tort reform law from 2003. Her family waited over two years for this decision since the case was originally argued before the state Supreme Court in 2012.

Tort reform packages resembling those in Florida have passed in states like Maryland, Michigan, Texas, Ohio, and California, and these are often accompanied by arguments that so-called frivolous lawsuits have caused health costs to rise and doctors to abandon practices. As data has proven over the years, however, these arguments are inaccurate: researchers in Texas “found absolutely no evidence that tort reform saved money” there. Similarly, Ohio, which passed a tort reform package in 2004, saw medical insurance premiums rise more quickly than in neighboring Kentucky, which has not passed such legislation .

In his decision, Justice Lewis suggests that in the midst of the squabble over passing these laws, the number of physicians in the state was actually increasing and not decreasing. Nationwide, data from 2009 indicates that malpractice costs represent only 0.46% of total health care spending in the United States.


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