2010 Florida Legislature Further Curtails the Rights of Medical Malpractice Victims

scales of justice.jpgNot satisfied with the existing arbitrary damage caps on non-economic damages (e.g., pain & suffering) contained in Fla. Stat. 766.118 – presently under challenge in Estate of Michelle Evette McCall v. United States of America* as violating the Florida Constitution – Florida’s 2010 Republican-controlled legislature created additional barriers to the rights of individuals harmed by medical negligence.

Caps on non-economic damages for Medicaid patients. Contained in 766.118(6), Medicaid recipients harmed by medical negligence are limited to $300,000 in non-economic damages. The arbitrary cap applies regardless of the damage, including death and catastrophic injury (e.g., brain damage; paralysis).

Sovereign immunity granted to private medical schools and their employees providing services at teaching hospitals (primarily affects the University of Miami through its dealings with Jackson Memorial Hospital). The new measure is contained in F.S. 766.1115. I have blogged recently about the dangers associated with sovereign immunity – Sovereign Immunity and Florida Personal Injury Law. Sadly, the Florida Legislature has seen fit to extend the dangerous doctrine to private for-profit corporations.

*Michelle Evette McCall died in the hospital shortly after giving birth. A jury decided that her death was caused by the provision of medical services that fell below the professional standard of care. It awarded $2,000,000 in non-financial losses to Ms. McCall’s son and her parents. The verdict was reduced by the trial judge to $1,000,000 in accordance with Florida law. It is this ruling that is being challenged.

The challenges:
(1) The statutory cap on non-economic damages violates the right to equal protection under Article I, Section 2 of the Florida Constitution.
(2) The statutory cap on non-economic damages violates the right of access to the courts under Article I, Section 21 of the Florida Constitution.
(3) The statutory cap on non-economic damages violates the right to trial by jury under Article I, Section 22 of the Florida Constitution.
(4) The statutory cap on non-economic damages violates the separation of powers guaranteed by Article II, Section 3 and Article V, Section I of the Florida Constitution.

Similar caps have been challenged and struck down in other states. We can only hope that our Supreme Court exhibits the same enlightened thinking. In a civilized society there is no justifiable reason why a political body, subject to influence from the highest bidders, should be allowed to override the verdicts of thoughtful juries. Arbitrary damage caps do just that.
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Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.