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Here is my Letter to the Editor, word for word, that was published by the Miami Herald on June 25, 2014:
WRONGFUL DEATH CAP
Re the June 19 letter DeGennaro the best person to lead Miami VA: While Barth Green may be a prominent South Florida doctor, he is hardly a legal scholar. While writing in support of Dr. Vincent DeGennaro, his “close friend and respected colleague,” he tries to bolster his argument by adding gratuitous debunked comments about doctors fleeing Florida because of its torts laws.
In McCall v. United States of America, the Florida Supreme Court declared that the statutory cap on noneconomic damages in medical malpractice cases was unconstitutional. (In reaching this conclusion, the court determined that the numbers Governor Jeb Bush and his cronies presented to the Florida Legislature to demonstrate a medical malpractice crisis were cooked. In other words, the numbers were phony.)
As important and right as this decision is, a gigantic and dangerous wrong remains alive within the medical malpractice civil justice system.
Florida’s Wrongful Death Act is the civil law blueprint for addressing a wrong resulting in death caused by negligence. Section 768.21 Florida Statutes lays out who may be compensated for the loss of a loved one and by what measure. In all but one type of case where death has resulted from negligence, the children, no matter their ages, of a parent who has died without leaving behind a surviving spouse may recover from the wrongdoer for pain and suffering and the loss of the decedent’s companionship and protection. (See this blog for an easy to understand wrongful death survivors and damages chart.)
The one exception? For death caused by medical malpractice.
On March 13, 2014, the Florida Supreme Court, by its decision in McCall v. United States of America, exposed the fraud of “Tort Reform” perpetrated on the American public by Karl Rove, George Bush, Jeb Bush and others of that ilk.
Michelle McCall, a U.S. military veteran, died from shock and cardiac arrest as a result of severe blood loss after giving birth. She was removed from life support on February 27, 2006. A medical malpractice lawsuit was brought by her survivors, Ms. McCall’s parents and the newborn child. Following a lengthy trial, the district court concluded that the survivors’ noneconomic damages, or nonfinancial losses, totaled $2 million, including $500,000 for Ms. McCall’s son and $750,000 for each of her parents.
However, the district court limited the Petitioners’ recovery of wrongful death noneconomic damages to $1 million upon application of section 766.118(2), Florida Statutes (2005), Florida’s statutory cap on wrongful death noneconomic damages based on medical malpractice claims.
The Petitioners (the survivors) challenged the arbitrary damage caps of 766.118 by appealing to the United States Court of Appeals for the Eleventh Circuit. Even though the survivors lost the appeal, the Eleventh Circuit asked the Florida Supreme Court to take jurisdiction, pursuant to pursuant to Art. V, § 3(b)(6), Fla. Const., because there was no controlling precedent of the supreme court of Florida. The supreme court accepted the invitation.
Not willing to accept the voice of the people as expressed through jury verdicts, the Florida Legislature has imposed arbitrary limits on how much individuals harmed by medical negligence/malpractice can be compensated for their losses.
Florida law recognizes two types of recoveries for people harmed by negligence, economic and non-economic. Economic losses include past and future income and medical expenses. In broad terms, non-economic losses are pain and suffering.
America’s jury system has its roots in Mosaic Law — Mosaic Law and American Jurisprudence. The system works.
Parties to lawsuits present evidence at trial. Following instructions from trial judges on how to weigh and consider evidence, juries deliberate carefully and thoughtfully behind closed doors — see, 12 Angry Men (1957 film). For the most part, juries get it right. On the rare occasions they don’t, their mistakes are corrected by trial judges and appellate courts.
Civil jury verdicts enable the powerless to hold the powerful accountable for wrongdoing. Florida’s Republican-controlled Legislature opposes this principle, and makes its view known every legislative session with proposed legislation aimed at neutralizing the importance of civil jury verdicts. (But for push-back from organizations like the Florida Justice Association, of which I am a proud member, the Legislature’s efforts at neutralization would be even more severe, the political equivalent of castration.) Arbitrary and capricious, one-size-fits-all damage cap limits, coming under the guise of “Tort Reform” or justified by the myth of a “Medical Malpractice Crisis” — (See this blog: Medical Malpractice Myths — are a particular legislative favorite.
Is the loss of a loved one by medical malpractice less painful and catastrophic than such a loss by some other form of negligence? Either the Florida Legislature thinks so, or else it purposely created an arbitrary and capricious law to insulate medical providers from being held fully accountable for their negligence. The law in question is Section 768.21, of Florida’s Wrongful Death Act.
768.21 says who can make a civil damage claim arising from the death of a loved one through the negligent act of another party. Subsection (3) provides that “[M]inor children of the decedent and all children of the decedent if there is no surviving spouse, may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury.” Subsection (4) declares that “[E]ach parent of an adult child may also recover for mental pain and suffering if there are no other survivors.”
From time-to-time we publish in our blog letters and articles written by others on subjects of interest to us. Here are two excellent letters published in the March 1, 2013 issue of The Florida Bar News. Each addresses medical malpractice issues.
This is a response to Robert William Patton’s defense-oriented letter on med mal experts. I have done complex medical malpractice cases for plaintiffs for the past 40 years and never filed a “frivolous med mal case.”
The sole cause of medical malpractice is bad doctors and health care providers. Nothing has ever been done to attack and remedy that root cause. Over 100,000 patients a year are killed by medical malpractice. It is so bad now that every patient should have a “patient advocate” with him/her when entering a hospital. The “Public Citizen Health Letter” has rated Florida one of the 10 worst states for pursuing disciplinary actions against physicians four times since 2001. The Florida Agency for Health Care Administration is a joke. The only thing that keeps healthcare providers accountable is med mal suits.
The defense bar and other conservative elements have put up every obstacle possible to prevent plaintiffs from filing these suits. The biggest obstacle is the presuit requirements, which are designed for doctors to investigate the case and, hopefully, settle them before suit is filed. After filing hundreds of medical malpractice cases, I have never had a plaintiff make a settlement offer during the presuit stage, before the complaint is filed. The defense always comes up with some “expert” to file an affidavit to refute the plaintiffs claims in pre-suit.
Florida’s Wrongful Death Act, located in sections 768.16 through 768.26 of Florida’s statutes, controls legal actions arising from the loss of life on account of a tortfeasor’s negligence. The Act refers to those who may recover damages for the loss as “survivors.”
Survivors can be spouses, children and parents. The Act allows survivors to recover the decedent’s medical expenses and future lost earnings and accumulations, and to be compensated for their own mental anguish.
Needless to say, the loss of a parent or child causes substantial mental anguish. Inexplicably, Florida’s Legislature has carved out an exception for mental anguish damages caused by medical negligence. Specifically, the Act bars
- compensating adult children for mental anguish caused by the death of a parent
- compensating parents for mental anguish caused by the death of an adult child
Since section 768.18(2) of the Florida Statutes defines minor children as being children under 25 years of age, notwithstanding the age of majority, the Wrongful Death Act’s exceptions apply in the case of children 25 years of age and older.
These exceptions are arbitrary and capricious. Unfortunately, they have been upheld by the Florida Supreme Court. See Mizrahi v. North Miami Medical Center, Ltd., 761 So. 2d 1040 – Fla: Supreme Court 2000.
In addition to depriving survivors of their rightful due, these outrageous exceptions create a dangerous environment for many people who receive medical care in Florida. Strong and fair medical negligence laws demand accountability from providers and facilities. This promotes quality care. Weak laws allow the opposite. Making matters worse, the exceptions create a financial incentive for death as the prefered outcome following a serious malpractice event. Under Florida’s civil justice system, those who survive their medical malpractice injuries can be far costlier than those who do not. Because money has a way of making people do rotten things, this is a troubling scenario.
Our previous blog addressed Florida’s statutory scheme, known as NICA (Florida Birth-Related Neurological Injury Compensation Association, Sections 766.301-766.316 Florida Statutes (1988), for providing “compensation, on a no-fault basis, for a limited class of catastrophic injuries that result in unusually high costs for custodial care and rehabilitation.” See Section 766.301(2) Florida Statutes (1988). NICA is the exclusive remedy in cases that meet its requirements. Because its remedies may not be adequate to cover the damages, our blog encourages lawyers to make every effort to avoid NICA where the brain injury was caused by medical negligence. We explained that the remedies available under Florida’s traditional tort system often outweigh those under NICA.
Where NICA can and should be avoided to pursue medical malpractice remedies, the Plaintiff must prove fault and damages to prevail. This blog addresses some of the common causation and damage issues.
Hypoxia, or a lack of oxygen, is the leading cause of brain injury in newborns. During labor, the uterus contracts in order to push the baby through the birth canal. (Pitocin, a drug used to induce labor, intensifies uterine contractions.) Throughout the labor process, obstetrical personnel are able to monitor the fetus’ heart rate and well being through electronic fetal monitoring. (Every labor and delivery unit in every hospital in the country, uses electronic fetal monitoring.) As the labor progresses and the contractions become stronger and more frequent, the baby is exposed to tremendous amounts of stress. As the stress mounts, underlying problems, such as a knotted or twisted umbilical cord, or a placental problem, become heightened. Time is of the essence when a problem is exposed. Any breakdown in the monitoring process, such as through inattention or misinterpretation, can prove costly. Moreover, proper lines of communication must be maintained between the nurses and the obstetrician. A failure to properly alert the physician or of the physician to respond appropriately, can have critical consequences.
The first step in investigating a brain injured baby medical malpractice case is to have the fetal monitoring strips reviewed by an expert for evidence of hypoxia, whether it was documented by the health care providers, and whether they acted appropriately.
Medical malpractice defendants will try to deflect responsibility by blaming the brain injury on something other than a lack of oxygen. Other excuses include infection and inflammation.
Claiming that medical malpractice premiums being charged to obstetric physicians were becoming dangerously high, in 1988 the Florida Legislature enacted legislation creating the Florida Birth-Related Neurological Injury Compensation Association (“NICA”) (Florida Statutes 766.301 – 766.316). The Legislature’s stated intent was to reduce medical malpractice claims by providing “compensation, on a no-fault basis, for a limited class of catastrophic injuries that result in unusually high costs for custodial care and rehabilitation.” Section 766.301(2) Florida Statutes (1988).
NICA sounds good on paper. However, in practice NICA all too often falls short for the neurologically injured infants who require a lifetime of care, and their families.
The differences between the type and amount of compensation available under NICA and a medical malpractice claim can be substantial, with the upside of a successful malpractice claim being of far more benefit to the victim. However, NICA is the exclusive remedy for claims meeting its requirements. In addition, although NICA is a no-fault system, it is administered in an adversarial way to deny and limit benefits, including making families first seek and exhaust benefits under private insurance policies and government programs, an often daunting task under circumstances for less trying than while dealing with the needs of a brain-injured child. There are numerous other hurdles that make NICA far less appealing in practice than in theory.