|
Spring 2012
IN THIS ISSUE
d&G Lawyer News
|
CASE ALERT: Constitutionality of Medical Malpractice Non-economic Damages Caps to be reviewed by the Florida Supreme Court
By: Eric D. Nowak
The Florida Supreme Court is reviewing the constitutionality of non-economic caps, such as pain and suffering damages, in medical malpractice cases. Section 766.118(2)(a), Florida Statutes, provides for a cap on non-economic damages that a medical malpractice plaintiff can be awarded. This statute caps non-economic damages at $500,000 per claimant. This amount is increased to $1 million per claimant if the negligence results in the injured party being in a permanent vegetative state or results in death. §766.118(2)(b), Fla. Stat. Furthermore, 766.118(2)(c) caps the total amount of non-economic damages recoverable by all claimants from all practitioner defendants to $1 million.
On May 27, 2011, in the Estate of McCall ex. rel. McCall v. United States, 642 F.3d 944 (11th Cir. 2011), the Eleventh Circuit upheld a decision from the Northern District of Florida finding caps on non-economic damages in Medical Malpractice cases constitutional under the U.S. Constitution.
However, the 11th Circuit held that there was no controlling precedent from the Florida Supreme Court, under the Florida Constitution, and certified four questions to the Florida Supreme Court.1 The four issues certified by the Eleventh Circuit to the Florida Supreme Court are whether a statutory cap on non economic damages violates the following rights/provisions under the Florida Constitution: (1) equal protection, (2) a person’s right to access the courts; (3) a person’s right to trial by jury, and (4) separation of powers. The answer to these certified questions may have wide reaching social and political effects.
There does not appear to be clear answers to these certified questions. However, these issues have the potential to significantly alter health care providers’ exposure for acts of malpractice, insurance premiums for medical malpractice coverage, and the Legislature’s ability to limit a Plaintiff’s damages for an injury. Oral argument before the Florida Supreme Court has been set for February 9, 2012, so resolutions to these issues, and others, are soon to come.
Click here for a more detailed discussion
1 http://www.ca11.uscourts.gov/opinions/ops/200916375cert.pdf, pg. 2 and 18.
|
