Court to Decide on Florida Medical Malpractice Caps

The fate of Florida’s caps on damages in medical malpractice cases now rests with the state’s high court after attorneys debated whether the caps are constitutional.

The Florida Supreme Court recently heard oral arguments in a case (Evette McCall v. United States of America SC11-1145) that addresses the politically-charged malpractice law, a signature achievement of former Governor Jeb Bush.

Enacted in 2003, the medical malpractice law places a $500,000 cap on non-economic damages, an amount that increases to $1 million in the event of a catastrophic injury or death. The cap for emergency services is set even lower at $150,000 not to exceed $300,000. In the event the negligence was committed by someone other than a licensed health care provider, the caps are set at $750,000 and $1.5 million, regardless of where the medical services were provided.

The case has its origins the 2006 death of Michelle McCall, who died of blood loss shortly after delivering a child. She was treated at Fort Walton Beach Medical Center. McCall’s family filed a medical malpractice suit and a jury awarded $2 million in non-economic damages for pain and suffering. However, the judge lowered the amount to $1 million, citing Florida law.

Speaking on behalf of McCall’s estate, attorney Robert Peck said that reducing the damages in McCall’s case from $2 million to $1 million violated her constitutional rights.

“To the extent that there is $1 million in compensatory injury that is not being compensated, there is a limit on the access to courts,” said Peck.

Daniel Lenerz, arguing on behalf of the state, would later rebut Peck’s argument, citing numerous other caps lawmakers have instituted. For example, governments are largely protected by sovereign immunity and injured workers are prevented from suing in civil courts and are compensation based on a schedule of benefits.

“Access to courts has not been denied,” said Lenerz. “Simply a limit has been placed on damages.”

The main issue to emerge in the case is whether the caps are justifiable at all.

When the caps passed in 2003, it was in response to a perceived crisis in the medical malpractice insurance market. Fewer insurers were providing the coverage and physicians said that rising premiums threatened their ability to treat patients.

Peck, however, argued that cases like McCall’s could not have been the root cause of the crisis. He said that 95 percent of all medical malpractice cases are settled without a trial and the median settlement is just $213,000.

Justice Barbra Pariente noted that the court routinely deferred to the Legislature when it comes to setting caps in legal cases. However, she raised the point of just how long those caps are legislatively defensible.

“Say it’s a mortgage foreclosure crisis and statutes pass and they restrict rights,” said Pariente. “Does that get to stay in the law forever? I mean, without it ever being questioned?”

Lenerz argued that that argument misses part of the legislative intent. Yes, he said, the caps were designed to solve a crisis and on that point they worked successfully. The state mandated a 7.8 percent reduction in medical malpractice rates and 18 new insurers entered the market. But the goal of lawmakers, he said, was not just to solve a crisis but ensure a stable market going forward.

“The suggestion that the crisis has abated because the reforms worked if taken to its conclusion would require this court to overturn this law,” said Lenerz. “That would send Florida into another crisis and require the legislature to act and it would perpetuate this boom and bust cycle that has afflicted medical negligence insurance.”