Recent Challenges to Caps on Non–Economic Damages

By Robert E. White, Jr.
President, First Professionals Insurance Company

The Florida legislature enacted a law in September 2003 to place caps on non–economic damages in medical malpractice cases. For Florida physicians, the success of the passage of this tort reform measure has had positive benefits in the form of lower medical malpractice insurance rates and a reduction in the number and severity of claims.

Non–Economic Caps

Caps on non–economic damages in all Florida court cases involving injury or death due to medical negligence is $500,000—regardless of the number of defendants—in suits against health care practitioner defendants (physicians and surgeons) and $750,000 per claimant in suits again non–practitioner defendants (hospitals and other non-physicians).

The court can decide to exceed these caps in certain circumstances. In cases of catastrophic injury or negligence which results in a permanent vegetative state or death, a patient may recover up to $1 million and $1.5 million, respectively.

For any type of injury resulting from emergency care, the law caps non–economic damages in suits against practitioner defendants at $100,000 per claimant (but not to exceed $300,000 for all claimants), and $750,000 per claimant (but not to exceed $1.5 million for all claimants) in suits against non-practitioner defendants.

Benefits of Tort Reform to Florida Physicians and Their Patients

Tort reform helps protect qualified doctors from exorbitant judgments that may drive them out of the state, and even out of practice. Specialists are more likely to accept complex cases when the threat of a significant verdict is minimized. Losing good doctors benefits no one.

Current Court Challenges

Caps on non–economic damages are facing opposition in the Florida court system. Recent cases, including the two mentioned below, have challenged the constitutionality of the tort reform that was enacted in 2003. Based on cases that are pending in the appellate courts, there is a strong likelihood that a decision of the appellate court (for either a plaintiff or defendant) regarding the constitutionality of non–economic damage caps will eventually be appealed to the Florida Supreme Court for their review by the loser.

In Nadine Raphael vs. James Shecter & Emergency Physician, etc., the jury returned an award for the plaintiff on August 30, 2007 in the amount of $783,119 in economic damages and $9,500,000 in non–economic damages. The total award was $10,283,119. The incident giving rise to the claim occurred in April 2003. The non–economic damage cap became law on September 15, 2003 and the claim was made against the doctor in 2005.

The lawyer for the physician defendant petitioned the trial judge to apply the non–economic damage cap to the verdict because the claim wasn't made until after the cap became law. The plaintiff's lawyer argued to the trial judge that the cap was unconstitutional and urged the judge not to apply the cap.

On September 14, 2007, the judge ruled that the $150,000 non–economic damage cap governing emergency room cases was constitutional. The judge entered an order reducing the $10,283,199 award to a total of $845,119, which included some adjustment to the economic losses that had nothing to do with the application of the non-economic damage cap.

The plaintiff filed an appeal of the ruling regarding the cap on February 4, 2008 to the Fourth District Court of Appeal. The Fourth District Court of Appeal ruled on September 23, 2009 that the non–economic damage cap could not be applied retroactively to claims that occurred prior to the date that the non–economic damage cap law was enacted. The court's ruling did not address the constitutionality of the non–economic damage cap. The ruling simply addressed the retroactive application of the statute. This ruling only binds courts in Broward, Palm Beach and Indian River counties.

With the outcome of the decision in the Fourth District, the physician defendant's attorney has filed the necessary documents to appeal the ruling to the Florida Supreme Court and is waiting for a decision by the court to accept jurisdiction in the case. A ruling from the Florida Supreme Court may take as long as 18 to 24 months after the Fourth District ruling. The end result is that it could be 2011 (or eight years after the cap was passed) before a definitive ruling on the issue.

Another case currently working its way through the appellate Florida courts is Daniel Weingrad, M.D., vs. Kimberly Ann Miles and Jody Haynes. The result of this case was a $1 million judgment against the defendant. The $500,000 cap was not applied.

On April 7, 2008 a Miami–Dade County jury returned a verdict for the plaintiff in Miles v. Weingrad for $16,104 in economic loss and $1,500,000 in non–economic loss for a total verdict of $1,516,104. This case was appealed. The Third District Court of Appeal heard oral arguments on this case in October 2009 and ruled on March 3, 2010 that retroactively applying the cap is constitutional and reversed the trial judge's decision. They remanded the case to the trial judge to apply the $500,000 non–economic damage cap to the plaintiff's award.

Florida Medical Malpractice Trends

Florida is one of the most litigious states in the country. Knowledge of the medical malpractice industry is critical for physicians in the state. The American Tort Reform Foundation (ATRF) has released its annual report which documents litigation abuses in six areas of the country that have developed reputations for uneven justice. In its 2009 report, the ATRF has once again ranked South Florida as the #1 Judicial Hellhole.

Judicial Hellholes are places where judges systematically apply laws and court procedures in an unfair and unbalanced manner, generally against defendants in civil lawsuits. As a result of Florida being one of the most litigious states in the country, it has some of the highest medical malpractice rates in the country.

South Florida, the home of WhoCanISue.com, is known for generous verdicts for its medical malpractice claims, as well as other categories of lawsuits.

Since November 2007, Florida juries have awarded plaintiffs in five separate medical malpractice trials verdicts in excess of $30 million. In 2008, other substantial verdicts of $6.3 million, $9.7 million and $12 million have occurred. In addition to the $2.9 million award in October, 2009 also produced verdicts of $6.33 million and $14 million. This is the highest concentration of such large verdicts to ever occur in Florida. Unfortunately, large verdicts like these tend to attract more lawsuits.

The award limits established by the 2003 tort reform law are advantageous to the quality of healthcare in this state, because they help control the severity of claims filed against doctors. The limits apply only to non–economic or punitive damages, not compensatory damages. It is essential that the caps on non–economic damages survive current and future constitutional challenges to provide maximum protection for both patients and physicians.