HNF Stories
11:18 am
Fri March 14, 2014

FL Malpractice Caps Thrown Out

Credit JMV0586 / FLICKR

Thursday's Florida Supreme Court decision that threw out medical malpractice limits on "pain and suffering" drew quick rebukes from doctors and applause from trial attorneys.

The 5-2 landmark decision, issued two years after oral arguments, called into question the very reason the Legislature imposed the limits in the first place: the "alleged medical malpractice crisis."

Second-guessing the legislative intent in such a case is extraordinary, says Jay Wolfson, University of South Florida professor of public health and medicine.

"This ruling can have a significant domino effect that may dramatically affect the status and future of tort reform in Florida and elsewhere in the nation," he said.

The Florida Medical Association predicted an increase in lawsuits, an exodus of physicians from the state and an "intensified access-to-care crisis."

The opinion is a product of "activist judges," said FMA General Counsel Jeff Scott. 

Dr. Alan Pillersdorf, a Palm Springs plastic surgeon and president-elect of the FMA, said the patients are the "real losers" from this court opinion.

“Every time there’s a very complicated case, the doctor is going to have this hanging over this head," Pillersdorf said. "He’s going to shy away from very difficult cases. He’s going to shy away from poor people. You’ve unleashed the Florida trial bar on the population."

But trial attorneys who specialize in negligence suits said the decision removes a law that unfairly targeted the victims of just one kind of negligence.

"Medical malpractice is the only type of claim that had these caps, so if you were run over by a Greyhound Bus, or killed by a defective product, there were no caps," said longtime St. Petersburg attorney Tom Masterson.

The decision in McCall v USA applied only to cases in which the patient died, and only those filed from now on. But the principle is the same for other cases of alleged negligence by a physician, for which the "non-economic damages" were limited to $500,000 or $1 million, depending on the situation, Tampa trial attorney Anthony Martino said.

"It's clear that the court was very concerned these caps are just unfair, and create different  classes of people without  any rational basis," Martino said. "We believe the court will  eventually overturn all claims involving caps on non-economic damages."

The legislature came up with the caps 11 years ago, at a time when there was a hue and cry about the cost of medical malpractice and resulting defensive medicine, which drove up costs. The idea of imposing caps was a compromise, and then-Gov. Jeb Bush signed it into law.

The number of cases then fell, which physicians interpreted as a sign that the caps were deterring frivolous lawsuits. Medical-malpractice attorneys say, however, that many legitimate cases were turned away because of the caps and other barriers the legislature set up to bringing medical-malpractice suits.

Caps made law firms cautious about fronting the cost for cases that are expensive to litigate, since the caps could leave the plaintiffs with little or nothing at the end.

"This is a monumental decision," prominent trial attorney Ken Sobel of Fort Lauderdale told the  Times/Herald Tallahassee Bureau. "It is being resoundingly applauded by our side of the bar, and quietly applauded by the defense bar."