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FL 4th DCA Finds Non-Economic Damage Caps in Medical Malpractice Litigation Unconstitutional

Last year, the Florida Supreme Court took on the issue of caps on non-economic damages in medical malpractice wrongful death cases. The court ruled in Estate of McCall v. United States that capping damages in these cases was unconstitutional.gaveljan

This was a major victory for those who had suffered the death of a loved one due to the negligent acts of a doctor or health care facility.

Now, Florida’s Fourth District Court of Appeal has taken the issue a step further. In the recent case of North Broward Hospital District et al. v. Kalitan, the court ruled non-economic damage caps for ALL medical malpractice personal injury cases is unconstitutional. In other words, the patient doesn’t have to die in order for damage caps to be lifted.

Our Deerfield Beach medical malpractice attorneys see this too as a major victory, although this finding hasn’t been solidified by the Florida Supreme Court. Given that there is some disagreement among the various appellate districts on this issue, it’s probable we will see it weighed by the Florida Supreme Court in time.

Until then, those at least in the 4th DCA can expect to receive the full non-economic damage awards to which a jury finds them entitled.

In this case, plaintiff went to defendant hospital for outpatient surgery in order to treat carpal tunnel syndrome in her wrist.

She was placed under anesthesia, one of the tubes used for intubation perforated plaintiff’s esophagus.

When plaintiff awoke from surgery, she complained of excruciating pain in her chest and back. The doctors, unaware of the esophagus damage, ordered her pain medication and she was discharged, picked up by a neighbor and went home.

The neighbor came back the next day to check on plaintiff, who was unresponsive. She was rushed to the emergency room, where she had to undergo a life-saving surgery to repair her esophagus. Her next memory was waking up in the intensive care unit after spending weeks in a drug-induced coma. She had to undergo additional surgeries and it was a long time before before she could eat/be mobile again.

She alleged she continued to endure pain and suffering – physical and mental – as a result of the botched procedure.

Jurors determined plaintiff sustained what was considered a “catastrophic injury,” and that the anesthesiologist, as his own agent, and nurse, as agent of the hospital, were liable. Plaintiff was awarded a total of $4.7 million in damages. Total non-economic damage awards were $2 million for past pain and suffering and another $2 million for future pain and suffering.

In post-trial motions, defendants challenged jurors’ finding that the injuries were catastrophic and the hospital’s vicarious liability as employer of the nurse (who had not actually carried out the procedure).

Trial court affirmed jury’s verdict and hospital’s liability. However, the damage award was reduced by nearly $2 million because of non-economic damage caps for non-practitioner defendants, as well as the fact the hospital, as a sovereign (government) entity, could only be forced to pay up to $100,000.

But then the McCall verdict was handed down, and plaintiff appealed the reduction of award under the same principle weighed by the state supreme court. She alleged capping non-economic damages to medical malpractice victims who had survived was unconstitutional.

The 4th DCA agreed, finding such caps violate Florida’s Equal Protection Clause.

When the Florida legislature passed non-economic damage caps on medical malpractice actions, the state was in a “medical malpractice insurance crisis of an unprecedented magnitude.” However, the McCall verdict clearly stated that was no longer the case. Consequently, there is no justification for an arbitrary reduction of survivors’ and injured persons’ non-economic damages.

Call Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights.

Additional Resources:

Dean v. Central Georgia Women’s Health Center – $4.3M Awarded in Baby Death Case, June 15, 2015, Deerfield Beach Medical Malpractice Attorney Blog

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