An appeals court in Florida has ruled just as there can be no cap on damages for emotional distress in wrongful death medical malpractice cases, neither is it constitutional to place one on other medical malpractice cases that do not end in death.
Twelve years ago, state legislators instituted the caps for non-economic damages in wrongful death cases by amending F.S. 766.118. However, this was done under the assumption we were in the midst of a “medical malpractice crisis” that threatened to send health insurance prices soaring if something wasn’t done soon. While not challenging whether the legislature had a reasonable basis on which to take this action at the time, the state supreme court in McCall ruled there was not presently a rational relationship between the cap on non-economic damages and alleviation of a medical malpractice crisis. The court further stated there was not sufficient evidence showing a direct correlation between damage caps and reduced malpractice premiums. (This is, of course, in spite of the chorus of health care lobbyists for years shouting about the need for tort reform.)
The McCall decision, however, pertained only to wrongful death cases stemming from medical negligence. Plaintiff in Kalitan sought to apply it to her medical negligence case, which she survived.
According to court records, plaintiff went to defendant hospital for purposes of undergoing an outpatient surgery to treat her carpal tunnel syndrome in her wrist. The surgery necessitated she undergo general anesthesia. While anesthesiologist was placing a tube down plaintiff’s throat, one of the tubes perforated plaintiff’s esophagus.
Before this incident, plaintiff had no issues with her esophagus or throat. When she awoke from surgery, she complained of excruciating pain in her chest and back. She was given some pain medication and sent home.
However, when her neighbor stopped by to check on her the next day, she found her unresponsive on the floor. Rushed into the emergency room, plaintiff underwent a life-saving surgery to repair her esophagus. She was in a drug-induced coma for several weeks and had to undergo additional surgeries and intensive therapies just to learn how to eat again and regain her upper body strength.
Plaintiff sued for medical malpractice.
Jurors sided in her favor, finding her injury was catastrophic and awarding her $4.7 million in total damages, including $4 million in non-economic damages, for past pain and suffering and future pain and suffering.
However, the hospital’s share of that amount was slashed to just $100,000, as the hospital is considered a sovereign entity and Florida statute caps damages in these cases.
Plaintiff appealed on constitutional grounds, citing the McCall case.
The appellate panel agreed with her, finding it makes no difference whether the damage cap is applied horizontally – to numerous claimants in a wrongful death case – or vertically – to a single claimant in a personal injury case. Non-economic damage caps are unconstitutional, the panel ruled, ordering the jury’s full damage award be reinstated.
This may not ultimately be the final say in the matter. It’s probable the hospital will appeal the case to the state supreme court.
If you have been injured by medical malpractice in West Palm Beach, contact the Hollander Law Firm at 888-751-7777 for a free and confidential consultation. There is no fee unless we win.
North Broward Hospital v. Kalitan, July 1, 2015, Florida’s 4th DCA
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State ex rel. HCR Manorcare v. Stucky – Nursing Home Negligence Lawsuit Considered, June 24, 2015, Florida Medical Malpractice Lawyer Blog