19 Jan


Firm News, Medical Malpractice

Some big news out of the 4th district court of appeal on Wednesday:

In a landmark decision, the court ruled that caps – or financial limits – on damages awarded in medical malpractice suits are unconstitutional.

The caps, the court found, are a violation of the equal protection clause of the Florida Constitution, following a decision by the Florida Supreme Court that struck down similar caps on wrongful death cases.

The ruling applies to non economic damages, or damages intended to compensate for disability, disfigurement or pain and suffering, etc.

These damages are not always easy to calculate, and can require lots of work from a lawyer, potentially discouraging a firm from taking on a case. With the new rulings, Florida residents can now seek representation from lawyers without fear or prejudice.

An important distinction: There is currently no cap on economic damages – or damages that can be recovered for lost income, lost earning capacity, and past and future medical care.

Previously, there was a $500,000 cap in medical malpractice lawsuits against practitioners, and $1 million, where medical negligence contributed to a death. For non-practitioners, the cap was $750,000, and $1,500,000 for death.

The rulings stemmed from two separate cases, one involving malpractice and one involving a death.

The malpractice case originated with a woman named Susan Kalitan. In 2007, she went to North Broward Hospital District, now known as Broward Health, for outpatient surgery to treat carpal tunnel in her wrist.

When patients are to be put under anesthesia, sometimes plastic tubing is inserted into the windpipe, either to maintain an open airway or to administer drugs.

During this process, known as intubation, the tube was inserted with such force that it tore a hole in her esophagus.

It turns out, the person intubating her was a student on academic probation. When she woke up, she complained about a severe pain in her chest and back.

The anesthesiologist, unaware of her injury, gave her a drug for chest pain, and she was released from the hospital. But, because of the hole, food seeped into her chest cavity. The next day, a neighbor found her unresponsive in her home, and Kalitan was rushed to the hospital, diagnosed with sepsis, and prepped for emergency surgery.

She woke up in the intensive care unit and was in a drug-induced coma for several weeks. She sued, and in court she testified that she continues to suffer from pain throughout her upper body, and has serious mental disorders and trauma from the incident.

A jury awarded her $4.7 million, but it was reduced due to caps, including the hospital’s share being limited to $100,000.

The other case that prodded the decision was that of Michelle McCall. She was a pregnant 20-year-old pilot receiving care from a United States Air Force Clinic. She died during childbirth, and her family sued. They were awarded $2 million, but the money was reduced and capped at $1 million, which of course, has to be divided and shared.

Because of these two cases being appealed, the caps on medical malpractice and wrongful death no longer apply.

The caps existed on the idea that they would restrict a victim’s ability to bring malpractice suits. This would, in theory, improve healthcare and reduce costs. But according to Forbes contributor Steve Cohen, this is a myth.

Cohen explains that a team of five doctors and public health experts found that tort reform measures specifically designed to protect doctors, did nothing to reduce the numbers of expensive tests and procedures that ER doctors prescribed.

This is a study, Cohen wrote, that follows numerous others on the topic, debunking the myth that making it harder for people to file suits would reduce the number of frivolous ones and reign in juries from awarding lottery-sized sums.

This also marginalizes the issue, making it seem like it’s only about the money, when in fact it’s about people losing loved ones, or their health.

It’s also not about the money for the lawyers, either. Cohen explains that because of lobbying by the insurance and hospital industries, lawyers get a sliding scale that that starts at about 30 percent and falls to 10 if the verdict is over $1.25 million. This makes it usually not worth the time or investment for a lawyer, as the man hours and preparation needed for a trial can be expensive.

Thankfully, because of the new decision by the appeals court, the caps on wrongful death and medical malpractice suits no longer apply, at least until The Florida Supreme Court, which is expected to take up the case, ultimately decides the issue.