Florida Legal Topics

DeBary Legal News - Damages

The Law Office of Paul Bernardini

Medical Malpractice Cap Declared Unconstitutional

The Supreme Court of Florida voted in favor of the ordinary person in the case of Estate of Michelle Evette McCall v. United State of America. In this case, decided March 13, 2014, the Supreme Court of Florida held that the statutory maximum cap on non-economic damages set forth in Florida Statute 766.118 (Medical Negligence) violates the right to equal protection under Article 1, Section 2 of the Florida Constitution and is therefore invalid. Accordingly, the limit on wrongful death non-economic damages in medical malpractice actions set forth in Florida Statute 766.118 is held to be unconstitutional under Florida Law.

In this interesting case, the Supreme Court of Florida also notes certain truths which you may not know if you watch television programs, most of which are sponsored by insurance companies.

First, the Supreme Court of Florida discussed whether or not there is a shortage of doctors in Florida. Testimony at the hearings provided by both the Department of Health and the Agency for Healthcare Administration and various other people was that at the present time, there are, in fact, more doctors licensed to practice in Florida today then there were five years ago. Further, applications to the medical schools in the state of Florida are up and have been consistently for the past number of years. Emergency rooms have not been closing as a result of medical malpractice. As a matter of fact, the Department of Health and the Agency for Healthcare Administration both testified under oath that they could not cite any incidents where because of the medical malpractice crisis, patients were denied some type of care or directed some place else. The reports of physician departures in Florida were anecdotal, not extensive, and in some cases were determined to be inaccurate. For example, State Medical Society officials told the committee that Collier and Lee Counties lost all of their neurosurgeons due to malpractice concerns. However, the study found at least five neurosurgeons currently practicing in each county as of April 2003. Provider groups also reported that malpractice pressures have recently made it difficult for Florida to recruit or retain physicians of any type. However, over the past two years, the number of new medical licenses issued has increased and physicians per capita has remained unchanged. This is from the government accounting office. An article titled “Medical Malpractice: Implications of Rising Premiums on Access to Health Care, No. GAO-03-836 (August 2003).” Moreover, the Supreme Court of Florida noticed that for those doctors who are leaving Florida or who have left Florida, there was no concrete evidence to demonstrate that high malpractice premiums were the cause of the departure. The entire case can be found at 39 FLW S110 (March 14, 2014).

In any event, after evaluating the current information, the Supreme Court of Florida concluded there was no rational basis existing to justify continued application of the limit on non-economic damages under Florida Statute 766.118.

Torts - Automobile Accident - Damages

Jury finding of zero damages:

On October 30, 2013, the Fourth District Court of Appeal ruled that a jury was not required to find any damages whatsoever in favor of the plaintiff.  The plaintiffs made several claims, one of them for medical treatment at the scene of the accident and the emergency room immediately following the accident. Verdicts like this are one of the reasons people consider settling their claims.  Hernandez v. Gonzalez, 38 Fla.L.Weekly D2257 (2013).