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For months, Gov. Jeb Bush and key Florida lawmakers have been locked in a death match over capping noneconomic damages in medical malpractice lawsuits. But even if the governor and the lawmakers reach agreement on limiting awards, the Florida Supreme Court most likely will have the final say. Plaintiffs’ lawyers say that if a cap on damages is enacted, the law will be challenged on constitutional grounds, and implementation of the damage limit will be held up until the issue is fully resolved by the courts, which could take several years. Plaintiff lawyers have filed such challenges in nearly every state that has passed caps on malpractice damage awards. And, if history is any guide, there is a strong chance that the damage cap will be overturned on constitutional grounds. The state Supreme Court overturned a previous malpractice cap in Florida in 1987. “The case law against caps is very strong in Florida,” said Bob Peck, president of the Center for Constitutional Litigation in Washington, D.C., which has filed successful challenges against malpractice caps in other states. “We’re very confident that caps would be thrown out there.” Neal Roth, a Miami lawyer who is co-chair of the medical malpractice committee of the Academy of Florida Trial Lawyers, said his group would participate in any challenge. Twenty states have adopted limits on medical malpractice awards. Over the last 15 years or so, Supreme Courts in Florida, Oregon, Ohio, Texas, Illinois and Washington have struck down various forms of caps. But high courts in Indiana, Nebraska, Virginia, and Idaho have upheld cap laws. In June, Texas became the most recent state to adopt a cap. If the Florida Legislature approves caps and the plaintiff bar files a constitutional challenge, the Florida Supreme Court once again will be at the center of a high-profile political controversy. In other states such as Ohio, where the its Supreme Court ruled on tort damage caps, justices who voted against caps faced well-funded attacks at election time. The Center for Constitutional Litigation, a law firm that represents the Academy of Trial Lawyers of America, has filed suit over med-mal caps in five states — Ohio, Oregon, North Carolina, Nebraska and Indiana. The six-lawyer firm was successful in getting caps overturned in Ohio and Oregon and is arguing the issue before the Indiana Supreme Court next month. “When a case is properly brought, the caps are often knocked down by the courts,” Peck said. In Texas, to safeguard malpractice damage caps from such challenges, lawmakers approved a law earlier this year putting the cap issue before the voters in the form of a constitutional amendment, rather than imposing the cap by legislative means alone. On Sept. 13, Texas voters will vote on Proposition 12, which reads: “The Legislature, by statute, may determine the limit of liability for all damages and losses, however characterized, other than economic damages.” Peck said the Texas cap supporters took that approach so that “if the constitution is amended, the cap can’t be challenged in court.” The ballot initiative approach can backfire, however. In 1999, Oregon voters rejected a constitutional amendment establishing a med-mal damage cap. So did Florida voters in 1988. The Florida Medical Association previously has said that it’s trying to raise a multimillion-dollar war chest to place a proposed constitutional amendment on the statewide ballot next year. STRUCK DOWN BEFORE Last week, Gov. Bush announced that he would not call the Legislature back for another special session on medical malpractice but instead would allow House and Senate negotiators to continue trying to reconcile conflicting bills. The two sides remain far apart, with the House backing a $250,000 noneconomic damage cap and the Senate favoring a “soft cap” of $500,000, with exceptions for certain catastrophic injuries. Gov. Bush and House Republican leaders have made caps on noneconomic damages, which include pain and suffering, the centerpiece of their proposals to overhaul the medical malpractice tort system and reduce professional liability insurance premiums for doctors. President Bush and GOP leaders in the U.S. House have pushed caps on the national level, but the Senate has balked. Gov. Bush argues that excessive jury awards in med-mal cases are driving up medical costs, pushing doctors out of practice and forcing hospitals to shut down services. But Democrats and plaintiff lawyers, joined by some Senate Republicans, have opposed caps, arguing that insurance companies are to blame for the rising premiums and that caps won’t bring rates down. But what cap supporters don’t mention is that even if the Florida House and Senate succeed in striking a compromise on caps, the provision could be overturned on constitutional grounds. In fact, that’s exactly what happened in Florida in 1987. The 1986 Tort Reform Act called for caps of $450,000 on noneconomic damages. But in Smith v. Department of Insurance, the Florida Supreme Court threw out that cap provision in 1987, finding that caps were unconstitutional on two grounds — they violated the access to courts provision of the Florida Constitution as well as the right to a jury trial. A new court challenge to caps in Florida likely would be brought on similar grounds and would cite the Smith decision, Roth said. The grounds on which a challenge is brought vary in each state, depending on the state’s constitution. In Florida, a case would cite three arguments. First, under common law, everyone has the right to seek unlimited redress for his or her injury. Second, there must be overwhelming public necessity to take away that right. Third, the state must provide a benefit to the public in return for limiting the right of redress. Roth contends that there is no benefit to the public in return for caps for injured parties, and that the Senate proposed to address the medical malpractice issue without a draconian cap provision. But Jill Bratina, spokeswoman for Bush, said the governor is ready for any legal challenge. “We expect that the trial attorneys will file suit but we believe our legislation is constitutional,” she said. “It meets the two-pronged test. There is overwhelming public necessity as we see doctors leaving the state and nothing else has proven to work.” She noted that in 1988, Florida enacted a law capping noneconomic damages in med-mal cases at $250,000 if the defendant admitted liability and both sides agreed to arbitration; the state Supreme Court upheld the constitutionality of that provision. But Roth said that statute was upheld by the Supreme Court in 1993 because it provided a quid pro quo for the population of medical patients — a speedier resolution through arbitration. MIXED SUCCESS Around the country, when med-mal caps are approved by lawmakers, individual plaintiff lawyers, plaintiff bar groups or labor unions nearly always file lawsuits challenging the constitutionality of the law. Such legal challenges have had mixed success. In some states, caps have been thrown out by the state Supreme Court — sometimes, more than once. In Ohio, caps have been thrown out 10 times after the legislature repeatedly passed new versions. “The legislators there were very persistent,” said Peck, whose group successfully challenged the Ohio caps law in 1999. “They kept pursuing tort reform and it kept going to the Supreme Court.” Other states in which the state Supreme Court has struck down caps include Oregon, where a $350,000 cap on noneconomic damages was tossed in 1999; Texas, where a $500,000 noneconomic damage cap was tossed in 1988 (though a new cap was passed this year); and Illinois, where a $500,000 noneconomic damage cap was thrown out in 1997. States where the Supreme Court has upheld caps include Nebraska, where a cap on total damages of $1.25 million was upheld; Idaho, where a $643,000 cap on noneconomic damages was upheld; and Virginia, where a $1.1 million cap on total damages was upheld. Sometimes individual lawyers sue over the applications of the cap to a particular case. In Nebraska, a plaintiff attorney who won a $5.6 million medical malpractice verdict for a child born with severe cerebral palsy and paraplegia filed a challenge to that state’s $1.25 million cap when the verdict was reduced. Peck says plaintiff lawyers who bring such challenges ethically have no choice but to settle in such cases — even though the cap remains in place for the public at large — because their first duty is to the individual client. EQUAL PROTECTION ISSUES Sometimes, labor unions and plaintiff bar groups pool their resources to hire the Center for Constitutional Litigation to file a constitutional challenge. The lawsuits are brought on various grounds. Most commonly, such litigation contends that caps violate the right to trial by jury. In Oregon, caps were overturned solely on these grounds. There are a number of other common grounds for challenges, however. Some suits argue that caps violate the constitutional separation of powers between the legislative and judicial branches. It also has been argued that caps breach the equal protection provision by unfairly discriminating against the elderly, children and minorities. Cap opponents say med- mal victims from these groups generally suffer lesser direct economic losses (because they don’t work or receive lower wages) and therefore pain and suffering damages are more important for them. It is also argued that the caps single out one class of plaintiff for more restrictive treatment than plaintiffs in other types of tort cases. Cap laws also have been challenged on the grounds that they violated the single-subject rule, which requires that legislation focus on one subject only. Even after a state Supreme Court overturns a cap law, legislators can resurrect the provision. They often do that because the powerful medical and insurance lobbies — which contribute heavily to politicians’ election campaigns — demand it. Peck said reviving cap legislation even after a state high court shoots it down allows legislators to please the influential supporters of caps and put the onus on the courts. “They let the courts take the heat,” he said. “They get to run against the courts and say, ‘See, the courts are politically to the left, we need to replace these justices.’ “ Democratic state Sen. Walter “Skip” Campbell, a plaintiff lawyer in Fort Lauderdale who strongly opposes a noneconomic damage cap in med-mal cases, said his colleagues in the Florida Legislature are fully aware that a cap might not survive a constitutional challenge. “But that won’t stop the Legislature from passing something,” he said.

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