James Haliczer, partner with Haliczer Pettis & Schwamm in Fort Lauderdale.

Recent rulings on the issue of Florida’s Medical Malpractice Arbitration caps on intangible damages have resulted in a significant win for victims. These caps were declared unconstitutional by Miami-Dade County Circuit Judge Jose M. Rodriguez in response to a post-trial motion by Dr. Taylor Poole’s to reduce the jury’s verdict to the level of the caps. These caps are the last remaining vestiges of the statutory scheme designed to limit intangible damages in medical malpractice cases.

For those who are unfamiliar, the Florida Legislature passed the statutes authorizing the arbitration caps more than 30 years ago in response to concerns about a medical malpractice crisis. Supporters of the caps argued that medical malpractice insurance was becoming astronomically expensive, and therefore making acquiring coverage more difficult. They also argued that verdicts in medical malpractice cases were too large. Supporters also believed that doctors were leaving the state because they could not afford malpractice insurance and were afraid of the potential verdicts that could arise. This, it was argued, would make it painstakingly difficult for in-state patients to have access to quality health care. Fifteen years ago, after years of debating, the Legislature, capped the recoverable intangible damages in all medical malpractice cases, regardless of whether anyone was elected to arbitrate their claims. These statutes, when taken together, constitute a statutory scheme employed by the Legislature to limit the damages that could be recovered for pain and suffering in all medical malpractice cases.

The public debate wasn’t quieted by this legislation and eventually a case challenging one of the caps made it to the Florida Supreme Court.

McCall v. United States of America led the court to declare the general caps on intangible damages unconstitutional in wrongful death and medical malpractice cases. The McCall court held that the caps violated the Equal Protection Clause of Florida’s constitution. This influenced the decision in North Broward Hospital District v. Kalitan, which held that the general caps in personal injury and medical malpractice cases were also unconstitutional. Additionally, the caps were shown to be in violation of the Equal Protection Clause. As it stands now, the only remaining caps are those under the Arbitration statutes.

There’s very little precedential value, to Judge Rodriguez’s order as it is a single circuit court opinion. The opinion is, however, detailed and contains findings of fact as well as a sophisticated legal analysis. It appears that Judge Rodriguez relied in part on the notion of “doctrinal developments” since the decisions declaring the arbitration caps constitutional. The doctrinal developments that permit a lower court to deviate from precedent indicate that the superior court would rule differently now. Judge Rodriguez didn’t believe the so-called medical malpractice insurance crisis was really a crisis at all or did not believe that it was still in existence. In relying on these conclusions, Judge Rodriguez was, in effect, echoing the view already articulated in both McCall and Kalitan. He indicated that if McCall and Kalitan courts held that capping the recovery in medical malpractice cases was arbitrary, irrational and fundamentally offensive to the notions of equal justice, a law that allowed a defendant to have the power to limit a plaintiff’s recovery was equally, if not more, arbitrary, irrational and offensive.

The decision is not a surprise given the previous decisions in McCall and Kalitan. The trend is clearly away from caps and toward treating medical malpractice plaintiffs in the same way that plaintiffs in other kinds of personal injury and wrongful death cases are treated. There is a growing view that singling out medical malpractice plaintiffs and limiting their intangible damages just is not fair.

James Haliczer is managing partner at Haliczer Pettis and Schwamm. He may be reached at 954-523-9922 or JHaliczer@hpslegal.com.