Joel Perwin
Joel Perwin (Aixa Montero Holt)

In a closely watched case, the Florida Supreme Court threw out a state law capping non-economic damages in medical malpractice cases, finding it violated the equal protection clause of the state Constitution.

The court split 5-2 in rejecting the business-backed $1 million cap imposed by the Legislature in 2003.

The decision came in the case of a 20-year-old Florida Panhandle woman who bled to death after childbirth. Her family was awarded $2 million in damages, but a judge lowered the amount to $1 million, citing the ceiling set by lawmakers during what was billed as a medical malpractice insurance crisis.

“The cap on non-economic damages serves no purpose other than to arbitrarily punish the most grievously injured or their surviving family members,” Justice R. Fred Lewis wrote for the majority in the 96-page opinion.

Chief Justice Ricky Polston wrote the dissent, joined by Justice Charles Canady.

The ruling took on a law pushed through by then-Gov. Jeb Bush with the backing of powerful doctor, hospital, insurance and other business lobbies. The groups claimed high medical malpractice awards produced skyrocketing medical malpractice insurance rates and were pushing doctors out of Florida. Medical malpractice damages were capped at $1 million, no matter how many survivors claimed damages. The law capped damages for each incident rather than for each claimant.

The court concluded the cap “has the effect of saving a modest amount for many by imposing devastating costs on a few.”

Lewis wrote at length on the conditions in play at the time the law was passed when the medical community warned of a physician shortage due to escalating malpractice premiums.

He concluded the cap “does not bear a rational relationship to the stated purpose that the cap is purported to address—the alleged medical malpractice insurance crisis in Florida.”

Practical Effects

The case testing limits on damages for pain and suffering has a long and winding history. The family of the late Michelle McCall sued in federal court because she was an Air Force dependent and her son was delivered by Air Force personnel, setting up the lawsuit under the Federal Tort Claims Act. An appeal reached the U.S. Court of Appeals for the Eleventh Circuit, and the federal court referred questions about the cap to the Florida court.

Handling the appeal for the federal government were Assistant U.S. Attorney General Tony West, Daniel Lenerz and Thomas Bondy of the Justice Department in Washington and Assistant U.S. Attorneys Pamela Marsh in Tallahassee and Pamela Moine in Pensacola.

The state attorney general’s office had no comment by deadline.

The case has been closely watched around the country, with dozens of legal watchdog and medical groups weighing in with amicus opinions. Amicus briefs were filed by groups ranging from the AARP and Florida AFL-CIO to the American Medical Association and Florida Consumer Action Network.

Florida Medical Association president Alan Harmon issued a statement predicting longer waits to see high-risk specialists like obstetricians, neurosurgeons and other surgeons.

“This is the last thing Florida patients and physicians need,” he said. “The likely outcome will be that trial lawyers will refocus their sights on physicians, meritless lawsuits will clog our courts and physicians will move to states with a more favorable litigation climate like Texas.”

Unfair Punishment

The family of the late Michelle McCall was represented by Henry Courtney and Sara Courtney-Baigorri of Courtney Law Firm in Coral Gables, Stephen Poche of the Law Office of Stephen S. Poche in Shalimar and Robert Peck and Valerie Nannery of the Center for Constitutional Litigation in Washington.

“We are so excited about this,” said Henry Courtney. “This was a long, hard fight.”

Other plaintiffs lawyers rejoiced at the outcome.

“We are finally moving in the right direction where people will have an opportunity to be fairly treated in court when physicians and nurses and hospitals make decisions that ruin people’s lives,” said Ervin Gonzalez, a partner with Colson Hicks Eidson in Coral Gables. “You can’t single out victims and say they are going to be discriminated against and damaged.”

Gonzalez said the court is about to consider a similar case involving caps in personal injury cases and predicts caps will be overturned in those cases as well.

Miami appellate attorney Joel Perwin, who filed an amicus brief on behalf of plaintiffs attorneys, the AARP and several labor groups, said, “It’s the right decision, and it’s a principled decision.”

Paul Anderson, president of the Florida Justice Association, issued a statement saying he was “pleased victims and their families will have the opportunity to be fully compensated for their losses. The cap on non-economic damages unfairly punished victims whose lives were permanently altered by no fault of their own.”

Gonzalez expects medical groups to try to fashion another bill.

“There’s always a strong interest by the Florida Medical Association to limit patients’ rights, and I would expect them to try to draft a statute that meets the equal protection statute that the court addressed,” he said.