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The Florida Supreme Court showed some reluctance Wednesday to apply a cap on non-economic damages retroactively in a medical malpractice case.

Before the court was the case of Kimberly Ann Miles, who suffers permanent pain and swelling after undergoing unnecessary surgery in 2003. The Legislature passed a cap on malpractice damages that took effect nine months later.

A Miami-Dade jury awarded Miles $1.5 million in non-economic damages, commonly known as pain and suffering. The defendant, Dr. Daniel Weingrad, sought to have that portion of the award cut to the $500,000 cap.

The trial court refused, but Weingrad prevailed on appeal. This put the Third District Court of Appeal in conflict with a 2009 decision from the Fourth Court of Appeal, Raphael v. Shecter.

The Fourth District refused to apply the cap retroactively. Philip Burlington of Burlington & Rockenbach in West Palm Beach, Miles’ attorney, asked the court to agree with Raphael.

Dinah Stein of Hicks, Porter, Ebenfeld & Stein in Miami argued for Weingrad.

Justice Barbara Pariente, presuming Weingrad had insurance, said insurance companies calculate rates according to the law in place at the time.

“Why would we carve out an exception where the policy seems not to favor it?” Pariente asked.

Stein argued the Legislature based the start date on the notice of intent to sue. Stein also drew a distinction for non-economic damages because juries have so much discretion.

“Can Mrs. Miles and her husband have reasonably had an expectation to get more than $500,000 when the award could easily have been less?” Stein asked.

The Florida Justice Association, representing plaintiffs attorneys, filed a friend of the court brief in May after Stein submitted a supplemental brief asking the court to apply McCall v. United States. In March, the Florida Supreme Court struck down the cap on non-economic damages when more than one plaintiff suffered damages.

Justice R. Fred Lewis told Stein it would be hard to suggest constitutional violations can be protected only in the future.

“As I understand the law, it was unconstitutional from the day it was passed,” Lewis said.

Stein argued there was a “robust” body of law that holds unconstitutional acts can be prospectively applied if the rights of some are affected.

Burlington said Stein was relying on a narrow area of tax law for support.

“Those were not cases where there were equal protection violations in the passage of the act at its inception,” Burlington said.