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Chris Nace
Chris Nace
Attorney • (202) 930-0292

Medical Malpractice Caps Under Scrutiny

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Last week, Florida’s 2nd District Court of Appeal in Charlotte County declared limits on “noneconomic” damages in medical malpractice suits to be unconstitutional. In their decision, the court cited another appeals court case in Broward County that declared such statutory limitations to be unconstitutional as well—a decision that’s now under review by the Florida Supreme Court.

While not a new concept, placing a limit or cap on monetary amounts that can be awarded for pain, suffering and other non-economic damages has been controversial in Florida since first being introduced in 2003 as a way to curb the purported growing malpractice insurance costs. Of course, Florida was not the first or only state to enact such a statute, as more than half of all states have some law that imposes such limitations. Nor is Florida the only state to question the constitutionality of such limits, as other states have done the same—including Georgia, Alabama, New Hampshire, Oregon, Illinois and Washington. Missouri is of particular interest in that they had medical malpractice damage caps, declared them unconstitutional in 2012, and then, in 2015, reinstated them with a new bill that was passed by their House of Representatives with a vote of 125 to 27.

So, are damage caps constitutional or not? Opponents claim that not only have they failed to reduce malpractice insurance costs as proposed, but such statutes actually deny fair compensation to plaintiffs who have won their case in court. Take the current debate before the Florida Supreme Court as an example: the plaintiff had elected to have a fairly routine surgical procedure performed to correct carpal tunnel syndrome in her wrist. In the process, a nurse unknowingly punctured her esophagus during intubation. The patient’s post-operative claims of severe chest pain were mostly dismissed and she was sent home—only to be found later in a near-death state and rushed to the emergency room where then began a slow recovery that still manifests a great deal of pain, anxiety and reduced independence for the individual. The jury awarded the plaintiff more than $4 million in noneconomic damages for all that she endured due to medical negligence, yet the state of Florida limited the award to less than half that amount due to several state statutes designed to provide a monetary cap on such recoveries.

And it’s not just Florida that is seeing a disparity between what juries are awarding the victims of malpractice and what the law will allow. Just this month, an Omaha, Nebraska hospital is seeking an appeal after a jury awarded the amount of $11.5 million to a couple suing for malpractice after their newborn son suffered brain damage as a result of improper procedures employed during delivery. If the judge rules in favor of the hospital and invokes the state cap on damages, the amount would be reduced to $1.75 million—a reduction of 85 percent.

It’s clear that the future rulings on current cases could set a precedent moving forward—not just for Florida, but other states as well. One must wonder though, if the root matter here isn’t so much a question of constitutionality, but that of accountability. As I explored in a recent post, medical errors are becoming more common, and it stands to reason that malpractice lawsuits will increase as well. Ultimately, it might be best to fight for better care rather than limit the recourse of those who have been injured.

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    In addition to their rather apparent unconstitutionality, malpractice caps take away the traditional role of the “Fifth Estate” in helping curb societal and social ills. As can be seen by the statistics, the only group which benefits by caps is the insurance industry, which discourages lawsuits while at the same time continues to raise malpractice insurance premiums. In California, the first State to impose limitations on recoveries, responsibility for oversight of the quality of medical care was ceded to the State Medical Board, which was, and continues to be criticized for the failure to either scrutinize the cause of medical misadventures, and instead protects the vast legions of incompetent, unqualified, or intoxicated health care providers, said by the California and American Medical Associations to number 10 – 13% of all practitioners. Instead, the state Medical Board, because it has no budget to investigate errant physicians, waits until the civil litigation which may be filed has run its course before conducting a full scale investigation, since they can then rely on the efforts of the civil litigators and the experts they have paid to retain to make their case. Of course, for any case which does not involve significant and permanent injury, or death of a wage earner, civil litigators cannot afford to take the case – they know that a cap is the number below which the settlement bidding starts, since the only way to get full cap value is to try the case, at substantial expense. This change in the traditional social role of civil litigators has left thousands without recourse,and at the same time has failed abysmally at reducing the cost of malpractice insurance, and thus the cost of medical care.