Update: Supreme Court of Florida to Address Several Questions Left in the Wake of McCall Decision

openphotonet_P1040376%20(854x1280)Fewer than five months after its formative opinion in McCall v. United States, the Supreme Court of Florida will once again examine the legality of Florida’s statutory caps on noneconomic damages in medical negligence suits. On June 4, the court will hear the oral argument in Miles v. Weingrad, which raises the question of whether caps on recovery of noneconomic damages in medical malpractice negligence actions can be retroactively applied to claims that accrued prior to implementation of the statutory cap legislation. The court originally granted discretionary review of Miles before its decision in McCall and has now requested supplemental briefing on the effect of the McCall decision on the case at hand. In particular, Miles affords the court an opportunity to address both the constitutionality of statutory caps in personal injury medical negligence cases and the question of whether the McCall decision should be applied only prospectively.

To say that the Miles case has been in court for quite some time would be an understatement. The case was originally brought in January 2006. The plaintiffs, Miles and her husband, sued a physician whom they solicited for a second opinion on whether a different physician had completely removed a cancerous melanoma. The physician, Weingrad, informed them that the first physician had not completely excised the entire tumor, and Miles underwent a second surgery. Miles and her husband later found out that the second surgery was unnecessary, since the first physician had, in fact, removed all traces of the melanoma. Unfortunately, the second surgery came with complications, including infection and persistent swelling that continues to hinder her mobility. After a trial, the jury awarded $1.5 million in non-economic damages and a little over $16,000 in economic damages. However, the defendant requested that the trial court apply newly implemented statutory provisions that apply aggregate caps on the recovery of non-economic damages in medical negligence suits. The trial court refused to impose the statutory cap, since the cause of action had accrued nine months prior to the effective date of the legislation. On appeal, the Third District Court of Appeals overturned the trial court decision and held that the statutory cap may be imposed retroactively.

After further appeals and remands, the Miles case now finds itself before the Supreme Court of Florida. However, in light of the recent McCall decision, the disposition of the case carries import beyond the original question it raised. In McCall, the court specifically eschewed addressing the constitutionality of aggregate statutory caps on non-economic damages in actions beyond wrongful death actions. Miles, however, is a personal injury medical malpractice case and provides the court the opportunity to address the constitutionality of statutory caps as applied in these actions. If you remember, the same statutory provisions on non-economic damage caps govern both types of wrongful death and personal injury medical negligence actions.

In addition, the Miles case presents the court with the opportunity to address whether its decision in McCall should be applied retroactively. If applied retroactively, the McCall decision would invalidate previous instances when the statutory cap was used to limit non-economic damages aggregately. Accordingly, Miles now raises two distinct questions regarding retroactivity:  whether the legislation itself should be applied retroactively and whether the McCall decision should be applied retroactively.

While the Supreme Court of Florida has requested supplemental briefing, the court could nonetheless opt to decide the case on other grounds, leaving the questions that remain after McCall for resolution at a different time. However, Miles demonstrates the important questions regarding the availability of non-economic damages that still remain in the wake of McCall. If you have questions about possible recovery for an act of medical malpractice in South Florida or about the recovery you received in an earlier medical malpractice case, the South Florida attorneys at Frankl & Kominsky are prepared to offer assistance. If you are interested in a free evaluation, click here, or call 1-855-800-8000.