Articles Posted in Statutory Caps

photo_10943_20090512-270x300Last year, we posted about the Supreme Court of Florida’s decision in Estate of McCall v. United States, 134 So. 3d 894 (Fla. 2014), which held that caps on noneconomic damages in wrongful death medical negligence cases were unconstitutional under the equal protection clause of the Florida Constitution. In a recent case, North Broward Hospital District v. Kalitan, the Fourth District Court of Appeal, which encompasses both Palm Beach and Broward County, addressed a question that remained in the wake of McCall: whether the reasoning in McCall applies with equal force to noneconomic damages caps in personal injury medical negligence cases. In a decision with a far-reaching impact, the Fourth District Court of Appeal concluded that it does, and it held that noneconomic damages caps in personal injury medical negligence cases are also unconstitutional.

The events that led to the Kalitan litigation occurred in 2007. That year, the plaintiff in this action went to North Broward Hospital District for outpatient surgery to treat carpal tunnel syndrome in her wrist. The procedures required the plaintiff to be placed under general anesthesia. During intubation, which was required for administration of the anesthesia, the plaintiff’s esophagus was perforated. Prior to this incident, the plaintiff had never had bodily pain beyond symptoms associated with carpal tunnel. After awaking from the procedure, the plaintiff complained of severe pain in her chest and back. The anesthesiologist was notified. Unaware of the perforation, the anesthesiologist ordered that the plaintiff be administered a drug for chest pain. The plaintiff was later discharged, and a friend drove her home. The following day, the friend went to check on the plaintiff and found her unresponsive. The friend took the plaintiff to the emergency room, where the perforation was discovered. The plaintiff was rushed for emergency surgery. The plaintiff was in a drug-induced coma for several weeks thereafter and had to undergo several more surgeries and intensive physical therapy. She continues to suffer with persistent physical pain and mental disorders arising from the trauma that occurred.

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file5011246386402Typically, the thought of conceding liability in a negligence suit runs counter to conventional legal strategy. In fact, attorneys often spend considerable time trying to counteract even banal admissions that occur prior to formal litigation that could be construed as declarations of liability. However, a recent case coming from Florida’s Second District Court of Appeals demonstrates how a proactive admission of guilt can occasionally work in a defendant’s favor.

In Swanson v. Robles, the Second District Court of Appeals held that allowing evidence of a defendant’s drug use during the first phase of a trial when the defendant had already admitted liability for both compensatory and punitive damages was reversible error. The case arose from a traffic accident in October 2008. A truck being driven by the defendant struck a vehicle owned by the City of Tampa and a city employee who was unloading traffic counters at the rear of the vehicle. The city employee died immediately following the collision, and his estate brought a wrongful death action against the driver, seeking both compensatory damages for the deceased’s widow and compensatory and punitive damages for the estate. The defendant brought a motion to bifurcate the trial, so that evidence of his drug use (Xanax, methadone, and marijuana) would not be admitted and prejudice the jury. In light of his admission of liability, the defendant argued that such evidence was no longer probative with respect to determining whether or not he was liable for compensatory damages and punitive damages or for determining the amount of compensatory damages. The evidence was not excluded, and the defendant brought an appeal, arguing that permitting the evidence was in error.

The Second District Court of Appeal agreed. The Court found that, since the defendant had conceded liability with respect to both compensatory and punitive damages, evidence of his drug use was no longer relevant for determining liability for either sort of damages or with respect to determining the amount of compensatory damages. Although compensatory damages include “pain and suffering,” the court held that possible knowledge of drug use was not probative for determining the amount of damages reflecting loss of companionship and protection. In addition, the court held that, while evidence of drug use may be probative with respect to determining the amount of punitive damages, the amount of those damages would be handled in the second stage of the bifurcated trial, and thus the evidence of the drug use only served to inflame the jury during the first stage and lead to a possibly higher assessment of compensatory damages.

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openphotonet_P1040498%20(1280x854)After months of anticipation, the Supreme Court of Florida has issued its much-awaited decision in Estate of McCall v. United States of America. In a heavily divided opinion that spans nearly 100 pages, the majority of the court held that Florida’s statutorily imposed caps on wrongful death non-economic damages in medical negligence actions violate the right to equal protection afforded by the Florida Constitution. Although family members of the deceased person who died while receiving medical care from Air Force clinicians will welcome the news, the split decision leaves many unanswered questions that will likely need to be hashed out in other decisions.

In February of 2006, the deceased, McCall, was receiving care from family practice clinicians at a United States Air Force clinic when test results showed that her blood pressure was high and that she was suffering from severe preeclampsia, which required that labor be induced immediately. McCall eventually gave birth, but she later went into shock and cardiac arrest as a result of severe blood loss that occurred during the course of her labor and several associated treatments. Following this episode, McCall never regained consciousness and was removed from life support shortly thereafter.

This case arrived at the Supreme Court of Florida in somewhat atypical fashion. This wrongful death action was originally brought in Federal District Court, and the United States was found liable for McCall’s death. The federal court determined that there were economic damages amounting to nearly $ 1 million and non-economic damages amounting to $2 million, including $500,000 for the McCall’s son and $750,000 for each of McCall’s parents. Despite this finding, the Federal Tort Claims Act states that damages are to be determined using the law of the state where the tortious act occurred. Accordingly, the District Court applied Florida’s statutory cap on wrongful death non-economic damages in medical negligence actions, codified as § 766.118 of the Florida Statues. The law limits non-economic damage recovery from all defendants to $1 million in this type of suit, irrespective of the number of claimants. The decision was appealed, and the Federal Appeals Court upheld the application of the cap on damages, holding the cap did not constitute a taking under either Florida law or federal law and did not violate the Equal Protection Clause of the U.S. Constitution. However, since federal courts avoid rendering decisions with respect to unsettled state law, the federal Appeals Court granted the plaintiffs’ motion to certify several questions to the Supreme Court of Florida regarding the interpretation of Florida constitutional law .

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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.

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