Malpractice Caps in Flux in Florida

By Alicia Gallegos Florida, Missouri, News Source

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  • August 24, 2014

Less than 4 months after the Florida Supreme Court struck down the state’s wrongful death non-economic damages cap, the fate of the state’s personal injury medical malpractice award limit may also be in jeopardy.

The state’s highest court heard oral arguments in June regarding Myles et al. v. Weingrad, an injury malpractice case that focuses on whether Florida’s $500,000 medical malpractice noneconomic damages cap can be applied retroactively. However, after the court in March ruled that the state’s wrongful death cap was unconstitutional, the plaintiffs in Weingrad now argue the injury limit should be thrown out on constitutional grounds.

The personal injury malpractice cap is indeed in danger of being overturned, said Jeff Scott, general counsel for the Florida Medical Association. The FMA is not directly involved in the case.

“Given the track record of the (Florida) Supreme Court, one would have to conclude the likelihood of a favorable opinion is slim,” Mr. Scott said in an interview.

The case stems from leg surgery performed on Kimberly Ann Miles by Aventura, Fla.–based surgeon Dr. Daniel Weingrad. Ms. Miles claimed the surgery to remove residual melanoma was unnecessary and resulted in ongoing pain. A jury awarded Ms. Miles and her husband $1.5 million in noneconomic damages and $16,000 in economic damages.

Dr. Weingrad requested that the trial court reduce the noneconomic damages award to $500,000 in accordance with the state’s cap, enacted in 2003. The plaintiffs argued the statute was implemented after the alleged negligence occurred and should not apply. An appeals court ruled in favor of Dr. Weingrad, and the plaintiffs appealed to the Florida Supreme Court.

Before Florida Supreme Court justices heard the case however, they reviewed McCall v. United States in which they overturned the state’s $1 million wrongful death damages cap. The award limit violated plaintiffs’ equal protection rights, judges said. In the months following the decision, plaintiffs’ attorneys have tried to get the injury award limit struck down by citing language in McCall, said Dinah S. Stein, a malpractice defense attorney who represents Dr. Weingrad.

“The plaintiffs’ bar has become fired up about” the McCall ruling, she said. “It’s our job to explain to the courts it’s not as far reaching as the plaintiffs’ bar would like them to think. (McCall) is limited. It doesn’t apply here; it’s prospective only and only applies to per-claim caps.”

In Weingrad, the state Supreme Court has the option of ruling on the injury cap’s constitutionality or deciding only whether the limit can be applied retroactively. Other state courts faced with cap retroactivity questions have declined to immediately address constitutional issues. The Missouri Supreme Court for instance, in 2010 ruled that the state’s noneconomic damages cap in medical malpractices cases could not be applied retroactively in Klotz v. St. Anthonys Medical Center.

“The Supreme Court’s opinion was very limited, and they never addressed the overriding issues of the general constitutionality of caps,” said J. Thaddeus Eckenrode, a malpractice defense attorney who represented the defendant in the Missouri case. “To that extent, it was surprising, although I think many people thought the court would rule against the use of the caps. All the court held was that in this particular case, since the plaintiff’s cause of action accrued before the new cap law went into effect, that law could not be applied to his case.”

However, the same court held in 2012 that Missouri’s noneconomic damages cap violated a plaintiff’s right to a jury trial and overturned the award limit. Other noneconomic damages caps have faced similar challenges recently. The Georgia Supreme Court in 2010 found unconstitutional the state’s $350,000 cap. A proposed ballot measure in California aims to quadruple that state’s $250,000 cap.

Significant conflicts among court precedents exist across the country about the constitutionality of lawsuit award limits, Mr. Eckenrode said.

“Nearly any state’s highest court can find support for their decision to either uphold or throw out caps,” he said in an e-mail. “As you examine the notion of caps around the country, you’ll find a relatively even split of states with caps in place and states that have thrown them out. It seems to be a political hotbed issue and, depending on the philosophical leaning of any state’s legislature and/or Supreme Court, one can take a pretty educated guess as to what the immediate future holds for caps in a given state.”