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Fla. Justices’ Medical Malpractice Cap Ruling May Mobilize Lawmakers

Fla. Justices’ Medical Malpractice Cap Ruling May Mobilize Lawmakers

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By Y. Peter Kang Law360, Los Angeles (June 9, 2017, 9:29 PM EDT) — The Florida Supreme Court’s recent split ruling that a 2003 state law capping noneconomic damages in medical malpractice cases is unconstitutional was a major decision which experts said was a big win for patients but may not be the end of Florida lawmakers’ efforts to enact tort reform bills.

In a 4-3 decision, the state’s highest court found that the law capping noneconomic damages at $500,000, or $1 million in the most egregious cases, violates the equal protection clause of the Florida Constitution because it arbitrarily reduces damage awards for patients who suffer the most serious injuries. The majority also said the impetus behind the law, a medical malpractice insurance crisis in Florida which purportedly drove physicians out of the state, either never existed or has since abated so the caps aren’t justified.

The ruling affirmed the Fourth District’s 2015 decision in North Broward Hospital District v. Kalitan, which reinstated a $4.7 million jury verdict that had been slashed by nearly $2 million due to the damages cap.

The long-awaited decision is a significant victory for patients, according to Richard “Bo” Sharp of Mallard & Sharp, a personal injury firm in Miami. The attorney said he was delighted to learn of the result and read the 30-page opinion five times in the hours after its release.

“It’s great when the people who have no voice, the weak and injured, are protected by the courts,” Sharp told Law360 in an interview. “Our firm was very thankful for the decision because it helps all those catastrophically injured patients in Florida that were being arbitrarily punished by the caps. It was a fair ruling and it was righteous.”

Sean Cronin, founding partner of medical malpractice plaintiffs firm Cronin Maxwell in Jacksonville, said he wasn’t surprised by the outcome given what he says was a faulty premise behind the law.

“It was all done under the pretext that there was a crisis in the state of Florida. I’ve been doing this for 20 years now and the crisis was made up and never existed,” he said. “There is a very small subset of patients who are severely injured and those are the ones this cap really affected the most. These are the people we want and need to get compensated for what has happened to them.”

However, Cronin said Florida lawmakers, spurred by hospital and physician lobbying groups, will continue to float legislation designed to shield health care providers from liability.

“They are absolutely going to continue to try,” he said. “The Florida Medical Association is very powerful in the state and this is a very important issue for them. It is a never-ending struggle to protect patients’ rights.”

Cronin said in the last two decades a number of tort reform proposals designed to thwart medical malpractice claims have been pushed forward by state lawmakers, with varying degrees of success.

A year after then-Gov. Jeb Bush signed into law the noneconomic damages cap, Florida voters approved a constitutional amendment setting a tiered limit on lawyers’ contingency fees in medical malpractice cases. The state Supreme Court later ruled that it was lawful for patients to sign waivers regarding contingency fee limits, thus circumventing the amendment.

But there are still a number of other approaches at the disposal of state lawmakers despite Thursday’s ruling, according to Mark Delegal, a Tallahassee-based Holland & Knight LLP partner specializing in health care public policy.

He said lawmakers could pursue legislation requiring medical malpractice claims to be first reviewed by expert advisory panels before a complaint can be filed; shorten the statute of limitations for medical negligence claims from two years to one; or bar malpractice plaintiffs from recovering the retail price of past medical expenses when the plaintiff’s insurer pays a discounted rate due to existing agreements with health care providers.

However, Delegal said the fiscal motivations behind such legislation may not be present today since health care providers have grown accustomed to high insurance premiums, while claims against physicians are at an historic low.

“We don’t know whether the striking of these caps is going to create an influx of claims against physicians,” he said. “What will happen, I believe, will be a watchful eye on medical malpractice insurance premiums. If they escalate, it will motivate physicians and hospitals to bring them down. Until that happens, I don’t see any legislation happening.”

While Cronin does expect future efforts by Florida policymakers to prevent medical malpractice victims from having their cases heard, he remains hopeful that the Kalitan ruling will serve as a deterrence for now.

“This is a very firm step in showing where Florida law is going to be for the near- to mid-term on this issue,” he said. “The issue is not dead, it will continue to be raised in the Florida Legislature but I think it will be harder to craft a law that is constitutional, based on this ruling.”

Vidian Mallard, Sharp’s partner at Mallard & Sharp, agreed with that assertion.

“Based on the Supreme Court ruling, I’m not worried about the Legislature doing anything anytime soon,” he said. “There can be no argument anymore in Florida about medical malpractice damages caps. That argument has now ended.”

–Additional reporting by Carolina Bolado. Editing by Pamela Wilkinson and Catherine Sum.

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