As an Orlando medical malpractice lawyer, I eagerly await Thursday mornings. Wherever I am, the Florida Supreme Court’s weekly release of opinions is on my mind or on my computer screen. After the Florida legislature banged its final gavel for the 2013 session, medical malpratice lawyers, hospitals, doctors and insurers turned their eyes back to the Florida Supreme Court – waiting for its decision in the case of McCall v. United States.
Following the 2003 egregious tort reform, too many patients and their families have been deprived of fair compensation when harmed by careless doctors and hospitals. The Florida Supreme Court in McCall will determine whether Florida’s medical malpractice caps on pain and suffering damages are constitutional. Presently, Florida Statute section 768.118 sets forth an arbitrary and capricious limit on the amount of money a jury may award an injured plaintiff and their family for pain and suffering from a medical malpractice claim.
While no one knows how the court will rule, recent court decisions involving birth-related injury and arbitration offer hope for Florida patients and families. In Samples v NICA, the parents of a brain injured child challenged the constitutionality of a provision of the statutes creating the Neurological Injury Compensation Association. The Samples argued the statute provided unfair and unequal compensation to families with two parents versus families with only one parent. That is, with a one-parent family, that one parent can receive $100,000 for his/her pain and suffering. However, if there are two parents, each parent is limited to something less than that amount. While the court upheld the constitutionality of the statute, it did so based on the need to preserve the actuarial soundness of the “no-fault” program. Importantly, while the District Court relied upon the legislature’s finding of a medical malpractice crisis, the Supreme Court did not.
In Franks v. Bowers, MD the Florida Supreme Court struck down a private, medical malpractice arbitration provision that differed substantially from Florida's statutory arbitration provision. The majority opinion written by Justice Perry was joined by Justices, Lewis, Labarga, Pariente and Quince. These five justices agreed that the statutory scheme of the arbitration provisions in Chapter 766, which provided benefits to patients in return for the limitations on damages, was critical to the Court’s earlier decision in University of Miami v. Echarte, 618 So.2d 189 (Fla. 1993) – finding it constitutional.
Perhaps the Court will decide in McCall that there was the absence of sufficient proof of a medical malpractice crisis; or, that there were alternative remedies available and no justification to strip precious rights for those who suffer the most harm from malpractice. Whatever the outcome in McCall - theses decisions certainly foreshadow the type of analysis we can expect…hopefully soon!