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Florida Supreme Courts looks at retroactivity of malpractice caps

Several months ago we talked about the Florida Supreme Court ruling that a portion of the controversial 2003 law that placed caps on medical malpractice damages was unconstitutional. In March the high court ruled that the cap on wrongful death non-economic damages, such as those for pain and suffering, violated the state constitution's equal protection clause. Now the court is will be hearing arguments this week in the case that deals with injuries suffered by a patient before that law became effective.

The patient had a tumor removed after being diagnosed with melanoma in 2002. She was later told by a surgical oncologist that she needed another operation on her leg because the first one failed to get all of the melanoma. The woman suffered complications, including an infection, from the second surgery and, allegedly, has permanent injuries. To make matters worse, the second surgery was reportedly revealed by later tests to be unnecessary. The woman and her husband sued the doctor in 2006, nearly three years later.

The couple was awarded pain-and-suffering damages by a Miami-Dade jury of $1.5 million. However, they were lowered to $500,000 by another court to conform to the new limits that became effective in 2003. In some cases, depending on the number of victims and the circumstances, that limit could go as high as $1 million.

The question facing the Florida justices is whether the medical malpractice damage limits can be applied retroactively. The plaintiff's attorneys say that doing so violates her right to due process. Meanwhile, the physician's attorneys say that retroactivity was included in the law because the Florida medical community was facing a "crisis" of soaring malpractice insurance costs.

Unlike the case the Florida Supreme Court ruled on in March, this one does not involve a wrongful death. It will be interesting to see how this plays out. Usually, justices do not issue rulings immediately. It could be months before they decide on this matter.

Regardless of the caps, medical malpractice cases still move forward in our state. Victims and their families can still receive substantial compensatory as well as non-economic rewards. Floridians who believe that they have experienced medical malpractice should definitely determine what their legal options are.

Source: Orlando Sentinel, "High court to weigh in on medical malpractice caps again" Jim Saunders, News Service of Florida, May. 29, 2014

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