A case heard before the Florida Supreme Court has the potential to drastically change the amount of compensation medical malpractice victims can legally recover.
The Broward County medical malpractice claim stems from injuries the plaintiff, Susan Kalitan, received during surgery for carpal tunnel syndrome. Kalitan underwent outpatient surgery at North Broward Hospital District in 2007.
For the procedure, Kalitan was put under general anesthesia. Her esophagus was perforated during intubation, and although she complained of severe chest and back pain at the hospital, she was sent home without the perforation being discovered.
The day after Kalitan’s release, a neighbor found Kalitan unresponsive. She required surgery to repair her esophagus and was put in a drug-induced coma for weeks. Intensive therapy was required to help her regain movement and learn to eat again.
Kalitan filed a medical malpractice lawsuit and won, with the jury awarding her $4,718,011 in total damages. This amount included $2 million for past pain and suffering and $2 million for future pain and suffering. These types of damages are called noneconomic damages, which are limited under Florida law.
Noneconomic Damages Caps in Florida Malpractice Cases
In 2003, the Florida legislature approved and former Gov. Jeb Bush signed a law that places a cap on the amount of noneconomic damages that can be awarded in personal injury medical malpractice cases. The law was in response to a perceived crisis in malpractice cases in which unpredictability in damage awards was said to drive up insurance rates and, in the long run, health care costs for consumers.
Here is the current law, Florida Statute 766.118:
(2) LIMITATION ON NONECONOMIC DAMAGES FOR NEGLIGENCE OF PRACTITIONERS.—
(a) With respect to a cause of action for personal injury or wrongful death arising from medical negligence of practitioners, regardless of the number of such practitioner defendants, noneconomic damages shall not exceed $500,000 per claimant. No practitioner shall be liable for more than $500,000 in noneconomic damages, regardless of the number of claimants.
(b) Notwithstanding paragraph (a), if the negligence resulted in a permanent vegetative state or death, the total noneconomic damages recoverable from all practitioners, regardless of the number of claimants, under this paragraph shall not exceed $1 million.
To put this in easier to understand terms, non-economic damages can’t be more than $500,000 per person who filed the lawsuit, and no medical practitioner can be liable for more than $500,000 in non-economic damages. Also, the total non-economic damages that all plaintiffs can recover from all practitioners cannot be more than $1 million.
The law means that if someone was in a permanent vegetative state because of medical malpractice, the most that could be collected from ALL the doctors would be $1 million in total. While that may sound like a lot, consider how you would value your quality of life after being severely impaired. Almost everyone who has suffered as a result of medical malpractice would gladly trade the money for not being injured. What is a full life worth? For example, if a young father and family with small children is left in a vegetative state, will $1 million really provide a reasonable amount?
Because of statute 766.118, the trial judge in Kalitan’s case reduced the noneconomic damages by almost $2 million, and also cut the damages by an extra $1.3 million because the liability of the hospital, as a sovereign entity, was capped at $100,000.
“Restricting damages because of how they occurred is, I feel, very unfair and a violation of our due process rights under the constitution,” said Lisa Levine, a Fort Lauderdale medical malpractice attorney. “If you’re killed in an auto accident in Florida, your family is entitled to damages for their loss. If you die due to medical malpractice, unless you have a surviving spouse or young children, a case cannot be filed against the negligent doctor at all. Why the difference? The doctors have lobbied the Florida legislature under the guise of “tort reform” and insurance crises to limit doctors’ responsibility.”
Appealing to a Higher Court
Kalitan appealed her case, and the Fourth District Court of Appeal reversed the decision and ruled that she should get the total damages as awarded by the jury.
The defendants, North Broward Hospital District, et al., appealed the case to the Florida Supreme Court, arguing that the wrongful death malpractice case the Fourth District based its ruling on should not apply. Under that case, Estate of McCall v. United States, the Florida Supreme Court ruled that the $1 million medical malpractice cap on wrongful death claims was unconstitutional under Florida’s constitution. The justices ruled 5-2 in favor of the victim’s family. The defendants in Kalitan’s case say that ruling only applied to cases with multiple people claiming damages.
Kalitan’s attorneys argued the McCall decision did not only apply to cases of multiple claimants and that the noneconomic damage caps are not actually serving to reduce malpractice insurance costs, which was the rationalization for the law in first place. They further argued that the caps are unconstitutional and violate the victim’s right to a trial by jury by denying the damages awarded by the jury.
The Florida Supreme Court heard arguments in the case in June but has yet to issue a decision.
Lisa Levine is an expert medical malpractice attorney located in Broward County, Florida. For more than 30 years, she has handled cases throughout Florida and the U.S.