The saying “bad facts make bad law” depends on your perspective. For physicians, their medical malpractice insurers, and the attorneys who defend medical malpractice cases, three decisions illustrate how this adage can play out. Over the past two years Florida courts have effectively eviscerated Florida’s limitation on non-economic damage awards. In fairness, the cases used for this result all contained “bad facts.”
The Florida Legislature established caps on the non-economic damages for negligence (medical malpractice) that can be awarded in most situations. Pursuant to §766.118, F.S., non–economic damages in a personal injury or wrongful death case involving a practitioner are limited to $500,000.00. However, if the practitioner’s malpractice results in death or permanent vegetative state, the damages cap is set at $1,000,000.00.
In 2014, the Florida Supreme Court held the non-economic damage cap for medical malpractice cases resulting in a patient’s death or permanent vegetative state ($1,000,000), was unconstitutional. The case, Estate of McCall v. United States, involved the tragic death of Michelle McCall and a U.S. Air Force clinic. Ms. McCall subsequently died at Fort Walton Beach Medical Center as the result of severe blood loss sustained during labor.
The jury considering this case found the Air Force physicians negligent and awarded Ms. McCall’s estate $2,000,000 in non-economic damages. Relying on §766.118, the federal district court reduced the award to $1,000,000, which the estate appealed. While it affirmed the district court’s holding, the United States Court of Appeals for the Eleventh Circuit sent the case to the Florida Supreme Court in order to resolve the constitutionality of the non-economic damage cap in these cases, under the Florida Constitution. The Florida Supreme Court found that, with respect to medical malpractice resulting in death or a persistent vegetative state, the non-economic damage caps were unconstitutional, because they (i) were arbitrary, (ii) had an irrational impact on all plaintiffs in similar cases, (iii) had no rational basis, and (iv) failed to achieve the intended impact- to help control the cost of medical malpractice insurance.
McCall did not resolve the constitutionality of Florida’s non-economic damage caps in medical malpractice cases that did not result in the patient’s death or persistent vegetative state. That was the question raised later that same year in North Broward Hospital District v. Kalitan. Perhaps not surprisingly, a 3 judge panel of the Fourth District Court of Appeals (Broward, Palm Beach, Martin and St. Lucie Counties) adopted the Supreme Court’s reasoning in McCall, and held the application of the non-economic damage caps in §766.118(3), F.S., in a medical malpractice case not involving a patient’s death or persistent vegetative state also is unconstitutional under the laws of the State.
Returning to the theme of bad facts creating bad law, in August, 2010 a pregnant woman in presented herself to Peace River Medical Center three times within 13 days. Each time she presented with worsening symptoms of early onset pre-eclampsia. Her physicians failed to administer antenatal corticosteroids, which might have enhanced the development of the fetus’ brain and lungs. The mother was admitted to Peace River, finally, on her third visit. Although the fetus’ gestational age was 26 weeks, the physicians did not transfer her to a Level III facility. Tragically, the child, a girl, was born with severe neurological impairments that will make her dependent on the assistance of others for the rest of her life.
On behalf herself and her child, the mother sued the hospital and the attending physicians for negligence (medical malpractice). One of the physicians settled the case prior to trial. A jury found the hospital and the remaining physician-defendant liable and awarded a total of $23,187,134 to the plaintiffs. The mother’s award, $9,637,134, included 4,000,000 in non-economic damages; the child received $13,550,000, including $1,250,000 in non-economic damages.
The hospital appealed, arguing that the non-economic damage awards exceeded the cap established in §766.118(3), F.S. However, the Court of Appeals upheld the awards and noted that “the Supreme Court’s reasoning in McCall provides important insight into how this tribunal and lower courts are likely to view challenges to Florida’s future efforts to limit non-economic damages.” Port Charlotte HMA, LLC, d/b/a Peace River Regional Medical Center v. Inla Suarez, individually and as Parent and Natural Guardian of K.D.P., a minor, No. 2D15-3434 (Oct. 26, 2016). (The jurisdiction of the 2nd District Court of Appeals includes most of central Florida including Orlando, Tampa, St. Petersburg, and Naples.)
The decision of the Suarez panel to follow the reasoning in Kalitan is significant for several reasons. First, it established the law concerning the status of the non-economic damage caps in that District. Second, it harmonized the law concerning non-economic damage caps in two of the State’s most populous Circuit Courts of Appeals. Perhaps more importantly, it adds further support to the proposition that all of Florida’s non-economic damage caps are likely to be found unconstitutional by other Courts of Appeals.
The elimination of Florida’s non-economic damage caps should motivate physicians and other healthcare providers to re-evaluate their medical malpractice coverage limits and asset protection plans.
An important, but sometimes overlooked, aspect of this re-evaluation involves critically reviewing of the practice’s risk management and patient relationship policies and procedures. This review can help achieve four goals: (1) Minimize the likelihood of an untoward event; (2) mitigate any potential damage resulting from an allegation of malpractice liability; (3) demonstrate that the practice and practitioner have taken reasonable steps to avoid causing harm; and (4) develop a protocol for dealing with these unanticipated events.
As a first step, every physician, and every other healthcare provider, should discuss the impact of the decisions and the measures that should be taken to adjust for these legal developments with their health law counsel and other appropriate consultants in order to determine what policies and procedures should be adopted or modified.
By Stephen H. Siegel, Esq.
With over 30 years of experience, Mr. Siegel represents a wide range of healthcare providers and suppliers such as physicians, group practices,, outpatient facilities, and clinical laboratories. He is a Florida Board Certified Health Lawyer and also Certified in Healthcare Compliance by the Health Care Compliance Association. Mr. Siegel makes presentations to various professional organizations, such as the South Florida Hospital and Healthcare Association, the Florida Bar, the Florida Institute of Certified Public Accountants, and the American Health Lawyers Association. He received his B.A. from Florida State University and his J.D. from the Georgetown University Law Center. You can reach Mr. Siegel at either firstname.lastname@example.org or (305) 373- 9424.