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Bill would cap pain and suffering in med mal cases

Senior Editor Regular News

Reviving claims that Florida faces a malpractice insurance crisis, a House panel has voted to reinstate caps on so-called “pain and suffering” damages for medical negligence.

The measure includes a legislative finding that criticizes the Florida Supreme Court for overturning identical caps the Legislature imposed in 2003.

TOMMY GREGORY“This is clearly the Legislature saying, ‘Hey, Supreme Court of Florida, you need to respect the separation of powers,” said Rep. Tommy Gregory, R-Sarasota, who is sponsoring the bill. “You decided these cases contrary to legislative intent.”

The measure would restore a graduated scale of caps on non-economic damages that includes a $500,000 limit on claims against practitioners, or $1 million in cases involving death or a persistent vegetative state. The same caps for non-practitioners would be $750,000 and $1.5 million, respectively.

The scale would be based on such things as the number of claimants and types of defendants.

The House Civil Justice Committee voted 9-6 to approve the measure, PCB CJS 19-02, on March 13.

Supporters cited statistics that show Florida’s loss rate, a calculation based on the average claim cost and annual volume of medical claims, is the highest in the nation and twice the national average.

“Medical resources and healthcare are finite, and we know we have a shortage of physicians in the state and around the country,” Gregory said.

Higher malpractice rates encourage doctors to order unnecessary tests and procedures, and that drives up healthcare costs for everyone, Gregory said.

But the crisis argument failed to sway the Florida Supreme Court, which struck down the caps in two closely watched cases, the most recent being North Broward Hospital District v. Kalitan, 219 So. 3d 49 (Fla. 2017.)

In Kalitan, the majority found that the caps violated the equal protection clause of the Florida Constitution because they distinguished between different types of injuries and therefore “unreasonably and arbitrarily limit[ed] recovery of those most grievously injured by medical negligence.”

Justices also found the caps failed the rational basis test because they were not reasonably related to a legitimate government interest, with “no evidence of a continuing medical malpractice crisis that would justify the arbitrary reduction of damages.”

Gregory, an attorney, said the Supreme Court overstepped its bounds.

“It’s the Legislature’s prerogative to decide whether a medical malpractice crisis exists, not the Supreme Court’s.”

Kalitan affirmed a 2014 Supreme Court ruling known as McCall v United States, in which the majority referred to an “alleged medical malpractice crisis.”

Rep. Amy Mercado, D-Orlando, offered an amendment that would eliminate a current statute that prevents some parents and adult children from recovering damages for wrongful death caused by medical negligence.

Stephen Cain, a Miami lawyer representing the Florida Justice Association, told the panel the amendment would end a restriction that turns some medical negligence victims into a “free kill.”

“If you have, as a parent, an adult child, 26 years old, who you love, who you care about, there’s no compensation for your loss,” Cain said. “There is no value for human life under this system.”

Medical malpractice insurance industry lobbyist Mark Delegal warned that the move would be counter to the bill’s purpose.

“I can’t say enough bad about this amendment,” Delegal said. “This is a long-fought battle, we oppose it, this will raise rates.”

The amendment failed.

Rep. Ben Diamond, D-St. Petersburg, offered another amendment that would have stricken the language chastising the Supreme Court.

“I filed this amendment because I have a principled concern with what we’re doing here,” Diamond said. “When I read these cases, what I see is that the Florida Supreme Court is doing what courts do, which is interpreting the constitution.”

The amendment also failed.

The proposed legislation would also attempt to crack down on so-called “phantom costs” by requiring juries to only consider what medical providers are willing to accept to settle a bill, not what they originally charge.

Another provision would make it easier for doctors to negotiate privately with injured patients or their survivors to avoid litigation.

The panel passed the medical negligence caps less than two weeks after voting to impose a $1 million cap on non-economic damages in personal injury and wrongful death cases.

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