Posted June 9, 2017 2:34 PM
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Florida high court throws out med-mal caps

By Brendan Farrington
Associated Press writer

TALLAHASSEE, Fla. — Caps on how much money patients injured by a doctor’s mistakes can receive were declared unconstitutional by the Florida Supreme Court on Thursday, a decision that strikes down one of former Gov. Jeb Bush’s major policy victories.

The court ruled that the caps placed into law in 2003 were arbitrary and there’s no proof that they reduced malpractice insurance rates that lawmakers were attempting to contain.

Even if they have, there’s no present crisis to justify the caps. In a 4-3 decision, justices also said the caps unfairly hurt those most severely injured by doctors’ mistakes.

“The caps on noneconomic damages … arbitrarily reduce damage awards for plaintiffs who suffer the most drastic injuries,” the court said.

The law limited noneconomic damages, which includes pain and suffering, against doctors in malpractice case to $500,000, or $1 million if the injuries were catastrophic. The issue was so important to Bush that he called lawmakers back to the Capitol for three special legislative sessions to get a bill passed.

The case the court ruled on involves a woman who was severely injured while doctors performed wrist surgery to improve her carpal tunnel syndrome at a Broward County hospital.

An anesthesia tube punctured Susan Kalitan’s esophagus during the surgery. She awoke and complained of severe back and chest pain. Doctors were unaware of the injury and gave her pain medication and sent her home, according to court documents.

A neighbor checking on Kalitan the next day found her unconscious. She was rushed to the hospital where doctors performed life-saving surgery. She remained in a drug-induced coma for several weeks and later had additional surgeries and intensive therapy to be able to eat again, according to court documents. She continues to endure pain and mental trauma.

A jury awarded her $2 million for past pain and suffering and $2 million for future pain and suffering. A lower court judge determined that Kalitan’s injuries were catastrophic, but the noneconomic award was reduced by about $3.3 million because of the medical malpractice caps and separate law that limited the government-run hospital’s liability to $100,000.

“She suffered mentally and will for the rest of her life,” said Nichole Segal, a lawyer representing Kalitan. “She has issues raising her arms and going through the motions of daily life.”

Segal said the ruling not only helps a deserving client, but will change future malpractice cases from the moment they are filed. She said many plaintiffs were settling for less than they deserved because of the caps and some law firms weren’t taking up cases because they can be very expensive to litigate and the limits made them less profitable.

“This will affect every single person who brings a medical negligence case,” she said.

The Florida Medical Association, which supports caps, didn’t immediately comment on the ruling.

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