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Florida Supreme Court throws out 2003 damage caps, centerpiece of Bush reforms

The Florida Supreme Court on Thursday rejected the centerpiece of the 2003 medical malpractice overhaul law, blasting the Legislature for creating an “alleged medical malpractice crisis” and concluding that the cap on wrongful death non-economic damages violates the state constitution’s equal protection clause.

The 5-2 ruling, written by Justice R. Fred Lewis, suggested that legislators created a crisis to push through the caps on damages in medical liability lawsuits which “has the effect of saving a modest amount for many by imposing devastating costs on a few.”

The caps limited payments for pain and suffering to $500,000 or $1 million, depending on the circumstances and the number of people involved. Lewis concluded the law unconstitutionally discriminates against “those who are most grievously injured, those who sustain the greatest damage and loss, and multiple claimants.’’

The decision will effectively remove the cap on so-called “non-economic” damages when someone dies because of medical malpractice. Victims whose cases were resolved between the time the law took effect in late 2003 and today, however, will have no recourse. The Florida Justice Association estimates there are more than 700 medical malpractice cases pending statewide.

“This is a monumental decision,’’ said Ken Sobel, a Fort Lauderdale trial attorney and past chairman of the FJA’s Medical Malpractice Bar. “It is being resoundingly applauded by our side of the bar, and quietly applauded by the defense bar.” Story here.

He said the law, a compromise drafted by legislators after a year-long debate, was widely considered unfair because a person injured because of medical malpractice was treated differently under that law than someone injured because of another kind of wrongful act or negligence.

The ruling, he predicted, will enhance the value of every case now pending, including those that do not involve a wrongful death claim.

The damage caps were initially pushed by former Gov. Jeb Bush, with the support of doctors, hospitals and insurance companies who viewed trials lawyers as their political nemesis. They argued the reforms were needed to curb the explosion of medical malpractice costs, which they said were forcing doctors to leave Florida or stop providing high-risk services.

The Florida Medical Association said Thursday that the damage caps have since helped reduce medical malpractice premiums and that the ruling would hurt the state’s ability to attract doctors.

“This is another example of the Supreme Court legislating from the bench and it is offensive that activist judges have taken the place of elected officials,” said Jeff Scott, FMA general counsel.

FMA president Alan Harmon credited the damage caps for helping to reduce medical malpractice premiums in recent years and warned that the "decision imperils our considerable efforts to make Florida the best state in the nation for physicians to practice medicine and for patients to receive care." 

Sen. Tom Lee, R-Brandon, who helped negotiate the compromise between the Senate, House and governor during the summer of 2003, after three special legislative sessions, said he remembers the debate “as if it was yesterday.”

The Senate was sympathetic to the trial lawyers, and the House and governor sympathized with the doctors. One of the most stark disagreements was over the equal protection issues, Lee said.

“The Senate ultimately capitulated to the governor and the House,’’ Lee told the Herald/Times. “It looks like, in 2020 hindsight, we could have avoided a lot of acrimony.”

The case was brought by the family of 20-year-old Michelle McCall who died after she bled to death following a caesarian section for the birth of her a son in February 2006 at a Fort Walton Beach hospital.

McCall’s estate sued the federal government because she was part of a military family and was treated by U.S. Air Force medical staff. A federal judge agreed that McCall had not received proper care and found that her parents and son should receive $2 million in non-economic damages. But he award was reduced to $1 million because of the 2003 law.

The 11th U.S. Circuit Court of Appeals in Atlanta ruled that the damage limits did not violate the U.S. Constitution, but said the Florida Supreme Court should consider state constitutional issues.

The damages suffered by McCall’s parents were determined to be $750,000 each, and that her surviving son sustained damages determined to be $500,000. But when the court applied the cap, the damages were cut in half.

The court heard the case in February 2012 and spent more than two years reviewing it before rejecting the damage awards as arbitrary and unfair.

“The statutory cap on non-economic damages fails because it imposes unfair and illogical burdens on injured parties when an act of medical negligence gives rise to multiple claimants,’’ Lewis wrote.

Lewis rejected the Legislature’s rationale for the damage caps saying “it bears no rational relationship to a legitimate state objective.”

“The Florida Legislature attempted to justify the cap on non-economic damages by claiming that ‘Florida is in the midst of a medical malpractice insurance crisis of unprecedented magnitude’,” he wrote.

He cited statistics that showed that during the purported medical malpractice crisis “the numbers of physicians in Florida were actually increasing, not decreasing” and noted: “Even the Task Force whose report was relied upon by the Florida Legislature employed extremely equivocal language and speculation when describing the existence of a crisis.”

Justices Peggy Quince, Barbara Pariente and E.C. Perry agreed with Lewis that the law was unconstitutional, but wrote a separate opinion challenging his critique of the Legislature, calling it an unprecedented “expansive, independent review.”

The justices, however, agreed on the main finding. Wrote Pariente: “there is no evidence of a continuing medical malpractice crisis that would justify the arbitrary reduction of survivors’ noneconomic damages in wrongful death cases based on the number of survivors.”

Justice Jorge Labarga concurred with Lewis’ opinion. Justice Ricky Polston dissented with the majority and wrote his own opinion, in which Justice Charles Canady concurred.

Polston said that the caps on non-economic damages were justified because they “rationally related to the legitimate state interest of decreasing medical malpractice insurance rates and increasing the affordability and availability of health care in Florida.”

The American Tort Reform Association, which along with the state and federal Chambers of Commerce have spent millions of dollars on political campaigns to push for damage caps in Florida and other states, called the decision a narrow ruling that applies only to wrongful death claims. They suggested the law could be fixed this legislative session.

“The court could have struck down limits on noneconomic damages more broadly but it didn’t do that,’’ said spokesman Darren McKinney. “Instead, the decision seems fairly narrow, dealing strictly with wrongful death lawsuits involving multiple claimants.

Lee, the current Senate Judiciary Committee chair, said he was skeptical whether another damage cap could pass before the end of the 60-day session in May. “It’s getting awful late to do much,’’ he said.





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Ed Jenkins

The citizens are outraged at these corrupt judges who must take benefits from immoral lawyers and their attempts to greatly damage our state which was making terrific progress in eliminating these lawsuits which have so greatly harmed our state in the past and only benefitted lawyers. The citizens call for impeachment of these corrupt judges who again have interfered with laws which greatly improve the business environment in the state and reduce costs for all citizens.


It is truly disgusting to read a judicial opinion find that a law is unconstitutional because they disagreed with the set of facts the Legislature used to come to a conclusion.

As a 20 year practicing attorney, I find this kind of judicial activism disgraceful.

It isn't the role of the court to second guess lawmakers as to the "why" they concluded what they did. The legislature isn't a lower court. They are the lawmakers.

Florida's court system is so influenced by personal injury lawyers is just flabbergasting.

This is a terrible ruling.


The real problem with the medical malpractice dilemma in this State is religious dogma, which puts the safety of the fetus above the life of the mother. Too many families are being victimized by ideology which reduces the options of physicians. If there is an argument to be made in capping medical malpractice claims, it belongs squarely in the lap of the hospitals and physicians which adhere to these 7th Century fundamentalist theories.


This ruling sets straight a previous wrong. The limit on caps allows the medical profession and insurance carriers not be accountable if they commit an error. What other industry is afforded this?

In addition, if the medical professionals and insurance industry don't pay for their mistakes, the burden lies on the tax payers to cover the injured party's medical cost.

Whether for justice and fairness reasons, or for fiscal responsibility, this was the correct decision.


Don't be fooled!! The real problem is not in the justice system but in the medical delivery system. Over 210,000 Americans are killed every year by malpractice and like drunk driving (less than 10,00 killed a year) every one of these deaths is preventable. At least when a drunk driver kills, someone people stand up for the victim, unlike in malpractice where the insurance industry and the hospitals gets the legislature to stand against the victim. And when verdicts are capped the costs usually get shifted from the wrongdoer and the insurer to the state and taxpayers.

Ed Jenkins

As we have seen and had been expected the scumbag lawyers have arrived to try to justify a court decision that cannot be logically defended and the citizens are so outraged by as it so greatly goes against their desires and can only raise their future costs. Even worse some of the leaches have tried to attack the most noble profession of doctors who are most likely great underpaid for the vital service they provide to the citizens as opposed to the scumbag lawyers who all citizens can live without and only act as a drain on society. It is equally outrageous that these scumbag lawyers should criticize medical expense insurance businesses which are simply entities that aggregate risk and generally lower costs for all involved with their greater purchasing power but over time run at losses excluding returns on investments generated from timing differences in payments and capital required to operated the business. The citizens will not allow this to be the final say and will return with more laws and rules to defeat these scumbag lawyers and the damage they do to our business friendly state.

glen broemer

Reagan was involved in high-profile conflicts with the protest movements of the late 60s era. On May 15, 1969, during the People's Park protests at UC Berkeley, Reagan sent the California Highway Patrol and other officers to quell the protests, in an incident that became known as "Bloody Thursday", resulting in the death of student James Rector and the blinding of carpenter Alan Blanchard. Reagan then called out 2,200 state National Guard troops to occupy the city of Berkeley for two weeks to crack down on the protesters. A year after "Bloody Thursday", Reagan responded to questions about campus protest movements saying, "If it takes a bloodbath, let's get it over with. No more appeasement."


What disgusts me is that this ruling stems from a case where a 20 year old mother of a child died and the lower court ordered that her parents were to get more EACH, than the son...

Sorry, but the loss of an adult child, while trajic, is not worth $1.5 million in NON-ECONOMIC damages.

Jack Adams

@Ed Jenkins, what data do you have to support your position that medical expense insurance businesses a/k/a insurance companies run at losses over time?

Can't take anymore

HRH JEB! will not be amused that some bunch of judges have attempted to overrule his imperial wisdom. Trial lawyers do not contribute heavily to the Republican Party and therefore must have not influence on persons who are not corporations.


I gotcha right where I wancha!


Jack Adams, Don't bother asking Ed Jenkins for facts. He posts his ignorant opinions disguised as "facts" on a regular basis.
Jeb Bush should get used to having his "legacy" overturned. After the November elections, his puppet state school board and Commissioner of Education will be gone.


The grip the Trial Lawyers have on the High Court is highly discouraging for businesses in this state. This is a terrible ruling that is going to result in huge premium increases for OBGYNs. Congratulations, Court. Great job making being a doctor more difficult because of these lawsuits every time there is a bad outcome.

Ron Caplan

Very simple I have been in the insurance industry for over 35 years I have not seen one medical practitioner reduce their income or give a patient a break if they have insurance! No medical school has reduced its admissions or the money they make to train a doctor or medical personnel! Truth is simple if you die because of medical preventable injury then you should be able to be compensated. We can establish guide lines for every type of case and place a realistic value on the injuries much like a w/c claim. So let's stop the games the providers have everything on their side and a patient has nothing on their side. Just like w/c!

Let's see who is living in poverty as a medical provider? They surely do not live in the average neighborhoods for the most part! It's a pay or die business!


It is very likely that few, if any of the bloggers bothered to read the Court's opinion before posting a comment. It is obvious that most of the bloggers simply wish to express their ignorance. They don't let the facts interfere with their opinions.

Linda DeRogatis

Unless you have lost a family member by a preventable death at the hands of a negligent doctor you cannot fully understand the ViCTORY we as Americans have obtained by this ruling. It is not a partisan issue, it is an American constitutional right which our forefathers and veterans have fought for and died for. More than 20 States have no caps including New Jersey and we have some of the best physicians. Talk to a survivor of a child, young adult, man, woman who were breathing, eating, loving one day and GONE the next. PREVENTABLE deaths. Tara Lynn De Rogatis Foundation.org

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