Lawyers, professors discuss ways around Fla. SC decision that struck down caps

TALLAHASSEE, Fla. (Legal Newsline) - Despite the Florida Supreme Court's recent decision to strike down a $1 million cap on non-economic damages in medical malpractice wrongful death lawsuits, many lawyers and legal scholars believe more can be done to limit the potential increase in those lawsuits in the future.

In March, the court found in a 5-2 ruling that the 2003 law that imposed the cap violates the state constitution's equal protection clause. The court also disputed the existence of the medical malpractice insurance crisis that legislators cited when they supported the law.

Bill Bell, general counsel of the Florida Hospital Association, contends that beginning in 1975, there have been three different periods in which Florida faced a crisis in either availability of medical liability insurance because insurers left the state, or affordability of medical liability insurance because costs skyrocketed.

Bell says each time legislators met in special medical malpractice sessions to come up with solutions, which included the cap on non-economic damages.

He explains that the cap was put into place after the Governor's Select Task Force on Healthcare Professional Liability Insurance released a study citing volumes of favorable testimony from industry experts, law professors, physicians and lawyers.

"It places some guidelines on what could be a very ambiguous award of damages," Bell said. "You could give the same case to 10 different juries, and they could come up with 10 wildly different amounts of pain and suffering, because there is nothing to guide a jury on what exactly is pain and suffering."

Bell points out that the Florida Supreme Court has upheld other caps on non-economic damages. These were related to a no-fault system, which doesn't require a determination of medical malpractice.

In May 2013, in Samples v. Florida Birth-Related Neurological Injury Compensation Association, the court affirmed that limited recovery under the Neurological Injury Compensation Association (NICA) was constitutional. Since 1988, this state-run association has compensated victims of birth-related injuries regardless of whether the doctor or hospital was at fault for their injuries.

In its ruling, the state Supreme Court agreed that the plan, including its maximum $100,000 parental provision award for pain and suffering, "provides an alternative remedy to the uncertain and speculative compensation parents might receive through traditional tort remedies."

From Bell's perspective, if this approach was applied to caps on non-economic damages in medical malpractice wrongful death cases, it might also garner support from the Florida Supreme Court in the future.

"I think the court is looking for something like a no-fault system in return for the caps," he said. "We have several examples of that already in the law, and potentially, there might be some other areas where that could be expanded."

Edward J. Carbone, a partner at Roig, Tutan, Rosenberg, Martin & Stoller in Tampa who represents hospitals and other health care providers, agrees that the Florida Supreme Court wrote its opinion in a way that leaves the door open for further legislative action.

"The Supreme Court has said, 'The way you did it isn't constitutional, but if it was done this other way, it might work,'" he said. "It will be interesting to see if there is any political will to try it that way and whether there is movement in the next legislative session."

Carbone contends that passing the cap in 2003 was a difficult legislative process. With all of the initial opposition to the law, he says, it's unclear whether legislators will be interested in pushing the issue again.

Even though a cap brings its benefits, lawyers and legal scholars say there are other avenues to curbing excessive medical malpractice wrongful death claims.

Bell explains that in the past decade, hospitals have focused on implementing a new patient-safety culture. He says they are working to improve their technology and procedures in order to better serve both patients and hospitals.

"The goal is to eliminate mistakes altogether, and then you won't have any need for caps," he said.

Alex Stein, a law professor at the Benjamin N. Cardozo School of Law at Yeshiva University in New York who focuses on medical malpractice and torts, argues that the best way to protect doctors against excessive liability is not through caps.

He points out that most doctors would rather not be known for committing medical malpractice and paying up to a million dollars to fix their mistakes. Instead, he says, they want to be protected from poor jury decisions through narrow, precise rules - an option that some jurisdictions have incorporated in recent years.

"Most medical malpractice suits are dismissed by courts because they don't have enough evidence," Stein said. "They don't have expert testimony that defines precisely, what is the medical malpractice? What is the rule of practice the doctor violated? And how exactly did it happen? This makes it extremely difficult for plaintiffs to win the suit."

As a result, Stein adds, only grossly negligent doctors are found liable for medical malpractice, except in what he feels are patient-friendly jurisdictions like Wisconsin, Washington, D.C., and Illinois.

Charles Silver, a law professor at The University of Texas School of Law and co-director of the Center on Lawyers, Civil Justice and the Media, agrees that caps may play a minor role in preventing medical malpractice lawsuits.

In recent years, he has worked with researchers on a series of studies on medical malpractice litigation in Texas. According to their research, medical malpractice lawsuits have declined nationwide, and there have been no significant trends in jury verdicts or total costs.

That means, Silver says, the crises doctors suffer when insurance rates spike reflect insurance economics, not changes in the litigation system.
He contends that the litigation system responds to the rate of injuries. He says while new medical products or drugs can cause spikes in injuries and resulting spikes in litigation, medical malpractice doesn't simultaneously affect large groups of patients.

"It's primarily surgeons of various types or doctors in hospitals doing things to people one at a time," Silver said. "Those practices don't change quickly, and the safety of the practice does not change quickly. So, the injury rates do not change quickly. Given that, there is no reason to expect the legal system to suffer spikes in liability."