WASHINGTON, May 16, 2015 – The Florida Supreme Court has overturned a 2003 law that limited the amount of compensation survivors could recover in wrongful death cases. Ms. McCall died several days after giving birth due to negligent medical care. Her family sued and won just under $3 million. Then injustice hit: the verdict was reduced to just under $2 million in compliance with Florida’s arbitrary limit on damages.
That the law was overturned is a victory for Florida patients and families.
America’s civil justice system was attacked several decades ago. The movement became known as “tort reform.” The attackers, consisting mostly of insurance companies and big businesses, wanted to pay less, or nothing at all, when those they insured or employed were harmed.
“Tort reform,” where successful, has deprived Americans of real justice. One way tort reformers found success in varying degrees was by barraging state legislators and the public with false and misleading claims. Phrases such as “too many lawsuits,” and “frivolous lawsuits,” and “greedy trial lawyers” were used to influence state legislators to pass laws limiting the responsibility of negligent doctors, pharmaceutical companies, tobacco companies, automobile manufacturers, and other corporate entities.
Slowly, the claims have been exposed as false and bad laws have been struck down, allowing Americans appropriate access to justice.
In one arena, medical negligence claims, “reformers” lobbied relentlessly to convince state legislators that there were too many frivolous lawsuits, that medical malpractice lawsuits were both driving up the cost of the insurance for doctors, and that many doctors were leaving their practices because of the fear of being sued and because of the cost of the insurance.
- Despite the shocking number of medical errors (preventable medical errors are the 6th biggest killer in America , almost 100,000 Americans every year), few injured patients ever file a medical negligence lawsuit, and fewer still file frivolous claims. Research shows that almost all medical negligence claims are meritorious;
- Medical negligence “reform” is profitable for insurers and decreases patients’ rights. Most research has shown that despite the number of claims being stable for decades, the insurance companies have drastically raised physician premiums to build huge surpluses. States that have enacted financial limits on damages have seen their hospitals and the insurance companies providing them coverage increase profit margins. Increases benefit the corporations, yet they fail to cut the prices they charge patients and health insurers;
- Doctors are not leaving. This myth, or misrepresentation, that doctors are fleeing and retiring early because of the fear of lawsuits and rising insurance premiums, has proved to be either unrepresentative isolated events, or simply false. The occasional publicized accounts of doctors fleeing states provide spin for the “reformers,” but data from the American Medical Association (AMA) shows that physician numbers have been increasing in all fields for many years. Not only are there record numbers of doctors, the increase has also significantly outpaced population growth. There are now twice as many physicians per 100,000 per capita as there were when the AMA began tracking figures in the 1960s.
Further, a large body of research has found that the number of doctors in a community is not connected to insurance premiums. Researchers at the National Bureau of Economic Research (NBER) concluded, “The arguments that state tort reforms will avert local physician shortages or lead to greater efficiencies in care are not supported by our findings.”
Florida’s now overturned 2003 law placed a financial limit on the amount of money a victim of medical negligence could recover for “non-economic” losses. This is called a “cap” on damages.
Non-economic damages compensate for harms and losses that cannot be measured by a dollar-for-dollar analysis. Concepts of disruption of life, physical pain, mental or psychological suffering, embarrassment, distress, and the value for loss of life, all of which are not medical bills or lost income, are referred to as non-economic damages, and are routinely the target of tort reform campaigns. Punitive damages are also often referred to in these conversations as “non-economic,” as these damages may be available and awarded to victims, not to compensate, but to punish the wrongdoer.
At the heart of the Florida case were issues at the core of our democracy. The McCall’s attorneys argued that Florida’s statutory limits violated the family’s rights of equal protection, trial by jury, access to the courts, and separation of powers under the Florida Constitution.
The Florida Supreme Court struck down the law on equal protection grounds, concluding that:
“The statutory cap on wrongful death noneconomic damages fails because it imposes unfair and illogical burdens on injured parties. In such circumstances, medical malpractice claimants do not receive the same rights to full compensation because of arbitrarily diminished compensation for legally cognizable claims.”
Florida Court Says There is No Medical Malpractice Crisis
The Court went even further, noting, “…the statutory cap on wrongful death noneconomic damages does not bear a rational relationship to the stated purpose that the cap is purported to address, the alleged medical malpractice insurance crisis in Florida.”
Tort reform advocates used their familiar stale and false arguments, crying that there were too many frivolous lawsuits and that the increase in medical liability insurance premiums was the cause of doctors leaving Florida. The Court disagreed and wrote, “…the claim that Florida was in the midst of a bona fide medical malpractice crisis, threatening the access of Floridians to health care, is dubious and questionable at the very best.”
Home Run for Justice! Court goes still further and says: Insurance Companies Are Hurting Doctors
The court also noted that between 2003 and 2010 there were four insurance companies that provided insurance for doctors with an increase in their net income of more than 4300 percent. With that kind of income, the court wrote, “the insurance industry should pass savings onto Florida physicians in the form of reduced malpractice insurance premiums.”
Eliminating an arbitrary “cap” on damages is a positive step in reducing one of the insidious effects “tort reformers” had on our civil justice system. Unfortunate families, such as the McCalls, who suffer needless loss, will never find solace with money damages for their loss. However, when they go to court for some measure of redress, it is appropriate that the laws do not submarine their efforts. Now, in Florida, a bad law has been declared unconstitutional, damage caps are eliminated, and justice is available.
The American system of civil justice makes us safer. If doctors know there is a limit on how much they have to pay for the mistakes they make, they can write off the concern and continue unabated acting without caution. This legal system is the only effective means for holding negligent health care providers accountable.
Other disciplinary mechanisms do not work and fail to eliminate the core problem, negligent care. As an example, state medical boards are supposed to discipline doctors who consistently violate standards of care. Yet two-thirds of doctors who make 10 or more medical negligence payments following verdicts against them are never disciplined. Further, almost half of all hospitals, which arguably are supposed to be on the “front lines” of patient safety, have never reported a disciplinary action against one of their doctors since the National Practitioner Databank was created in 1990.
The civil justice system holds medical care providers and insurance companies accountable. It is this accountability that forces the development of patient safety systems that in turn seek to prevent negligence before it occurs. This accountability works: hospitals, health systems and entire medical fields have changed and improved dangerous practices because of the civil justice system.
Congratulations to the clear thinking Florida Supreme Court. A happier day now exists in Florida, where Mickey Mouse and mostly great weather already serve up that status.
Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980. He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website. He is available to speak to your group on numerous legal topics.
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