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Medical Malpractice Caps Emerge in Senate

By Jim Saunders Jan 22, 2024


TALLAHASSEE — Florida senators Monday began moving forward with a proposal that would make major changes in the state’s medical-malpractice laws, including limiting pain-and-suffering damages in lawsuits against doctors and hospitals.

The proposal refueled a decades-long debate in the Capitol about damage caps, pitting doctors, hospitals, insurers and business groups against plaintiffs’ attorneys and people who said they had suffered from malpractice.

The Senate Judiciary Committee voted 8-2 to support the bill (SB 248), which initially called only for revamping another medical-malpractice law. The committee added the proposed caps to the bill.

Supporters of the caps said they are needed to hold down medical-malpractice insurance rates and help attract doctors to Florida.

“There is a malpractice crisis, no matter how you look at it,” said Charles Chase, an anesthesiologist who represented the Florida Osteopathic Medical Association at Monday’s meeting. “Florida is up at the top in almost every statistical category, malpractice.”

But opponents of the caps said they would shortchange people who have been injured or died because of the negligence of doctors and other health providers.

“There has never been any evidence that these cases are brought frivolously,” Senate Minority Leader Lauren Book, D-Davie, said. “These are a lot of times the worst of the worst.”

Under the proposed caps, a plaintiff in a personal-injury or wrongful-death case involving medical malpractice could receive a maximum of $500,000 in “non-economic damages” from doctors or practitioners, regardless of how many practitioners are liable. The cap would be $750,000 in lawsuits against hospitals or other “nonpractitioners.”

Lower caps would apply in lawsuits against doctors who provide emergency care and lawsuits involving Medicaid patients. The caps would not apply to “economic” damages, which involve such things as lost compensation.

Malpractice caps have long been a contentious issue. The Legislature in 2003 held special sessions before passing a series of caps on non-economic damages.

But the Florida Supreme Court in 2014 and 2017 rulings struck down those caps, finding that they were unconstitutional.

Senate Judiciary Chairman Clay Yarborough, R-Jacksonville, said the caps approved by the committee Monday were designed to address the Supreme Court’s concerns, including about equal-protection violations. Also, the makeup of the Supreme Court has changed dramatically since 2014 and 2017, with five of the current justices appointed by Republican Gov. Ron DeSantis.

The committee’s move Monday to tie the proposed caps to the bill about the other medical-malpractice law created an unusual dynamic.

That law prevents adult children from collecting pain-and-suffering damages in lawsuits involving the wrongful deaths of their parents. It also prevents parents from recovering the damages in the deaths of adult children over age 25.

The bill would allow adult children and parents to seek damages in such cases.

Doctors and insurers in the past have fought similar proposals. But they were willing to go along Monday when the proposed change was coupled with the overall caps on non-economic damages.

“If we are going to remove that prohibition (on pain-and-suffering damages in the adult wrongful-death cases), then we also must have some counterbalance in the system,” said Andrew Bolin, a medical-malpractice defense attorney who represented the Florida Justice Reform Institute, a group that lobbies for lawsuit limits.

Lawmakers from both parties supported the underlying bill, but Yarborough indicated that tying it to the caps was the only way to build enough support to move forward.

“This is hard,” Senate Majority Leader Ben Albritton, R-Wauchula, said. “It’s hard to strike balance.”

A House bill (HB 77) has been filed but has not been heard in committees. It does not include the proposed caps.