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Florida medical community has few options after cap on non-economic damages shot down

by W.J. Kennedy | Jul. 21, 2017, 1:19pm

TALLAHASSEE - The Florida medical community is still weighing its next steps following the June 8 Florida Supreme Court ruling, North Broward Hospital District v. Kalitan, that declared caps on non-economic damages (pain and suffering) unconstitutional. Options range from the futile and expensive to none.

Jeff Scott, general counsel of the Florida Medical Association, said they could appeal to the Legislature to approve another measure that capped damages, but “with the same activist court we’re going to get the same result.”

The other option, he said, would be a constitutional amendment, but it would be a “very expensive proposition.”

Scott, and William Large, president of the Florida Justice Reform Institute, said that the Legislature approved the caps in 2003 after months of research by the House and by a task force created by the governor responding to Florida’s insurance crisis: liability premiums were averaging much higher than other states; doctors were retiring early or leaving the state; insurance companies were leaving the state in droves -- in fact, the number of insurance companies in Florida had dropped from 66 in the late 1990s to just 12 by 2002. Of the 12, only four companies were routinely issuing liability insurance policies.

The final report of the Governor’s Select Task Force on Healthcare Professional Liability Insurance said that “the recommendation that will have the greatest long-term impact on the healthcare provider liability insurance rates, and thus eliminate the crises of availability and affordability of health care in Florida, was a cap on noneconomic damages.”

Yet, Large said that the court in the Kalitan case ruled that the caps did not pass the “rational basis test,” where a challenged law must be rationally related to a legitimate government interest.

“By deciding the Legislature had no rational basis for imposing the caps, the court crowned itself fact-finder and policymaker, rejecting all of the Legislature’s work and its role under our system of government,” Large said.

He and Scott said that with the ruling the likelihood of another crisis in medical malpractice insurance would only grow.

In the case, Susan Kalitan sued North Broward over life threatening complications when her esophagus was punctured during surgery for carpal tunnel syndrome. After surgery to repair her esophagus Kalitan continued to feel pain in her upper body and suffered from mental disorders.

The Supreme Court agreed with an appeal court's ruling that the caps ranging from $500,000 to $1 million on non-economic damages violated the Equal Protection Clause of the state Constitution.