By letting a malpractice verdict stand and awarding $10.3 million to a victim’s widow, the Florida Supreme Court kept hope alive this fall for those wanting to remove caps on damages for pain and suffering.
The case resolved whether lawsuits from before the caps were put in place by the Florida Legislature in 2003 would be held to the same restrictions. The court held that since the injury happened before the caps law began, the awards should be left uncapped. The lawsuit was filed after the caps law went into effect.
The attorney for the plaintiff in the case was encouraged that the verdict struck a blow to caps on damages. “This is very positive for throwing out the caps completely,” Stephen Malrove told the South Florida Sun Sentinel.
The lawsuit was filed two years after the victim, Harvey Raphael, died when the doctor did not give him anti-clotting medication in the hospital after a heart attack in 2003. The doctor’s lawyers had hoped that since the law was in effect when the suit was filed, the pain and suffering damages would be capped.
The Florida law capping damages limits victims to $500,000 a person or $1 million total. The Florida Supreme Court is expected to hear oral arguments in February on a case that directly challenges the law.
No Florida appellate court has ever taken a case that challenges the law, but the appeals court did recently send a case to the Florida Supreme Court to review for constitutionality. That case concerns a mother who died in 2005 after the delivery of a child because of extreme blood loss due to poor medical treatment, according to the Florida Justice Association.
Groups like the Florida Justice Association have opposed the caps put in place by the Legislature saying that they are unconstitutional and violate the Florida Constitution’s provisions of equal protection under the law, a trial by jury and separation of powers.
And after eight years, the Supreme Court is now scheduled to hear oral arguments in a case that could declare caps on pain and suffering damages to be unconstitutional and overturn the law.
In the Raphael case, the jury award of $10.3 million is still in litigation because the doctor only had a $1 million insurance policy, according to the Sun Sentinel.
Malrove told the paper he would pursue the doctor’s insurer for the full amount claiming that they should have settled the claim before the case even went to trial.