Bondi defends medical malpractice limits
By JIM SAUNDERS
THE NEWS SERVICE OF FLORIDA
THE CAPITAL, TALLAHASSEE, December 15, 2015.......... Pointing to the Legislature's efforts to address a "crisis," Attorney General Pam Bondi's office is urging the Florida Supreme Court to uphold a key part of a controversial 2003 medical-malpractice law.
A friend-of-the-court brief filed by Bondi's office signals the potential high stakes of a pending Supreme Court case that could further eliminate limits on damages in medical-malpractice cases.
Then-Gov. Jeb Bush, insurers, doctors and hospitals battled to pass the limits on pain-and-suffering damages in 2003, arguing that the state was in a crisis because of high medical-malpractice insurance rates. But this summer, the 4th District Court of Appeal ruled that the limits were unconstitutional in malpractice personal-injury cases --- after the Supreme Court earlier ruled against the limits in wrongful-death cases.
Bondi's office filed a 23-page brief late Monday seeking to rebut the appeals court's ruling, which came in the case of dental assistant Susan Kalitan, who went into surgery for carpal-tunnel syndrome and ended up suffering a perforated esophagus after tubes were inserted into her mouth and esophagus as part of the anesthesia process.
"Kalitan failed to rebut any of the exhaustive research, testimony, or data supporting the conclusion that a noneconomic damages cap is a critical, necessary method of addressing a medical malpractice crisis that was undermining the Legislature's goal of making high-quality health care accessible,'' the attorney general's brief said. "Nor can she show that there was an alternative available to the Legislature for addressing the crisis."
The 2003 medical-malpractice issue touched off one of the fiercest legislative debates in recent years and took months to resolve. Plaintiffs' attorneys lobbied heavily against limiting pain-and-suffering damages --- known as noneconomic damages --- and argued that the caps would violate the rights of injured patients.
Under the law, damages were capped at different amounts, depending on factors such as the numbers of claimants in lawsuits and the types of defendants. For example, part of the law included $500,000 and $1 million damage caps for physicians, with lower amounts when the cases involve emergency care.
The Kalitan case was filed in 2008 in Broward County and named a series of defendants, including the North Broward Hospital District, an anesthesiologist, a certified registered nurse anesthetist and a company that contracted to provide anesthesiologists and staff to the hospital district.
A jury awarded Kalitan about $4.7 million, with $4 million of that in non-economic damages, according to court records. But a circuit judge, applying the caps from the 2003 law, reduced the non-economic damages award by about $2 million, which included amounts to be paid by various parties and a finding that Kalitan suffered a "catastrophic injury." Such a finding can lead to larger damage amounts than in other malpractice cases.
The 4th District Court of Appeal, however, cited a 2014 Supreme Court decision that found the caps unconstitutional in a wrongful-death case. The appeals court said the "caps are unconstitutional not only in wrongful death actions, but also in personal injury suits as they violate equal protection. … Whereas the caps on non-economic damages in (the section of state law) fully compensate those individuals with non-economic damages in an amount that falls below the caps, injured parties with non-economic damages in excess of the caps are not fully compensated."
The North Broward Hospital District and the other defendants asked the Supreme Court on Dec. 3 to take up the issue. Along with the brief filed by Bondi's office, the Florida Hospital Association and the Florida Justice Reform Institute --- a business-backed group that supports efforts to limit legal damages --- filed a friend-of-the-court brief Monday asking for the appeals-court ruling to be overturned.
Kalitan's attorneys had not yet filed a brief in the Supreme Court as of Tuesday afternoon. But in a brief filed in the appeals court, they argued, in part, that the Legislature had not proven that imposing damage limits was the only way to address the malpractice-insurance issue.
"The Legislature has broad powers and an array of options to keep medical malpractice premiums affordable and, thereby, make Florida more financially attractive to physicians,'' the appeals-court brief said. "If the Legislature's objective was to lower medical malpractice premiums, less restrictive means, such as regulating those premiums, which do not adversely affect anyone's constitutional rights, are readily available."
