Another legal hit for medical malpractice caps in Florida


The case started with a dental assistant who went into surgery for carpal-tunnel syndrome and ended up suffering a perforated esophagus.

Now, nearly eight years later, the case could be another blow to a controversial 2003 law that limited the amounts of money injured patients can receive in medical-malpractice cases.

A South Florida appeals court ruled last week that the law’s limits on pain-and-suffering damages — known in legal parlance as non-economic damages — are unconstitutional in personal-injury cases, such as the case of Susan Kalitan, who was injured after tubes were inserted into her mouth and esophagus as part of an anesthesia process.

The 4th District Court of Appeal’s decision followed a Florida Supreme Court opinion last year that similarly rejected the malpractice law’s limits on non-economic damages in wrongful-death cases. The appeals court cited the Supreme Court’s opinion and said the damage limits violate equal-protection rights under the state Constitution.

The 14-page decision, issued by a three-judge panel of 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 ruling, written by appeals-court Judge Alan Forst and joined by Chief Judge Cory Ciklin and Judge W. Matthew Stevenson, said the appeal presented an issue of “first impression,” which means it is the first time the constitutional question has been decided. Defendants in the case can ask for a rehearing or appeal.

Then-Gov. Jeb Bush signed the medical-malpractice law in 2003 after a fierce, months-long political battle about limiting non-economic damages. Physicians, hospitals and their legislative supporters argued that the caps were needed because of soaring malpractice-insurance costs. But opponents, including plaintiffs’ attorneys, contended that limiting damages was unfair to 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.

Kalitan filed the malpractice case 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 brief filed in the appeals court by Kalitan’s attorneys said anesthesia was used to put her “to sleep” for the outpatient carpal-tunnel surgery. When she awoke, she complained of chest and back pain but was later sent home. The brief said she was rushed to the hospital the next day, with an infection from the perforated esophagus and had to undergo chest and neck surgery. She was place in a drug-induced coma for three weeks while recovering.

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.

In court briefs, attorneys for the defendants vehemently argued that the case did not meet the legal definition of a catastrophic injury.

But the appeals-court ruling focused on the broader constitutionality of the damage limits, saying that so “long as the caps discriminate between classes of medical malpractice victims, as they do in the personal injury context (where the claimants with little non-economic damage can be awarded all of their damages, in contrast to those claimants whose non-economic damages are deemed to exceed the level to which the caps apply), they are rendered unconstitutional by (last year’s Supreme Court opinion), notwithstanding the Legislature’s intentions.”

The court ordered reinstatement of the jury’s original damage award, though it noted that the final amount could be reduced because the North Broward Hospital District has “sovereign immunity.” That legal concept limits damages in lawsuits against government agencies.


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