Florida Medical Malpractice Damage Caps Are Being Challenged

Posted by Guy DiMartino | Aug 27, 2012 | 0 Comments

Florida medical malpractice lawyer and doctor of chiropractic discusses medical malpractice damage caps.

Many states including Florida have decided to cap damages in medical malpractice cases taking the position that there is some kind of crisis in medicine because of medical malpractice, which is just not true.  Florida has a number of caps related to non-economic damages in medical malpractice cases, which ranges from $150,000 to $1,500,000 depending on the type of provider and extent of the injuries or death.

Missouri Supreme Court Strikes Down Caps

In July 2012, the Missouri Supreme Court in Watts v. Family Medical Center overturned its non-economic damage caps.  A few years ago the Missouri legislature limited non-economic (pain & suffering damages) to $350,000.  In Watts, a child was born with a brain injury and his mother filed a medical malpractice claim.  A  jury awarded $1.45 million in damages, which the trial court reduced to $350,000 per statute.  The plaintiff appealed and the case eventually made it to the Missouri Supreme Court.  In finding the statute on constitutional, the court said:

  • The non-economic damage violated the plaintiff's right to trial by jury guaranteed by the Missouri constitution.
  • The cap on damages had no regard to the facts of the case.
  • Statutory caps were not allowed with the constitution was adopted.

Florida's Damage Cap is Being Challenged

Currently, the matter of McCall v. U.S. is pending before the Florida Supreme Court.

McCall involved a mother and wife who died while receiving medical care and treatment through military service healthcare providers.  This case went forward under the Federal Tort Claims Act, in which the plaintiff gives up their right to a jury trial and the matter is tried before a Federal Court Judge.  The Judge found that the doctors committed malpractice and issued a judgment that included $2 million in non-economic damages.  The US moved to reduce the verdict to $1 million under the statutory cap.  The matter was appealed through the federal system and the Eleventh Circuit Court of Appeals requested the Florida Supreme Court answer a certified question about the Florida constitution.

Like the Missouri case, the Florida case is arguing that the cap on damages restricts access to courts.  It will be interesting to see what the Florida Supreme Court does in this matter. It can easily punt and reject the appeal stating that this matter was tried under the Federal Tort Claims Act that already limits folks access to the courts and right to a jury trial.

What do you think about Florida's medical malpractice damage caps?

About the Author

Guy DiMartino

I have loved helping people in need for almost three decades.  It has been my privilege to serve people as their pastor, chiropractor, and lawyer.  The current focus of my legal practice and life’s passion is helping the seriously injured receive complete compensation for their injuries. I am a Florida Board Certified Civil Trial Attorney. What that really means is that I am no stranger to the courtroom.  I have successfully tried and handled serious cases in state and federal courts.  My backgrounds in both law and chiropractic medicine have given me a unique perspective, extensive knowledge, and wide experience to serve those I represent. For years as a chiropractic physician, I treated my patients to alleviate their pain and suffering. Now as their lawyer, I fight to bring them financial compensation for their pain and suffering. During my years of service, I have handled many traumatic injury cases ranging from the traumatic amputation of a limb to brain and spinal cord injury.  I consider it an honor to serve you and your family. When a person entrusts me and I accept to represent them, I don’t take that relationship and responsibility lightly. My approach is that we work as a team. We are partners and our goal is the best outcome for you and your family with the highest level of communication throughout. I am always available by phone or email to discuss my potential representation of your injury case. I handle cases throughout Florida. Education: National University of Health Sciences – BS (1984), DC (1986) Valparaiso University School of Law – JD, summa cum laude (1999) Bar Admissions: Florida (2000), Indiana (1999), Illinois (2000, expired); US District Courts of Appeals (11th Circuit, 7th Circuit); United States District Courts: Southern and Middle Districts of Florida; Northern and Southern Districts of Indiana; Northern and Central Districts of Illinois; and District of Colorado. Certification:  Civil Trial, Florida Bar Guy DiMartino on Google+ – Circle Guy on Google+ Guy DiMartino on Google+


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