Leesburg Florida medical malpractice lawyer discusses the recent Supreme Court decision in McCall that overturns the cap on non-economic damages and says there is “no medical malpractice in crisis.”
A few months ago I wrote about the McCall case, which started in the federal court but made its way to the Florida Supreme Court to look at the constitutionality of Section 766.118, Florida Statutes that limits the amount of non-economic damages for multiple claimants. In a death case like McCall, the total non-economic damage cap would be $1,000,000 no matter how many survivors there are under Florida's Wrongful Death Act. In McCall, the federal judge that decided the underlying case awarded more than $1,000,000 to the statutory survivors.
The opinion is about 96 pages. Just click the link the heading if you would like to read it. What is most striking about the opinion is the way the Supreme Court calls out the talking points of the medical malpractice insurance lobby – specifically, its claim that there is some medical malpractice crisis.
Here is how the Court eviscerated these arguments. First, the Court called out the legislature:
The Florida Legislature attempted to justify the cap on non-economic damages by claiming that “Florida is in the midst of a medical malpractice insurance crisis of unprecedented magnitude.” Ch. 2003-416, § 1, Laws of Fla., at 4035. The Legislature asserted that the increase in medical malpractice liability insurance premiums has resulted in physicians leaving Florida, retiring early from the practice of medicine, or refusing to perform high-risk procedures, thereby limiting the availability of health care.
Then it took each of these three areas (1) physicians leaving the state because of medical malpractice premiums; (2) runaway jury verdicts; and (3) healthcare crisis!
Physicians Leaving Florida
The truth is that the population of doctors has been growing:
For example, in a 2003 report, the United States General Accounting Office found that from 1991 to 2001, Florida's physician supply per 100,000 people grew from 214 to 237 in metropolitan areas and from 98 to 117 in non-metropolitan areas, or percentage increases of 10.7 and 19, respectively. Thus, during this purported crisis, the numbers of physicians in Florida were actually increasing, not decreasing.
Runaway Jury Verdicts
Although assertions of a malpractice insurance crisis are often accompanied by images of runaway juries entering verdicts in exorbitant amounts of non-economic damages, see, e.g., Task Force Report at xvii, one study revealed that in Florida cases which resulted in payments of $1 million or more over a fourteen-year period, only 7.5 percent involved a jury trial verdict.
Citing a study in Vanderbilt Law Review the Court also noted:
The authors also concluded that “tort reform efforts focused on jury verdicts are misdirected, at least with respect to $1 million verdicts in Florida. Not only do jury trials constitute only a small portion of $1 million payments, [but] the settlements following verdicts tend to be substantially less than the jury awards.”
Even the Task Force whose report was relied upon by the Florida Legislature employed extremely equivocal language and speculation when Thus, available data indicates the Task Force's finding that non-economic damage awards by juries are a primary cause of the purported medical malpractice crisis in Florida is most questionable.
The Healthcare Crisis
Finally, testimony before the Senate Judiciary Committee and debate within the Florida Senate raised questions concerning the magnitude of any purported health care crisis. With regard to the former, the deputy director of the Florida Office of Insurance Regulation testified he had found no evidence to suggest that there had been a large increase in the number of frivolous lawsuits filed in Florida, nor was there any evidence of excessive jury verdicts in the prior three years… Thus, the finding by the Legislature and the Task Force that Florida was in the midst of a bona fide medical malpractice crisis, threatening the access of Floridians to health care, is dubious and questionable at the very best.
Is There Really a Correlation Between Caps on Damages and Malpractice Premiums? No.
The Court cited studies that showed medical malpractice insurance premiums actually rose in states where damages were capped at a higher rate than in states where damages are not capped.
the median medical malpractice premiums paid by physicians in three high-risk specialties—internal medicine, general surgery, and obstetrics/gynecology—rose by 48.2 percent in states that have damages caps, but in states without caps, the median annual premium increased at a slower rate—by 35.9 percent…. the study noted that among states with caps on damages, only 10.5 percent (two of nineteen states with caps) experienced static or declining medical malpractice premium rates following the imposition of caps. In contrast, among states without damages caps, 18.7 percent (six of thirty-two states
Additionally, Robert White, the President of First Professionals Insurance Company (FPIC), testified during a Senate Judiciary Committee meeting that a $500,000 cap on non-economic damages would achieve “virtually nothing” with regard to stabilizing medical malpractice insurance rates. Testimony of Robert White, Senate Judiciary Committee Meeting, July 14, 2003, at 48, 50-51. Earlier in 2003, Mr. White informed a group of Palm Beach physicians: “No responsible without caps) experienced static or declining medical malpractice premiums.
Finally, the Court set out the amount of money the medical malpractice insurance are really making. If you read the opinion, it will make you sick.
Insurance is big business and it tries to make higher profits by lobbying the legislature with fear tactics. The folks who take the brunt of this are Florida's citizens who are injured by medical malpractice. Our Supreme Court shows the true facts in this opinion. I'm sure, the legislature – pushed by our governor, who was the CEO of a hospital and in the healthcare business, will make another stab at trying to eviscerate the medical malpractice law and protect big business.
Photo attribution: University of South Florida