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Pain and suffering is no longer capped in Florida Medical Malpractice Claims

Posted by Guy DiMartino | Jul 04, 2015 | 0 Comments

For a little over 10 years, non-economic damages (pain and suffering) damages have been capped by Florida Statute 766.118 to $500,000 for a non-catastrophic injury or death case and $1,000,000 for a catastrophic injury or death claim.

In 2014, the Florida Supreme Court in McCall struck down the damage cap in a death case with multiple survivors. Now in 2015, the 4th District Court of Appeal looked at the damage cap in regards to a non-catastrophic injury case.

The Facts in Kalitan:

  • The patient went in for carpal tunnel surgery
  • During intubation for anesthesia the patient's esophagus was damaged
  • The patient had no esophageal problems before the surgery
  • The patient woke up from surgery with excruciating chest pain
  • She was eventually released from the hospital
  • The patient's neighbor drove her home from the hospital
  • The next morning the neighbor checked on the patient and found her unresponsive
  • The patient underwent life saving surgery and was in a coma for weeks
  • The patient had additional surgeries and experienced permanent physical and emotional problems

The case went to trial and the jury found in favor of the injured patient and compensated her 2 million dollars for past pain and suffering and 2 million dollars for future pain and suffering. The court reduced the non-economic jury award to the statutory caps under 766.118. Florida Statutes.

The Fourth District Court of Appeal in reversing the trial court's reduction of the non-economic damages analyzed the McCall case, which dealt with wrongful death damages. The court specifically said:

Therefore, adhering to McCall, the section 766.118 caps are unconstitutional not only in wrongful death actions, but also in personal injury suits as they violate equal protection. It makes no difference that the caps apply horizontally to multiple claimants in a wrongful death case (as in McCall) or vertically to a single claimant in a personal injury case who suffers noneconomic damages in excess of the caps (as is the case here). Whereas the caps on noneconomic damages in section 766.118 fully compensate those individuals with noneconomic damages in an amount that falls below the caps, injured parties with noneconomic damages in excess of the caps are not fully compensated.

At least for the time being there are no non-economic damage caps in Florida medical malpractice actions.

If you would like to speak to a Leesburg Florida medical malpractice lawyer, call (352) 267-9168.

Guy S. DiMartino, DC, JD, PA
918 W. Main Street

Phone: 3522679168

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 lifes passion is helping the seriously injured receive complete compensation for their injuries. I am a ...


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