Are jury trials for civil claims in personal injury and product liability cases simply disappearing? Studies have indicated that less than 5% of cases per year ever reach a jury. Certainly many factors are responsible for the decline in the number of cases that are filed and ultimately tried by a jury. In this series of posts we are examining several of those reasons. In our first installment of this series we looked at the financial and temporal obstacles to jury trials, and in this post we consider the effect our legislature has in the diminished number of jury trials.

baby.jpgCandidly, it appears that Florida’s legislature and those who have voted with certain law makers have virtually no faith at all in the jury system. In fact, many of my clients who have been hurt by either a doctor or hospital have told me that they unwittingly voted for a Governor Scott or former Governor Bush without understanding the significant rights that these men were capable of removing from the injured and delivering into the hands of the insurance and health-care industry.

Let’s consider the loss of the right to a trial by jury for those who have arguably suffered the most in our society from the carelessness of a doctor or healthcare provider–the newborns who are victims of traumatic birth traumas, along with their families. Let’s focus on how Florida laws and judicial opinions have reduced victims’ rights–specifically Florida Statute 766.31(1)(b)1, (2010), and the Florida Supreme Court’s opinion in the case of Angela Samples.

In 2007, Mrs. Samples gave birth to Mackenzie, who suffered a catastrophic neurological injury as a result of a trauma during delivery. Mrs. Samples and her husband Kenneth filed a claim with the Division of Administrative Hearings (DOAH) for compensation under the Florida’s Birth-Related Neurological Injury Compensation Plan (“Plan”). The Florida Birth Related Neurological Injury Compensation Association (NICA) administers a legislative program designed to provide specific and limited financial compensation without requiring proof of fault to both an injured baby and the parents who have a potential claim for birth trauma medical malpractice in Florida. It also gives participating doctors and hospitals complete protection from being sued, facing a jury trial, or being fully accountable for the harm they cause the child and the family.

To qualify for NICA, the infant must have suffered a permanent and substantial brain or spinal cord trauma leaving the child physically or mentally impaired. The injury must be caused by oxygen deprivation to a newborn being delivered alive and weighing at least 2,500 grams for a single birth or at least 2,000 grams for multiple gestations. The trauma can occur during labor, delivery, resuscitation, or in the immediate post-delivery period in a hospital.

If NICA decides that a particular claim meets its criteria, it often will award the parents a maximum lump sum of $100,000, regardless of whether there are one or two parents involved in the claim. Proponents of this scheme believe that $100,000 is a significant amount of money for the parent or parents. Having personally represented the parents of brain-injured children, I can tell you that it is not nearly enough to compensate them for the degree of emotional and financial impact they experience for their lifetime and that of their child.

First, parents often have to become literally full time healthcare providers for their children. This often requires at least one of the parents to abandon their job, schooling, or career to devote their energy to raising the child. In addition, it puts enormous stress emotionally on the parent to watch a child suffer and be deprived of the joy and life experiences that so many of us take for granted. I have sat with parents as they were told their child might never walk or stand or speak. As a parent and as a lawyer, I have never experienced a greater pain than to hear those types of prognosis. The parents that I know and whom I represent who raise children with brain injuries and birth defects have indescribable strength and optimism and love.

NICA approved a $100,000 lump sum for McKenzie’s parents, but the parents did not accept it, claiming that each parent should be entitled to $100,000, and they reserved their right to seek a hearing to present their claims to an Administrative Law Judge (ALJ), who would decide if they qualify for NICA benefits.

McKenzie’s parents bravely challenged the constitutionality of the statute and argued that the limitation of a single award of $100,000 to both parents violated the Equal Protection Clause of both the United States and Florida Constitutions. First, they appealed the award to Florida’s 5th District Court of Appeal, which found the provision constitutional, and then they appealed to the Florida Supreme Court.

Not surprisingly the Florida Supreme Court agreed with the 5th DCA, also finding the plan and allocation to be constitutional. The analysis was quite simple. The court first considered the language of the statute, which I agree on its surface clearly applies to a single lump sum for the parents, not each individual parent.

But the court’s opinion went further when it stated that the plan did not violate the Constitution’s Equal Protection Clause because there was a “rational relationship” to a “legitimate state interest,” in this case keeping NICA financially viable, thereby finding that the right to compensation under NICA was not a fundamental right. The 5th went on to say that “the less money NICA is required to pay, the easier it will be for the Plan to remain actuarially sound.”

Sadly, the Florida Supreme Court agreed and wrote in its opinion that paying out $100,000 to each parent would somehow disrupt the fiscal viability of the plan itself. What the court seems to have ignored or failed to consider is the fundamental right to a jury trial in the first place. I agree that perhaps McKenzie’s mother and father do not have a fundamental right to require NICA to allocate each of them $100,000, but don’t they have a fundamental right to have a jury decide the appropriate amount of the damages, instead of the Florida legislature, an administrative judge, and our Supreme Court?

This case is another powerful example of how our courts and legislature have conspired and colluded to deprive the right to a jury trial from those members of our society who would most benefit from the protections purportedly afforded by our civil justice system. In our next installment we will look at legislative caps on damages, particularly in medical malpractice cases, as further examples of the increasing distrust by our government in the jury system.

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