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I am a Florida medical malpractice lawyer who helps patients and their families when one of them has been injured or killed by careless doctors and hospitals. For most of my legal career, I have been unable to get victims full justice for their pain and suffering. Since 2003, Florida’s healthcare industry has slept soundly, knowing that regardless of what verdict a jury may return against them, they would be insulated by Florida Statute §766.118 and thereby would not be held fully accountable to pay any amount in excess of $500,000 for an injury, or $1,000,000 for the death of a patient, regardless of how many children or dependents were left behind.

Thankfully, all that has now changed. The Florida Supreme, after over a decade of challenges, has finally declared those caps unconstitutional. Their decision was based upon the case of Michelle McCall, who died after she bled to death following a caesarean section during the birth of her a son in February 2006 at a U.S. Air Force hospital in Fort Walton Beach, Florida.

A United States federal judge agreed that McCall had not received proper care and found that her parents and son should receive $2 million for their pain and suffering. But then that verdict award was reduced to $1 million to comply with Florida’s damages cap. The verdict was challenged on appeal to the 11th U.S. Circuit Court of Appeals in Atlanta as violating the U.S. Constitution. The appellate court upheld the verdict, ruling that it did not violate the federal law, but suggested that the Florida Supreme Court should consider if it violated the state’s constitution.

For more than 10 years, I have sat across the table from grieving spouses and parents with fatherless children and explained how the medical malpractice caps along with a series of other legal protections created to protect the powerful and influential healthcare industry obstruct the path to justice of those who need help the most—the injured.

A typical medical malpractice case in Florida might involve the death of a husband and father of two minor children who owned his own a car dealership and died following a gallbladder surgery. The surgeon, like most doctors in Florida, practices without medical malpractice insurance, and he and the hospital both have in place the protection of the caps. Sitting smugly at the defense table during a trial, he and his legal counsel know that no matter how much the jury may feel the damages to the family are, they won’t have to pay any more than a million. Considering the cost, stress, and risk of a trial, deducting the typical attorney’s contingency fee of 40%, then adding the prospect of a lengthy appeal, which would force many families to accept a small settlement of far less than full value for their claim–the family of the deceased knows there will not be much left for them..

The legal shield of §766.118 was finally shattered when Florida’s Supreme Court stated that the statutory cap was “unfair and illogical” for placing a burden on injured parties when an act of medical malpractice results in multiple victims. The 5-2 ruling, drafted by Justice R. Fred Lewis, suggested that Florida’s 2003 legislation created a legal crisis which “has the effect of saving a modest amount for many by imposing devastating costs on a few.”
Sadly for many injured patients and their families, this decision comes 11 years too late. Doctors and hospitals continue to enjoy far more legal protection than any other members of society. I hope the Supreme Court will soon consider how and why most of Florida’s doctors are permitted to practice without medical malpractice insurance.

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