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Florida law capping non-economic damages is overturned.

Posted on Apr 04, 2014

So called "non economic damages" - are harms caused by preventable medical mistakes that don't have a specific dollar value - like a patient's pain, disfigurment, isolation and emotional distress after a botched surgery, for example.   The value of those damages is left to the common sense and reasonableness of a fair jury.

Some states have limited or capped those damages by statute - taking away part of the role of a jury.  Here's an example of a court

In the McCall v. U.S Florida  case (March 14, 2014),  the Florida Supreme Court has ruled that this law violates the state constitution's equal protection clause. The decision on the case was a 5-2 split and the court concluded that the law that placed a cap on non economic damages in wrongful death cases, was unconstitutional. Even though the law is limited to wrongful death cases due to medical malpractice, plaintiff attorneys believe that this could be applied to other personal injury cases as well.

Florida passed a law that put a cap on non-economic expenses in medical malpractice cases in 2003. The cap limited the damages  to $1 million per incident no matter the number of plaintiffs. This cap was put in place as an answer to the so called "medical malpractice insurance crisis", which never materialized. In fact, as the court found, the data proved that there is no "medical malpractice insurance crisis", and there never was.  Additionally, many of those that had been in favor of the cap (insurance companies and their lobbyists no doubt) said that it was needed because doctors were leaving the state, but research and data showed otherwise - the number of doctors had actually increased. 

We have to be careful when legislators respond to a "crisis" - oftentimes it is manufactured by the group who will make money once the legislation is passed.  Unfortunately, locally both Maryland and Virginia have a cap on medical malpractice damages available to patients who have been the victim of a preventable medical error.

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