Constitutional or Not? Florida's Law which Places Caps on Non-Economic Damages in Medical Malpractice Cases
About two dozen states, including Florida, have enacted tort reform laws for the purpose of limiting non-economic damages awards by juries in medical malpractice lawsuits. Non-economic damages generally pertain to monetary compensation for pain and suffering. Proponents of tort reform laws argue that these laws are necessary to retain qualified doctors by protecting them from the financial onslaught of high medical malpractice insurance premiums and exorbitant jury judgments against them. Of course a “problem” with this logic is that theoretically, truly qualified, knowledgeable, and careful doctors and other medical providers should never face the prospect of exorbitant jury judgments against them. So just exactly who is being protected by tort reform laws? Maybe it’s the bad apples within the medical profession who are also contributing to the high insurance premiums, not just “outlandish” jury verdicts influenced by trial lawyers as insurance lobbyists would have us all believe. In other words, physician don’t just heal thyself, but monitor thyself and thy colleagues.
Perhaps not surprisingly, caps on non-economic damages are facing opposition in state courts. In March, a unanimous Supreme Court of Georgia struck down limits on jury awards in medical malpractice cases by finding that they violated the right to a jury trial as guaranteed under the Georgia Constitution. In February, the Illinois Supreme Court also declared its state’s caps on non-economic damages as unconstitutional. Florida courts have not yet declared the Florida’s cap on non-economic damages as unconstitutional. This issue will most likely be eventually decided by the Florida Supreme Court. In the meantime, Florida courts have instead been asked to determine whether the retroactive application of the “caps" statute was constitutionally permissible.
In Weingrad v. Miles and Haynes, 29 So. 3d 406 (Fla. 3d 2010), Florida’s Third District Court of Appeals recently held that, under the facts of the case, the retroactive application of the statute did not violate the plaintiff’s constitutional rights. Whether or not one agrees that the caps in and of themselves are unconstitutional, the Weingrad court’s opinion serves a primer on the tests that Florida courts will consider in determining whether any statute can be applied retroactively. The Weingrad Court relied on three previous Florida Supreme Court cases which had articulated the following standards for evaluating when a statute can be applied retroactively:
1. Is the statute procedural or substantive?
2. Was there an unambiguous legislative intent for retroactive application?
3. Would the retroactive application impair a vested right?
The Weingrad Court began its analysis by stating that the “general rule is that procedural or remedial statutes may operate retrospectively but substantive statutes may not unless the Legislature has indicated a clear intent to the contrary.” It found that the “statutory cap on noneconomic damages affects an individual’s right to a certain amount of damages” and was therefore substantive in nature.”
The Weingrad Court next reviewed the statute’s language and legislative history to determine if the Legislature had evidenced an unambiguous intent for the “caps” statute to apply retroactively. The Court noted that the statute’s enabling clause, included as a footnote to section 766.118, indicated an unambiguous intent that the statute was to apply retroactively by stating that the statute “shall apply to any medical incident for which a notice of intent to initiate litigation is mailed on or after medical incident for which a notice of intent to initiate litigation” was mailed on or after September 15, 2003.”
Having found that the statute met the first two standards for passing the “retroactive” test, the Weingrad Court then focused on whether the application of the “caps” statute would impair a vested right. Under Florida law, no statute can be applied retroactively if “it impairs vested rights, creates new obligations, or imposes new penalties.” Weingrad Court citing State Farm Mut. Auto. Ins. v. Laforet, 658 So. 2d 55, 61 (Fla. 1995). This analysis required a determination as to whether or not the appellee-plaintiff’s right at issue, namely a right to sue, was a vested right.
The Weingrad Court relied on both Florida law and federal court decisions to find that the plaintiff-appellee had only a mere expectation that she had a cause of action she could pursue because “a substantive vested right is an immediate right of present enjoyment or a present fixed right of future enjoyment.” Weingrad citing Clausell v. Hobart Corp., 515 So. 2d 1275 (Fla. 1987) quoting In re Will of Martell, 457 So. 2d 1064, 1067 (Fla. 2d DCA 1982). “To be vested, a right must be more than a mere expectation based on an anticipation of the continuance of an existing law.” Weingrad citing DaimlerChrysler Corp. v. Hurst, 949 So. 2d 279, at 285-86 (Fla. 3d DCA 2007).
Interestingly, the Weingrad Court’s opinion also includes a long discussion concerning recent decisions by the Fourth District Court of Appeals which held that the retroactive application of Florida’s “caps” statute did impair a vested right. See, e.g., Raphael v. Shecter and Emergency Physicians Enterprises, 18 So. 3d 1154 (Fla. 4th DCA 2009). In reading the Weingrad and Raphael opinions, one is struck by how the two courts came to completely different conclusions simply by relying on different definitions of “vested right.” It should also be noted that the Weingrad plaintiff had sued for medical malpractice related to complications from what turned out to be an unnecessary second surgery to remove residual melanoma from her leg. The Raphael case involved a situation where a heart attack victim did not timely receive clot-busting drugs by the attending physician after being admitted to an emergency room with chest pains. He eventually died 2 years later from heart disease after commencement of a medical malpractice lawsuit against the physician and hospital.
The Raphael Court noted that the right to sue is an inchoate cause of action, or a cause of action which has not yet accrued, and is therefore not a vested right. According to the Raphael Court, an inchoate cause of action evolves into an accrued right to sue or a vested right when an act or event has already occurred affecting the claimant. Accordingly, the appellant’s right vested or accrued at the same time as the cause of action. “The cause of action in a medical malpractice case accrues at the time the malpractice occurs.” Raphael citing Florida Statute 95.11(4)(b) (2002); Patient’s Compensation Fund v. Scherer, 558 So. 2d 411, 414 (Fla. 1990). The Raphael Court found that the retroactive application of the “caps” statute was unconstitutional because it would impair the plaintiff’s vested rights which had accrued prior to September 15, 2003. Although the Raphael Court did not expressly say so, it interpreted the vested right to sue to include the right to seek “uncapped” monetary damages.
Although the Raphael Court had also been asked to consider the constitutionality of the statute itself, it declined to do so by stating in a footnote that “[C]ourts should not pass on the constitutionality of statutes if the case in which the question arises may be effectively disposed of on other grounds.” B.C. v. Fla. Dep’t of Children & Families, 887 So. 2d 1046 (Fla. 2004) (quoting Singletary v. State, 322 So. 2d 551, 552 (Fla. 1975)). Here, the Court had focused on the constitutionality of the statute strictly from a "retroactive application" perspective.
So what are we to make of the conflicting decisions concerning the constitutionality of retroactively applying the “caps” statutes to medical malpractice cases which accrued prior to September 15, 2003? And what do these decisions mean with regard to whether the “caps” statute is itself constitutional? The Weingrad Court, by finding that due process rights were not affected by the retroactive application, did not actually state that the statute itself was unconstitutional. Indeed the beginning of the opinion states that “[w]e do not take lightly a contention that a statute passed by the Legislature is unconstitutional and we start with the well-established principle that a legislative enactment is presumed to be constitutional.” Weingrad quoting Lawnwood Medical Center, Inc. v. Seefer, 990 So. 2d 503, 508 (Fla. 2008). The only issue before the Weingrad Court pertained to whether the retroactive application of the “capped noneconomic” damages statue was constitutionally permissible, not whether the statute itself was constitutionally permissible.
The Raphael Court, on the other hand, had been also asked to determine the actual constitutionality of the statute. By finding that the retroactive application of the statute was unconstitutional, the Raphael Court could “pass” on determining the issue of the constitutionality of the statute itself.
The Florida Supreme Court will undoubtedly be addressing this issue soon enough. Indeed, the conflict between Florida's Fourth and Third DCA's on the retroactivity application of the "caps" statute has already been certified to the Florida Supreme Court. As stated in the Weingrad opinion, courts certainly are not keen on declaring laws unconstitutional. Recent decisions by other state supreme courts do suggest, however, that the Florida Supreme Court could determine that existence of caps is violative of the right to trial by jury provided for by the Florida Constitution. Alternatively, the Florida Supreme Court could find that the retroactive application of the "caps" statute is unconstitutional and stop short of finding that the statute itself is unconstitutional. In March, the Supreme Court of Missouri followed such a course of action and held that the retroactive application of Missouri's caps statute was unconstitutional without addressing the consitutionality of Missouri's statute itself.
In the meantime, lobbyists and insurers who are proponents of tort reform will continue to place blame on trial lawyers for rising medical costs and medical malpractice insurance. The bottom line is that negligent conduct within the medical community is an all too often occurrence. And medical negligence, in and of itself quite apart from medical malpractice lawsuits, drives up healthcare costs if the injured party then requires additional healthcare services to deal with the problem caused by the medical negligence! Who’s paying for these medical costs resulting from medical negligence? Health insurance companies, Medicare, and Medicaid, or the medical providers/hospitals themselves if the injured is uninsured. It is still our optimistic position that progressive medical providers will also understand that the implementation of standards and procedures for minimizing negligence in patient care will help reduce medical costs overall, including exposure to medical malpractice insurance rates. Indeed, we have addressed healthcare quality control concepts in a previous blog.
Thankfully, most patients will not suffer lasting harm from the negligent acts or omissions of a medical provider. But for those who do, legal action is the only manner in which patients, or their family members in the case of a wrongful death action stemming from underlying medical malpractice, can seek recourse for their injuries or the death of a loved one due to the medical negligence.
DISCLAIMER: THE FOREGOING IS NOT LEGAL ADVICE NOR SHOULD YOU CONSIDER IT AS SUCH. YOU SHOULD ALWAYS CONSULT WITH AN ATTORNEY OF YOUR CHOOSING WHEN CONSIDERING AN ACTION WHICH HAS LEGAL CONSEQUENCES.
