Caps On Noneconomic Damages (ie. pain & suffering) Are Unconstitutional

Read The Transcript of the video:

Marcus Michles: Good morning. I’m Marcus Michles, and I’m joined today with John Rogers. This is Michles and Booth video blog, and we’ve got something to celebrate. It’s good news, at least if you’re a fan of the jury verdict system and the jury system in general. Wouldn’t you agree, John?

John Rogers: Absolutely, it’s a great day for Florida lawyers and Florida residents, especially people that might be trying to use the system for the medical practice claim process.

Marcus Michles: Yeah, what we’re talking about is the Florida Supreme Court ruled on, I think it was June the 8th, just this month, that the medical malpractice caps on noneconomic damages are unconstitutional, that they violate the equal protection clause of the state constitution, and so a long battle that I can tell you I was on the front lines of, and the losing side of that fight, over 10 years ago. The Florida Supreme Court has decided that there is no cap, no justifiable cap, for damages in a medical malpractice case. What do you think about that, John?

John Rogers: I think it’s good news. I think that if you asked many practitioners over the past three or four years, since McCall has come down, we’ve been waiting for the next foot to drop. A decision about three years ago, plaintiff’s name was McCall, was decided, that kind of got halfway there. Caps were struck down for wrongful death cases only, so there’s been some uncertainty in the law. I think the Supreme Court finished what they started with McCall earlier this month, and it’d be hard to say it wasn’t something that we could see coming.

Marcus Michles: Yeah, and if you think about caps philosophically, I’m a trial lawyer, John’s a trial lawyer, we have strong opinions about this, but by and large, we trust the jury’s decision. If a jury decides that the fair measure of damages is, for example, a million or two million dollars, then so be it.

For example, in a comparison case, if you get hit by a drunk driver, and the measure of the damages that you sustained, in the jury’s opinion, is $2 million, the drunk driver, or more appropriately, their insurance company, is responsible for $2 million. In the medical malpractice world, which is an entirely different world in a lot of ways, that same measure of damages, for example a jury awards $2 million, is reduced to $500,000 or $750,000. Without getting into the statute too deeply, it’s reduced.

Arbitrarily, by the finding of the Supreme Court, arbitrarily in my opinion, arbitrarily in most trial lawyers’ opinions, the jury verdict should stand as the correct measure of damages.

John Rogers: Absolutely. I think one thing that’s a little confusing about the holding and something that I struggle to explain to new clients is the concept of non-economic damages itself, because all damages are economic in nature. What the court means when they say noneconomic damages are things that are intangible, things that are meant to compensate you for your pain and suffering.

Marcus Michles: That’s where it boils down. To the lay person, it’s the pain and suffering line on the verdict form.

John Rogers: Absolutely, yes.

Marcus Michles: Yeah, so the caps don’t cap economic damages, wage loss, medical bills, past and future, but they cap the intangible damages, such as pain and suffering. That’s something that’s intimately measured, very difficult to predict, very difficult to calculate. That’s where the jury comes in.

Let me take us all the way back to 2003, when this cap business first started and when the Florida Medical Association got it passed. They got it passed by arguing that there was a med mal crisis in Florida.

I’m going to tell you what. I was standing in the Senate, on the floor, making an argument then. It’s still true today. There was never a medical malpractice crisis in Florida. There never was. It was a fiction then. It’s a fiction now, and it took the Supreme Court about 10 years to sort it out and say, “You know what? That’s just not true.”

The argument was, doctors were fleeing the state in droves. They were going to some state where they weren’t responsible for their malpractice. I called it jokingly, the state of utopia. There was no state in America that existed where you could go to and not be sued or be held accountable for your mistakes. But the argument was, this crisis was driving them out of the state, and that premiums were going up, and premiums were making it impossible for doctors to get insurance. None of that was true. Empirically, it was defeated 10 years ago. It wasn’t true in 2003, or 2009, or 2011, and it’s not true today.

I’m getting a little bit high-strung about that, John, but you’re aware of this argument. You’ve seen it before. Empirically, it just couldn’t be borne out statistically. The insurers in Florida have had boon, because they sell insurance, and they don’t have to pay back the full measure of damages, like they do in many other states. Meanwhile, in the last 15 years, the number of medical malpractice insurers, who are licensed to do business in Florida, has tripled. If you ask any doctor out there whether their premiums have gone down, they’ll resoundingly say no, they haven’t.

The doctors aren’t going anywhere. They love living in Florida, like we all do. There’s more coming every day. There’s no loss of specialties or specialists coming out of school. That was one of the arguments that was made was that the neurosurgeons, and the obstetricians, and the thoracic surgeons were going to go do their high-risk business elsewhere. That turned out not to be true. It was all just a fantasy. It was all just a myth. It was a unicorn all along.

What do you think?

John Rogers: I think that’s right, and I think one of the remarkable things about this decision is that the court bases their finding on an equal protection analysis. They say there’s no rational basis whatsoever for the law. They essentially say that all of the reasons that they were argued back in 2003, they’ve not been borne out, either in reality, or with studies, or otherwise. For the court to go that far to say there’s no rational basis is a pretty rare finding.

Marcus Michles: Yeah, it was strong language, and I thought it was interesting that the court said even if there was a medical malpractice crisis, the law was still violative of the equal protection clause between victims. For example, they give the example of someone that has pain for a month, someone who has pain for a year, and someone who has pain for the rest of their life. The jury awards $100,000 in example one, $100,000 in example two, and $1 million in example three for the lifetime. But example three gets reduced to $500,000, which they determined, the Supreme Court determined, to be an arbitrary reduction of the most severely injured and the most severely impacted plaintiff.

I used to say this. These caps only hurt the most devastated citizens in Florida. They only apply after a trial, after a jury’s awarded damages, after a court has determined that it’s substantial or catastrophic in nature. Only that very, very small percentage of people, those are the ones we’re going to deny their jury award? That’s the most unfair application of caps that you can imagine.

John Rogers: Absolutely agree, and I think the Supreme Court agrees, as well, at least four to three they agree.

Marcus Michles: Yeah, it’s a close call, wasn’t it? Wasn’t a given.

John Rogers: Right.

Marcus Michles: For John, and I, and our firm, it’s a great day. The Supreme Court, in our opinion, got it right. Probably wouldn’t be in agreement if I was a medical doctor hearing the news from the Florida Medical Association.

But if you have questions about it, give us a call. Look on our web page, find some written materials that we’re going to have out there about how the caps worked, and how they no longer work, and what’s new in Florida in medical malpractice.

I’m Marcus Michles. Tune in again next week to our video blog. Thanks for joining me, John.

John Rogers: Thanks, Marcus.