PBCBA BAR BULLETINS pbcba_bulletin_sept2018

PERSONAL INJURY C o r n e r ARBITRATION IN MEDICAL MALPRACTICE CASES TED BABBITT Under Fla. Stat. 766.207(7)(b) if a plaintiff accepts an offer of binding arbitration noneconomic damages are limited to $250,000.00 per incident. On the other hand if the plaintiff rejects an offer from the defendant of binding arbitration, then under Fla. Stat. 766.209(4) noneconomic damages are limited to $350,000.00. In DeFranko v. Poole, Judge Jose M. Rodriguez of the Eleventh Circuit was faced with the question of whether the cap on damages was unconstitutional as violating the Florida Constitution’s guarantee of equal protection. Judge Rodriguez held that it was. Previous appellate courts have held that the limitation on damages under review was constitutional. Alvarez v. Lifemark Hosps. of Florida, Inc., 208 So. 3d 221 (Fla. 3rd DCA 2016), Univ. of Miami v Echarte, 618 So. 2d 189 (Fla. 1993), Parham v. Florida health Scis. Ctr., Inc., 35 So. 3d 920 (Fla. 2d DCA 2010). Caps on damages in medical malpractice cases have been under successful attack in recent opinions. N. Broward Hosp. Dist. v. Kalitan , 219 So. 3d 49 (Fla. 2017) found personal injury statutory cap of Fla. Stat. 766.118 for noneconomic damages in medical malpractice cases unconstitutional. In Estate of McCall v. United States, 134 So. 3d 894 (Fla. 2014) our Supreme Court held the cap in Fla. Stat. 766.118 unconstitutional as to wrongful death claims.charte, supra, was a landmark case finding that the cap in arbitration of medical malpractice cases constitutional. It relied on a 1988 Task Force finding that there existed a medical malpractice insurance crises which prevented some physicians from affording malpractice insurance and that there was no alternative methods available to abate that crises thus creating an overwhelming public necessity. The Supreme Court found in McCall, supra, at 909, that the Legislature’s finding “of a bona fide medical malpractice crises, threatening the access of Floridians to healthcare, as dubious and questionable at the very best.” The Supreme Court further found in McCall at 910 that even if such a crisis still existed there has not been shown to be any “rational relationship to a cap on noneconomic damages and alleviation of the purported crises.” The Supreme Court further found at 913 that “accordingly, any insurance crises that might have existed has since subsided, and thus there is no rational basis to continue applying §766.118’s cap on noneconomic damages in wrongful death claims.” Judge Rodriguez concluded that because Echarte, supra, was fundamentally premised on the existence of a medical malpractice insurance crisis which both McCall, supra, and Kalitan, supra, found either never existed or had since subsided Echarte was no longer authority for the constitutionality of the subject statute. Judge Rodriguez in finding the cap on damages on noneconomic damages present in Fla. Stat. 766.207(7)(k)(2) and 766.209(4) (a) unconstitutional found Moreover, any benefit a plaintiff derived from sections 766.207 and 209 is dwarfed by that bestowed upon a defendant: the ability to “unilaterally limit the claimant’s noneconomic damages … whether the claimant accepts arbitration,… or goes to trial.” Echarte, 618 So. 2d at 200 (Shaw, J. dissenting). These statutes thus epitomize “the classic case of ‘heads I win, tails you lose.’” id.; and if the McCall and Kalitan Courts held that merely capping the recovery of the most egregiously injured was arbitrary, irrational, and fundamentally offensive to the notion of equal justice; then laws that vest a defendant with the power to limit a plaintiff’s recovery are equally, if not more, arbitrary, irrational, and offensive. Defendants, after all, are the potentially/actually negligent party and thus inherently incentivized to use this power, especially in cases involving large liability. The more devastatingly injured Plaintiff is then left with no recourse. PALMBEACHBAR.ORG 12 Judge Rodriguez concluded that the caps in question violated the Florida Constitution’s guarantee of equal protection under the law and denied the defendants’ motion to alter the jury’s verdict to bring it in line with the $350,000.00 cap. While Judge Rodriguez’s opinion is not binding precedent, his reasoning is compelling. The final decision on this matter will eventually be made by the Florida Supreme Court. Purchase Your Discounted Movie Tickets Today! Contact Eva Gray at 561.687.2800 LEADING PRACTICE MANAGEMENT SOFTWARE 10% Discount for Bar Members

PBCBA BAR BULLETINS pbcba_bulletin_sept2018 | Page 12