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Posts Tagged "unconstitutional"

Florida Supreme Court Declares Medical Malpractice Wrongful Death Caps Unconstitutional

Posted by on Mar 27, 2014 in Medical Malpractice

Florida Supreme Court Declares Medical Malpractice Wrongful Death Caps Unconstitutional

In 2005, the Florida Legislature capitulated to the demands (and political donations) of the medical malpractice insurance industry and passed a law capping non-economic damages for surviving family members of anyone killed in Florida as a result of medical malpractice. In 2006, Michelle McCall was a young mother who tragically died as the result of the malpractice of several Air Force physicians during childbirth in the Florida panhandle.  Ms. McCall left behind a son, and her two parents.  The trial court that heard that case found the evidence in the case warranted an award of $500,000.00 to Ms. McCall’s surviving son for his pain and suffering, and $750,000.00 to each of her parents for theirs. However, because of Florida’s cap on damages passed the year before, the trial court was obligated to reduce the award to an aggregate of $1 million to be divided between the child and parents.  Had Ms. McCall had additional children, each of their claims would require a further division of the $1 million aggregate cap. Ms. McCall’s case (McCall v. United States) finally made it to the Florida Supreme Court last year.  Just last week, the Florida Supreme Court decided that the caps on damages in medical malpractice wrongful death cases were unconstitutional.  The Court reasoned that the caps were violative of the Equal Protection Clause of the Florida Constitution. The Court determined that the caps imposed an unfair and illogical burden on large families because each family member of a large family would automatically receive less compensation than members of small families — everything else being equal — because of the caps, regardless of the evidence of loss. Additionally, the Florida Supreme Court found that there really was no “crisis” or any other real or rational relationship between caps on non-economic damages and the health of the Florida medical industry.  Therefore, there was really no good policy reason to have caps on non-economic damages in wrongful death medical malpractice cases.  This is a good decision for anyone who has lost a family member in a medical negligence case. If you have any questions regarding caps on damages, or a Florida medical malpractice case, call Winter Park medical malpractice attorneys Kim Cullen and Robert Hemphill at...

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Circuit Court Finds New Florida PIP Law Unconstitutional

Posted by on Mar 26, 2013 in Motor vehicle accidents

Finding that the new Personal Injury Protection (PIP) law passed by the Florida Legislature last summer exceeds “the outer limits of constitutional tolerance”, a Leon County Circuit Court judge issued a temporary injunction against enforcement of sections of the law that apply to “emergency medical conditions” as prerequisites for payments and payment of services to chiropractors, massage therapists, and acupuncturists. Click here for a copy of the Court’s Order. As referenced by Circuit Court Judge Terry Lewis, PIP has always been justified as a “reasonable alternative” to every citizen’s common law right to redress against the driver responsible for causing the citizen’s damages. The argument was that since PIP guaranteed certain payments for medical bills and lost wages — regardless of fault – this was a fair trade for not being able to seek damages, or the full measure of one’s damages, against a negligent driver. As I discuss much more fully in my book, The Clever Client’s Guide To: Avoiding Disaster Under the 2013 PIP Law, the Florida Legislature passed a major revision of PIP, significantly reducing benefits based upon the particular diagnosis made by a doctor following a car accident, as well as completely eliminating medical payments to certain kinds of medical providers (chiropractors, massage therapists, etc.) Apparently, Judge Lewis felt that these changes were too significant for the current PIP framework to represent a “reasonable alternative”. Governor Rick Scott and the State Insurance Commissioner’s office have vowed to appeal Judge Lewis’ decision. In the meantime, it appears that the political will to keep PIP in Florida may be waning, and a system of mandatory bodily injury liability coverage in Florida may be on its way. Florida is one of only 13 or so states that still have a PIP system. It will definitely be interesting to see how this story develops. If you have any questions about a Florida car accident, Florida automobile insurance, or PIP benefits, call Winter Park personal injury attorneys Kim Cullen and Robert Hemphill at...

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