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Non-Economic Damage Caps Unfairly Punish the Injured
In Florida, caps on non-economic damages in medical negligence cases place significant restrictions on the rights of injured people to receive full and fair compensation for their injuries.

Those who are injured by a health care provider's negligence may be surprised to learn that they may never be able to recover the full extent of their losses from the responsible party - even when the court finds in the injured person's favor.

In 2003, a law placing caps on non-economic damages in medical malpractice cases went into effect in Florida, severely limiting the potential recovery victims of medical negligence can receive for their non-pecuniary losses. These caps are a restriction on the rights of the injured to receive full and fair compensation for the entire spectrum of their injuries.

What are non-economic damages?

There are two types of compensatory damages in personal injury cases: economic and non-economic damages. Economic damages are quantifiable monetary losses, like lost wages, loss of future income and medical expenses. There are no state caps on the amount of economic damages that may be awarded in a medical malpractice case.

Non-economic damages, on the other hand, are non-monetary losses that can be more difficult to quantify, but no less important. They include pain and suffering, mental anguish, disfigurement, physical impairment, inconvenience, loss of companionship, loss of enjoyment of life and loss of consortium. These are the type of damages that are subjected to a cap under Florida §766.118.

What are the medical malpractice caps in Florida?

The current caps on non-economic damages are:

  • $500,000 against practioners
  • $750,000 against non-practioners

"Practioners" include MDs, DOs, chiropractors, podiatrists, naturopathists, optometrists, dentists, midwives, physical therapists and nurse practioners as well as their employers (i.e. hospitals, private practice groups). The cap is increased to $1 million (for practioners) and $1.5 million (for non-practioners) in cases of death or if the patient is left in a permanent vegetative state as a result of malpractice.

Additionally, the court may impose the higher cap if it finds a "manifest injustice" would result otherwise based on the severity of the injured person's non-economic harm and the presence of a catastrophic injury. Florida law defines "catastrophic injury" as:

  • Spinal cord injuries resulting in paralysis of the arm, leg or body
  • Amputation of a hand, arm, foot or leg
  • Severe brain and closed-head injuries
  • Second- or third-degree burns covering at least 25% of the body or third-degree burns covering at least 5% of the patient's hands or face
  • Blindness
  • Loss of reproductive organs, resulting in inability to procreate

The law also caps the amount of non-economic damages that may be awarded when the malpractice occurred during the provision of emergency medical care:

  • $150,000 per claimant, but no more than a total of $300,000 for all claimants against practioners providing emergency services
  • $750,000 per claimant, but no more than a total of $1.5 million for all claimants against non-practioners providing emergency services

Emergency services are defined as those that occur in the time period before the patient is stabilized and capable of receiving non-emergency care.

There also are caps on the amount of non-economic damages that may be awarded in binding arbitration. Florida law currently limits this amount to $250,000 per claimant. There is no cap on the total amount that may be awarded to all claimants. However, the amount of non-economic damages each claimant will be awarded is determined by how much the injury impaired their capacity to enjoy life. For example, if the arbitrator finds that the claimant's capacity to enjoy life only has been reduced 60% by the injury, then the most the claimant may collect for non-economic damages is $100,000.

Why impose the caps?

There has been a push in recent years not only for states to pass caps on non-economic damages, but also for the federal government to pass a national cap on these damages. Several reasons have been offered to justify the caps, but the most common reason has been to lower medical malpractice insurance premiums for health care providers.

Insurance companies claim that the large pay-outs in medical malpractice cases for pain and suffering and other non-economic damages have required them to sharply increase the cost of medical malpractice insurance. Other insurance providers have stopped offering the coverage altogether because they argue it has become too costly to do so. In turn, physicians have left states with high insurance premiums and/or limited insurance providers.

Why are these caps bad?

There is no reliable data supporting the connection between non-economic damage caps and decreases in medical malpractice insurance premiums. The American Bar Association (ABA) has spoke out against a national cap, basing its position on the lack of empirical data showing caps have resulted in lower insurance premiums for physicians and other health care providers. Rather, states that have implemented insurance reform have had greater success lowering the overall costs of medical malpractice insurance than those that have only implemented damage caps.

Non-economic damage caps also serve to protect the person responsible for committing the wrong. The whole point of the tort system is to hold the parties financially responsible for all of the losses they have caused to another. By placing caps on the value of an injured person's claim, the state is removing personal responsibility from liable health care providers and, more importantly, failing to protect members of the public from the possibility of receiving the same negligent care.

The real problem with non-economic damage caps is that they hurt the people the law is supposed to protect: the injured. Damage caps disproportionately impact those who have suffered the worst injuries. They are the ones who will have endured losses that far exceed their medical bills and lost wages.

Non-economic damages help ensure those who have been hurt the most are fairly compensated for all of the non-financial losses they may have suffered. This is particularly true when the person hurt is a child, a student or a retired senior whose economic losses may be minimal, but because of the severity of the injury, their non-monetary losses may be great. Does this mean these people's injuries are worth any less than others? According to the non-economic damages cap, it does.

Conclusion

Several states that had passed caps on non-economic damages have since repealed them. To date, the highest state courts in Ohio, Alabama, Illinois, New Mexico, New Hampshire, Wisconsin and Kansas have declared caps on noneconomic damages unconstitutional. The courts provided a number of reasons for their decisions, including that the caps violated state and federal equal protection and due process clauses as well as limited citizen access to the courts and right to jury trial.

It is time for Florida to follow the example set by these states and repeal its cap on noneconomic damages. Until it does so, the state will continue to deny injured people the right to full and fair compensation for all of their injuries, and not just the ones the legislature deems the most important.

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