Damages Cap in Florida Malpractice Cases Tossed

     WEST PALM BEACH, Fla. (CN) – Just as there is no place for a cap on emotional-distress damages in a wrongful-death case, so too is it unconstitutional to limit recovery in medical-malpractice cases, a Florida appeals court ruled.
     The Florida Supreme Court reached the wrongful-death precedent last year in the case Estate of McCall v. United States.
     Though the Florida Legislature capped noneconomic-damages awards in wrongful-death cases 12 years ago in its passage of section 766.118, McCall found this to violate the equal-protection clause of the Florida Constitution.
     Susan Kalitan sought to apply this holding to her medical-malpractice case, and the Fourth District Court of Appeal agreed last week that “caps on noneconomic damage awards in personal injury medical malpractice cases are similarly unconstitutional.”
     “To conclude otherwise would be disingenuous,” Judge Alan Forst wrote July 1 for a three-person panel.
     The North Broward Hospital District and other medical entities whom Kalitan had sued failed to distinguish the cases based on the fact that multiple survivors seek damages in a wrongful-death case, whereas medical-malpractice cases involve one injured individual.
     “It makes no difference that the caps apply horizontally to multiple claimants in a wrongful death case or vertically to a single claimant in a personal injury case who suffers non-economic damages in excess of the caps, as is the case here,” Forst wrote.
     In the case at hand, Kalitan went to the Broward General Medical Center in 2007 for outpatient surgery to treat carpal tunnel syndrome.
     A tube punctured Kalitan’s esophagus during anesthesia but the hospital failed to recognize this and discharged her that afternoon.
     A neighbor found Kalitan unresponsive the next day, and the woman underwent life-saving surgery to repair her esophagus.
     After weeks in a drug-induced coma, and months in therapy, Kalitan still reports pain and other health issues stemming from her ordeal.
     A jury ultimately awarded Kalitan more than $4.7 million for past and future pain and suffering, but the trial court slashed the judgment based on Florida’s noneconomic damages cap.
     In addition to lopping nearly $2 million off the top, the court reduced the award by another $1.3 million after capping the hospital’s share of liability at $100,000 based on its status as a sovereign entity.
     In ordering the jury’s total award reinstated last week, the appeals court noted that the “these damages may still be limited by the doctrine of sovereign immunity.”
     Kalitan was represented by Philip Burlington and Nichole Segal with Burlington & Rockenbach.
     McCall, the wrongful-death case on whose precedent the new case relies, involved the death of a woman during induced labor in 2006.
     A Florida jury that heard the lawsuit brought against the government under the Federal Tort Claims Act awarded the woman’s parents and son $980,462 in economic damages and $2 million in noneconomic damages.

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