In a written opinion in October of 2019 the 2nd District Court of Appeals urged the Florida Supreme Court to look again at whether the state is in the midst of a medical-malpractice insurance “crisis” that would justify limiting damages in certain lawsuits.

The written opinion of the 2nd DCA’s stemmed from a case out of Lee County Florida, challenging the constitutionality of a state law that prevented the adult children of Ramona Reyes from recovering non-economic damages — commonly known as pain and suffering damages — in her death.

The law as it currently stands bars adult children from recovering non-economic damages for wrongful death in medical-malpractice cases, though adult children are normally able to seek and collect such damages for wrongful death in other types of lawsuits. As the law currently stands, it is only in medical malpractice cases that adult children are not able to make a claim for the pain and suffering that they have sustained. That legal difference and unfairness led attorneys for Reyes’ adult children, Sandra Santiago and Norma Caceres, to argue that the medical-malpractice law violates constitutional equal-protection rights as it is unfair and was created to protect corporate insurance companies from paying out large verdicts in catastrophic medical malpractice cases all in the name of saving money.

The written opinion cited arguments by the Legislatures from the late 1990s and early 2000s that justified barring adult children from recovering non-economic damages because of a medical malpractice “crisis” that involved skyrocketing insurance costs for doctors and other health providers.

Research has since shown that this so called “medical malpractice crisis” which was sold to the public as a good thing, was in fact an idea manufactured by lobbyists for the insurance companies in effort to lower their payouts on verdicts and save money which selling the crisis to the public as a needed legislative change. It has since been well established that the medical malpractice crisis was actually non existent. Moreover, it has also been established that the these skyrocketing insurance rates that were allegedly due to lawyers collecting excessively large verdicts have continued to skyrocket and have in fact not decreased. In sum, insurance rates continued to increase, doctors have continued to pay high premiums, and insurance companies have been protected from paying out large verdicts decided on by juries due to caps in damages that are not existent with other types of cases.

The 2nd DCA appeals court in this recent decision urged the Florida Supreme Court to revisit the issue — a move known as certifying a “question of great public importance” — because of 2014 and 2017 Supreme Court rulings that questioned the existence of a medical-malpractice crisis and which ruled that other caps on damages in malpractice cases was unconstitutional.

The 2nd DCA went so far as to write that “in light” of the 2014 and 2017 decisions, it wants the Supreme Court to decide whether the wrongful-death damages ban violates equal-protection rights. The panel said “Santiago and Caceres contend these later declarations that there is no evidence of an ongoing medical malpractice crisis must undermine” the Supreme Court’s 2000 rationale for upholding the law in a case known as Mizrahi v. North Miami Medical Center

It is the hopes of the Law Offices of James B Coulter that our Supreme Court continues the trend of striking down the medical malpractice reform act piece by piece so that the constitutional rights of those who have been injured and their families are allowed access to the court as the United States Constitution demands.

The time is long overdue that our constitutional rights to be put before corporate greed and profit.