Caps on non-economic damages in medical malpractice lawsuits – set at $250,000 per incident under Gov. Jeb Bush – are unconstitutional. The Florida Supreme Court decided this soundly – first in the 2015 case of Estate of McCall v. U.S. (medical malpractice wrongful death cases) and again in 2017 with its ruling in North Broward Hospital District v. Kalitan (medical malpractice personal injury cases).
But hospitals in Florida have found a loophole to this in the form of arbitration agreements. This was recently underscored in a case decided by Florida’s Fourth District Court of Appeal. In Plantation General Hospital v. Belzi, the appellate panel reversed a $4 million damage award and remanded to the lower court for a recalculation of damages – specifically to be in accordance with the provisions of F.S. 766.207, which still allows the $250,000 non-economic damage cap in cases handled by “voluntary arbitration.”
The Belzi case involved the death of a 24-year-old wife and mother who lost so much oxygen during childbirth, she was left in a vegetative state and died three months later. Her family filed a wrongful death medical malpractice lawsuit against the doctor and the hospital alleging their medical negligence resulted in the young woman’s death. Her child, delivered via emergency c-section, survived.
Pursuant to F.S. 766.207, non-economic damages in “voluntary binding arbitration” agreements between patients and hospitals are still capped at $250,000. Non-economic damages are calculated on a percentage basis with respect to the person’s capacity to enjoy life. So for example in a personal injury lawsuit where the court finds the claimant’s injuries resulted in a 50 percent reduction in his or her capacity to enjoy life, plaintiff would receive no more than $125,000 in non-economic damages. In wrongful death cases, still the most one could receive would be $250,000.
Plaintiffs won their case, with jurors awarding $4 million in damages. On appeal, the hospital argued that the estate’s economic experts wrongly included “loss of guidance and companionship” in the economic losses suffered by plaintiffs (widower and daughter), for which they were already awarded $250,000 each. The hospital argued this calculation of lost companionship and guidance as a compensable service under the non-economic damage calculations was a specific attempt to circumvent the cap (this point was made during arbitration, but was overruled by the chief arbitrator).
The appellate court, however, took the hospital’s side on this issue, despite the position of the plaintiffs that the court lacked authority to intervene because there had been no evidence of “manifest injustice.” The court determined it did have jurisdiction to review the award, and moreover, that it was erroneous for the panel to allow the loss of “household services” as a non-economic damage for lost companionship, lost advice, guidance and counsel, and that there was an improper application of statute. These damages, the court ruled, fall within the statutory limitations of non-economic damages, and thus should not have been included in the economic damage award.
The court reversed in part the arbitration award, directing the panel to reconsider and remove the past and future loss of household services any amounts of loss of companionship and guidance for either the widower or his daughter. After this adjustment, the panel was ordered to recalculate the attorney’s fee award.
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Additional Resources:
Plantation General Hospital v. Belzi, April 4, 2018, Florida’s Fourth District Court of Appeal
More Blog Entries:
Report: Florida Surgical Centers Booming, But Ill-Equipped for Emergencies, March 24, 2018, Fort Lauderdale Medical Malpractice Attorney Blog