No Such Thing as Pain and Suffering in Medical Malpractice

June 01, 2011

An appeals court has recently sided with the Republican-dominated Florida legislature. The court upheld the cap on damages that injured patients can be awarded in medical malpractice cases. Specifically, the cap limits noneconomic damages - pain and suffering - to $500,000 per doctor, as reported by the Miami Herald.

Looking at the issue broadly, the existence of a cap on damages arising out of harm from negligence and medical mistakes effectively discredits pain and suffering. Caps send a clear message: that there is no such thing as pain and suffering in medical malpractice - or, if there is, it's only worth a maximum of $500,000, no matter how grievous the injury.

If you or a member of your family has suffered an injury, contact a Miami medical malpractice lawyer for an evaluation of the facts of the case.

The Florida damages cap law also prescribes bench trials, or judge-only trials, rather than jury trials. As many of you will recall, the right to a trial by jury has been a staple of American law since our nation's founding. A jury is composed of 12 jurors, who deliberate together, and decide the outcome of a case in light of the facts as they were presented and based on the law as instructed by the judge.

It should be within a jury's power to decide whether or not pain and suffering is worth more than $500,000 in medical malpractice cases.

As it happens, the Miami Herald reports that the judge at the trial level (prior to the appeal) had found that Michelle McCall's estate should have been awarded $2 million in noneconomic damages - but felt obligated by law to reduce the amount by half because of the damages cap.

McCall died in 2006 as a result of medical negligence. Malpractice lawyers successfully alleged that both a nurse and a doctor failed to provide adequate care for McCall while she gave birth. Presumably, McCall's estate was awarded $500,000 for each negligent act committed by the nurse and doctor.

On appeal, the court found that doctors and other health care providers were retiring, changing their medical practice, or fleeing the state of Florida because of the rising costs of medical malpractice insurance. Thus, the damages cap would help to reduce the cost.

But this argument has a fatal flaw: it presumes that malpractice insurance premiums rise only because of tort lawyers and their lawsuits on behalf of injured victims of medical mistakes. If that were so, it would also mean that insurance companies would never raise their rates for other reasons, such as a motivation, at bottom, by a desire to turn a profit and pay out as little as possible. It would also mean that the Republican agenda in passing a law providing for a cap on damages and judge-only trials is not as one-sided as it certainly seems. If you've been a victim of doctor, health care provider, or other medical professional negligence, contact our Miami personal injury attorney or visit their website, http://www.ferrerlaw.com, for more information about your legal rights.