◆ The Front Burner: What’s next for medical malpractice?
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Americans deserve safe medical care and have a right to hold medical providers accountable when the unthinkable happens. Sadly, the unthinkable is not impossible.
Patients are injured by medical providers operating on the wrong body part, performing the wrong procedure, and even operating on the wrong patient at a rate of up to 40 times per week in U.S. hospitals. And every year, more than 440,000 Americans die from preventable medical errors.
Victims of these preventable medical errors suffer unique trauma that requires individualized, expensive and often lifelong care, but many states have enacted laws that establish inadequately low caps on the amount an injured patient can recover for the losses they experience. These losses can be difficult to quantify, but they are painfully real for the victim.
Until last month, Florida law said these lifealtering losses were worth no more than $500,000.
On June 8, the Florida Supreme Court struck down a 14-year-old state law that imposed a cap on noneconomic damages — sometimes called pain and suffering damages — for Floridians injured by a negligent medical provider. Florida’s high court determined the caps “arbitrarily reduce damage awards for plaintiffs who suffer the most drastic injuries,” and that the law clearly violated the rights of injured patients to fairly receive justice.
With that decision, Florida joined a growing list of state courts that have struck down laws limiting the noneconomic damages that residents can recover if they are injured by a medical provider. In fact, weeks after the Florida decision, a Wisconsin appeals court determined that its state cap of $750,000 violates its state constitution and wrongly punishes the victims of heinous medical errors.
Under the U.S. Constitution, states have the power to enact and enforce laws regarding medical negligence. That’s why, decades ago, the insurance industry and health-care interests turned to the states to push legislation to restrict citizens’ ability to fully recover for losses caused by a medical provider. The insurance industry and health-care interests — with the help of some well-funded front groups — invented a malpractice insurance “crisis” that was supposedly driving doctors out of state, and then claimed capping damages was the solution.
Many states adopted these policies, but state courts are now finding that claims of a malpractice-insurance crisis are fictitious, and forcing caps on damages does nothing except further victimize people already harmed by medical providers.
State efforts to restore the rights of injured patients and their families have not gone unnoticed by the insurance industry and health-care interests. They have now turned to Congress for an even bigger handout with the deceptively named Protecting Access to Care Act (House Resolution 1215). This bill would do nothing to help patients access safe, affordable medical care, but instead would grant immunity to the medical providers who harm them and bail out the insurers otherwise obligated to make things right.
H.R. 1215 would impede on states’ rights by establishing a dismally low federal cap of $250,000 for noneconomic damages. If this bill becomes law, Florida would be among nearly 20 states whose citizens would have their constitutional right trampled on for a bill that only serves to shield the insurance and health-care industry while putting Americans at risk.
Despite significant bipartisan opposition that included several Florida Republicans, the bill narrowly passed in the U.S. House of Representatives on June 28 by a 218-210 vote. It is encouraging that many federal lawmakers refused to be fooled twice and saw H.R. 1215 for what it is — blatant federal overreach and a handout to the insurance industry and health-care interests on the backs of the American people and their right to justice. COMMENTARY |
On June 8, in North Broward Hospital District v. Kalitan, the Florida Supreme Court ruled that caps on noneconomic damages (pain and suffering) in medical-malpractice lawsuits violated the equal-protection clause. Mostly, the court said that the caps did not pass the “rational-basis test,” where a challenged law must be rationally related to a legitimate government interest.
By deciding the Legislature had no rational basis for imposing the caps, the court crowned itself fact-finder and policymaker, rejecting all of the Legislature’s work and its role under our system of government.
Under the rational-basis test, the court is supposed to defer to the Legislature if there is any “rational basis” in the record. Here, the court found there was no conceivable rational basis for the Legislature’s action.
Let’s take a look at the record. In 2002, members of the Governor’s Select Task Force on Healthcare Professional Liability Insurance spent months traveling around the state, listening to all interested parties, gathering relevant data, and analyzing trends. What they observed and documented was alarming:
In 2002, the average liability premium per doctor in Florida was 55 percent higher than the national average.
For the period from 1996 to 2002, average insurance premiums in Florida shot up 64 percent compared to the national average increase of 26 percent.
The number of insurance companies in Florida had dropped from 66 in the late 1990s to just 12 by 2002. Of the 12, only four companies were routinely issuing liability-insurance policies.
The final report stated that “the recommendation that will have the greatest long-term impact on the healthcare provider liability insurance rates, and thus eliminate the crises of availability and affordability of health care in Florida, was a cap on noneconomic damages.”
After conducting its own hearings and review, the Legislature agreed with this conclusion and passed its version of caps on noneconomic damages. Courts have previously held that under a rational-basis test, “[t]he burden is upon the party challenging the statute ... to show that there is no conceivable factual predicate which would rationally support the classification under attack” and that “a legislative choice is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data.”
Even Justice Barbara Pariente, in a similar opinion from 2014, Estate of McCall v. United States, agreed that, “there is simply no precedent for this court to engage in its own independent evaluation and reweighing of the facts” under a rational-basis test.
Yet, in Kalitan, Pariente joined in Justice Jorge Labarga’s opinion that “because there is no evidence of a continuing medical malpractice insurance crisis justifying the arbitrary and invidious discrimination between medical malpractice victims, there is no rational relationship between the personal injury noneconomic damage caps in section 766.118 and alleviating this purported crisis.”
Justice Ricky Polston said it best in his dissent, joined by Justices Charles Canady and C. Alan Lawson:
“The majority just discards and ignores all of the Legislature’s work and fact-finding. But, under our constitutional system, it is the Legislature, not this Court, that is entitled to make laws as a matter of policy based upon the facts it finds. … It is the Legislature’s task to decide whether a medical malpractice crisis exists, whether a medical malpractice crisis has abated, and whether the Florida Statutes should be amended accordingly.”
If the court could still find, after all that fact-finding, that the Legislature’s conclusions were irrational, then any future medicalmalpractice reform will need to focus even more squarely on the frequency and severity of medical-malpractice claims. In the meantime, the likelihood of a return to the medical-malpractice crises of the last decade will grow.