As of October 1, 2011 residents of Florida who are Medicaid recipients will have arbitrary limitations imposed upon their non-economic damages as a result of the negligence of doctors providing service and care to them.
Section 766.118 of the Florida Statutes is entitled "Determination of Non-Economic Damages" and is the new cap limiting damages for Medicaid recipients.
The new statute states that regardless of the number of doctors providing services and care, non-economic damages may not exceed $300,000.00 per claimant. The statute provides an exception to the caps, but requires that the injured party prove by clear and convincing evidence that the doctor or hospital acted in a wrongful manner. The statute goes on to define a wrongful manner as actions of bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety or property. This exception basically closes the book on non-economic recoveries, beyond the arbitrary $300,000.00 cap, for Medicaid recipients who happen to be getting medical care.
The statute goes on to also provide that any doctor who provides medical services and medical care to a Medicaid recipient is not liable for more than $200,000.00 of non-economic damages regardless of the number of claimants. There is no legitimate reason for the legislature to have created these draconian and unfair limitations on citizens who are Medicaid recipients.
The Office of Insurance Regulation noted that overall medical negligence cases have been decreasing since 2004. The number of closed claims in 2004 was 3,574 and the number of closed cases in 2009 was 3,087. Damages have been decreasing since 2004 from a high of $664 million per year to $570 million per year in 2009. The current amount of litigation and claims do not justify further arbitrarily imposed caps on damages for the neediest citizens, who are often the same people that are most harmed by medical negligence.
These non-economic damage limitation caps for Medicaid recipients will be challenged in the courts. Clearly, issues as to whether these medical malpractice statutes violate Florida's Constitutional provisions pertaining to equal protection, access to the courts, right to trial by jury, and separation of powers need to be resolved. There are also federal constitutional concerns as to discriminating against individuals who receive public assistance.
Limitation caps on personal injury damages whether they involve medical negligence or any other form of negligence are fundamentally against the Florida Constitution and should be attacked at every level. Legislators should not be fooled by lobbyists and powerful institutions with extraordinary financial resources and backing to take away the rights of the victims of our society. These actions simply move the responsibility from wrongdoers and shoulder them to government. Thus, all other citizens in our society must pay through tax dollars. No one else should pay for the negligence of doctors and hospitals. Accountability should remain fully where it belongs, on the wrongdoer.