The Effect Of Politics On Your Right To Recover Damages
Politics and how it affects your right to recover damages
Brett A. Panter
Historically our government has had separate independent branches. The Judiciary has been a separate part of the government, distinct from the legislative branch.
Politics and special interest groups now play a major role in interfering with the judiciary branch of the government. Recently, the Florida Legislature, along with Gov. Bush, instituted legislation that substantially and materially alters the powers of the judiciary branch and specifically takes away the jury’s right to determine what is fair and adequate compensation for negligence.
Politicians have branded together due to extraordinary pressures from the insurance and medical industries and taken away what should be within the exclusive power and dominion of jurors’ responsibilities and duties to assess claims. This column will discuss the caps instituted by the legislature on litigants’ rights.
Effective last September, people who are injured as a result of medical malpractice may have their damages capped. With respect to claims against doctors for noneconomic damages arising out of emergency room cases, the damages will be capped at $150,000 per claimant, with a maximum of $300,000 regardless of how many claimants are involved. These caps apply to emergency room physicians for care rendered prior to when a patient is stabilized in the emergency room.
For an injury that results from a nonpractitioner’s emergency services, non-economic damages are capped at $750,000 per claimant regardless of the number of defendants, but not to exceed $1.5 million from all non-practitioner defendants regardless of the number of claimants. Generally, a practitioner is defined as a specific type of physician, while the non-practitioner definition would apply to nurses and other hospital personnel.
There also has been a cap instituted on non-economic damages applying to personal injury and wrongful death as a result of medical negligence outside the emergency room setting.
Non-economic damages are defined as damages for injury, pain, disability, disfigurement and the loss of capacity to enjoy life. These damages differ from economic damages, which are damages to recover for lost wages, medical bills and other such damages. Non-economic damages will now be capped at $500,000 from each doctor, but not to exceed $1 million from all doctors regardless of the number of claimants. The caps are $750,000 per claimant for all non-practitioner defendants regardless of the number of claimants. Thus, the total available for a given injury, regardless of the number of victims, is $2.5 million.
There are many cases where the only negligent parties are doctors defendants and also there are many cases where there is simply one doctor who is a defendant. Therefore, there will be many cases where the non-economic damages will, in fact, be limited to $500,000.
When the negligence results in a permanent vegetative state or death, the non-economic damages are capped at $1 million regardless of the number of claimants and regardless of the number of doctor defendants and 1.5 million from all non-practitioner defendants regardless of the number of claimants.
The other exception is the injured patient may recover non-economic damages up to $1 million for the injured patient from all doctor defendants and $1.5 million from all non-practitioner defendants regardless of the number of claimants.
The other exception is the injured patient may recover non-economic damages up to $1 million for the injured patient from all doctor defendants and $1.5 million for the injured patient from all practitioner defendants if the injury is a result of certain specified catastrophic injuries such as severe head, brain, spinal cord and serious burn injuries, as well as blindness or loss of a limb.
The constitutionality of these legislative changes will be seriously challenged and ultimately the Florida Supreme Court will look over this legislative interference with the judicial branch of government very closely.
One of the great things of our country is that we allow jurors to make an appropriate and fair determination of claims. There are a substantial number of medical negligence claims that result in a jury deciding there was no negligence, and no compensation is awarded. For those cases where negligence is found, there is no doubt that fairness and the law of the land require that the jury make the final, ultimate determination. Caps serve only to upset the scales of justice.
Brett Panter is a board certified Pinecrest attorney with the Firm of Panter, Panter & Sampedro, P.A., 6950 N. Kendall Drive. To contact Panter, call 305-662-6178, address email to bpanterandpartner.com or log on to http://www.panterlaw.com.