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Noneconomic Damages Cap in Medical Malpractice Not Retroactive; $1.45M Award


A woman was diagnosed with melanoma. She received medical care, and a cancerous tumor was removed from her leg in an outpatient procedure. While she was told that the tumor had been completely removed and no melanoma remained, she sought a second medical opinion from a surgical oncologist. The surgical oncologist informed the woman that further surgery was warranted to ensure that the entire melanoma had been excised. The surgical oncologist performed the surgical procedure. Postoperative test results showed that there had been no residual melanoma following the first surgical procedure. There were complications following the second surgery. The woman had to be hospitalized for four days to treat an infection, which did not completely resolve for two months. The woman suffered from permanent swelling and excruciating pain and now has limited mobility—she can neither walk long distances nor stand for long periods of time.

 

The woman and her husband sued the surgical oncologist. The complaint alleged that due to the surgical oncologist’s malpractice, the woman has suffered permanent injuries. Following the presentation of evidence, the jury returned a verdict for the woman and awarded her economic damages amounting to $16,104 and noneconomic damages for pain and suffering amounting to $1.45 million, and awarded her husband noneconomic damages for loss of consortium amounting to $50,000.

 

The surgical oncologist moved to reduce the award of noneconomic damages to $500,000 pursuant to section 766.118(2), Florida Statutes (2003), the statutory cap on noneconomic damages. The Miami-Dade County Circuit Court denied the motion ruling that retroactive application of the statutory cap on noneconomic damages was constitutionally impermissible.

 

The surgical oncologist appealed. The Third District Court of Appeal entered an opinion reversing the trial court's judgment and the jury award of noneconomic damages. The appellate court held that the statutory cap on noneconomic damages did apply retroactively, rejecting the Fourth District Court of Appeal's decision in another case, which had reached a contrary result.

 

On remand, the trial court entered a judgment for the woman based on the $500,000 statutory cap on noneconomic damages. The woman appealed. The Third District Court of Appeal affirmed.

 

The Supreme Court of Florida quashed the appellate court’s decision and remanded with instructions that the original final judgment be reinstated. The court held that the statutory cap on noneconomic damages could not be applied retroactively.

 

The statutory cap on noneconomic damages could not be applied retroactively. Generally, a litigant's substantive and vested rights may not be infringed upon by the retroactive application of a substantive statute. The woman’s cause of action accrued more than seven months before the legislation capping noneconomic damages in medical malpractice actions went into effect. The retroactive application of the statutory cap on noneconomic damages would impair the woman's substantive rights, which accrued and vested on a date prior to the effective date of the statute. The court concluded that the statutory cap on noneconomic damages could not be applied retroactively to the woman’s medical malpractice action that accrued prior to effective date of statute.

 

The Supreme Court of Florida quashed the appellate court’s decision and remanded with instructions that the original final judgment be reinstated, which did not reduce the woman’s noneconomic damages.

 

See: Miles v. Weingrad, 2015 WL 2401261 (Fla., May 21, 2015) (not designated for publication).

 

See also Medical Law Perspectives, November 2014 Report: More Than Skin Deep: Skin Cancer Misdiagnosis and Other Liability Issues

 

See also Medical Law Perspectives, October 2012 Report: Mistakes in Diagnosing Cancer: Liability Concerns for Misdiagnosis, Failure to Diagnose, and Delayed Diagnosis

 

See the Medical Law Perspectives November 25, 2014, Blog: Skin Cancer Incidence Rises; Surgeon General Issues Call to Action 

 

See the Medical Law Perspectives November 24, 2014, Blog: CDC Study Shows Skyrocketing Skin Cancer Costs; What Lawyers Can Learn By Examination and Persuasive Presentation of Statistics

 

 

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