Doctors and trial lawyers have been waiting with baited breath to determine the legality of caps on non-economic damages (pain and suffering damages) in Florida medical malpractice cases. The Florida Supreme Court answered that question loudly and clearly this week. It is unconstitutional to put a cap on non-economic damages.
Now the medical lobby is going crazy with claims of a pending medical crisis in Florida. They believe doctors will flee the state out of fear of being sued.
The medical malpractice insurance carriers are sitting around conference tables with old-time actuaries determining how much they can or will need to raise premiums to protect themselves from huge noneconomic damage verdicts.
The trial lawyers are loudly cheering that justice has been served and are waiting to bring their cases to trial.
But with all the spin, hyperbole, woes of a crashing health care system and cheers for the shining beacon of justice burning bright, who is right? In truth, we believe everyone is right. It just depends on what question you want to ask.
Are Florida doctors and health care providers at greater risk?
Yes. Prior to the Supreme Court ruling, damages in medical malpractice cases were limited essentially to $250,000. By taking off this particular type of damage, doctors face greater risk and subsequently the possibility of higher verdicts. But doesn’t this also beg the question, how many verdicts actually get pain and suffering damages above that cap? The answer is actually kind of surprising. Only a small percentage of medical malpractice cases ever make it to trial. Of the cases that actually make it to trial, only a small percentage are won by plaintiffs. Of that small percentage won by plaintiffs, only a small percentage of those cases ever get damages above the $250,000!
Will medical malpractice insurance companies raise premiums because of this ruling?
Yes. There are two reasons why insurance companies will raise premiums. Insurance companies set premiums directly related to risk. Since there is a risk of a verdict in excess of $250,000 for noneconomic damages, that entails greater risk. Therefore premiums will rise.
But would premiums rise anyways? Yes. Premiums tend to rise in static markets because as doctors practice there is a greater risk of error. Further, the cost of goods and services increases over time, which is what we call inflation. Therefore, by natural course and conduct, premiums must rise. But that begs the question, will premiums rise faster and greater because of this versus the natural rise of premiums in the market? That is unknown because half of the pundits believe it should not, and half believe that insurance companies will use this opportunity to create a crisis and demand legislation to change the laws.
They might even go so far as to try and change the constitution in Florida! When large corporations or insurance companies are faced with legislation or judicial decisions that they do not like, they go back to the lobbyists and the legislatures to create new laws that help out their big corporate buddies. That is business in America! We all know it, and we often ignore that reality.
The law that created the $250,000 cap in the first place was one born out of a medical malpractice crisis in Florida. That crisis was completely make-believe. Thousands of doctors were not fleeing the state, and medical malpractice premiums were dropping long before the laws took effect. What really helps decrease medical malpractice premiums are jury verdicts. The fact remains that juries are not sympathetic to plaintiffs in a medical malpractice case. Plaintiffs are at a significant disadvantage. Studies have shown that jurors walk into their trial with the predisposed notion that the doctor is given the benefit of the doubt. Medical malpractice insurance lawyers know this, so they drag more cases into trial forcing plaintiffs to prove their cases. This has been a pattern over the last 15 years. Between the propaganda insurance companies produce, Internet rumor-mongering and the significant organizational capacity to undermine plaintiffs’ cases, jury verdicts in favor of injured victims have dropped precipitously in that time period. I know many lawyers who used to practice in medical malpractice and now do other things. They simply felt the risk-benefit analysis of that business model was too hard.
So in the final analysis, while the answer is yes premiums will rise, and the cause of that rise is directly traceable to this judicial opinion, the real root of the problem may not be in the opinion at all!
Was justice served?
Yes. In the final analysis of “justice,” we must recognize that our entire system of governance relies on what happened in this case. Both federal and state systems rely on a state constitution. Those documents are sacrosanct and almost considered holy. They are relied upon because of their deep wisdom in protecting our rights to the grand concepts of democracy, such as freedom of speech, press, religion, property rights, etc. The entire “social compact” teeters on the balance between the legislative branch making laws, the executive branch administering laws and the judicial branch interpreting laws. Here the legislative branch made a law. Here the judicial branch took that legislation and compared it to the wisdom of our state constitution. In their professional wisdom, along with their law clerks and some other very bright lawyers writing amazing briefs on this topic, the Supreme Court of Florida determined that this piece of legislation did not comport with the rights our state constitution bestowed upon its citizens.
The question is not whether malpractice premiums will rise, whether doctors will come or go in Florida, or whether trial lawyers will make more money. The question is far grander in scope and capacity than those mundane, lower-level issues. The question presented in this case is whether the legislature can make a law that takes away the rights of a citizen without showing some great governmental need. Here that could not be done! There was no evidence that malpractice premiums were doing anything to aid the state in a grand way. There is no evidence to prove that removing caps would do something grand for the state other than making insurance companies and doctors happier.
As an attorney and a citizen of the state of Florida, and as a person who cares deeply for the concept of justice and freedom, I believe in all my heart that when a law is made that is so patently and obviously unconstitutional, the Supreme Court must have the courage, and must be unbound from their prior contacts to business, that they can protect these greater issues.