Less than 4 months after the Florida Supreme Court struck down the state’s wrongful death noneconomic damages cap, the fate of the state’s personal injury medical malpractice award limit may also be in jeopardy.
The state’s highest court heard oral arguments in June regarding Myles et al. v. Weingrad, an injury malpractice case that focuses on whether Florida’s $500,000 medical malpractice noneconomic damages cap can be applied retroactively. However, after the court in March ruled that the state’s wrongful death cap was unconstitutional, the plaintiffs in Weingrad now argue the injury limit should be thrown out on constitutional grounds.
The personal injury malpractice cap is indeed in danger of being overturned, said Jeff Scott, general counsel for the Florida Medical Association. The FMA is not directly involved in the case.
"Given the track record of the (Florida) Supreme Court, one would have to conclude the likelihood of a favorable opinion is slim," Mr. Scott said in an interview.
The case stems from leg surgery performed on Kimberly Ann Miles by Aventura, Fla.–based surgeon Dr. Daniel Weingrad. Ms. Miles claimed the surgery to remove residual melanoma was unnecessary and resulted in ongoing pain. A jury awarded Ms. Miles and her husband $1.5 million in noneconomic damages and $16,000 in economic damages.
Dr. Weingrad requested that the trial court reduce the noneconomic damages award to $500,000 in accordance with the state’s cap, enacted in 2003. The plaintiffs argued the statute was implemented after the alleged negligence occurred and should not apply. An appeals court ruled in favor of Dr. Weingrad, and the plaintiffs appealed to the Florida Supreme Court.
Before Florida Supreme Court justices heard the case however, they reviewed McCall v. United States in which they overturned the state’s $1 million wrongful death damages cap. The award limit violated plaintiffs’ equal protection rights, judges said. In the months following the decision, plaintiffs’ attorneys have tried to get the injury award limit struck down by citing language in McCall, said Dinah S. Stein, a malpractice defense attorney who represents Dr. Weingrad.