Caps are unconstitutional even when a person suffers a “catastrophic injury”

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A South Florida appeals court ruled recently that a Florida law’s limits on pain and suffering damages — known as non-economic damages in legal terms — are unconstitutional in personal-injury cases, such as the case of Susan Kalitan, who was injured after tubes were inserted into her mouth and esophagus as part of an anesthesia process. The 4th District Court of Appeal’s decision followed a Florida Supreme Court opinion last year that also rejected the malpractice law’s limits on non-economic damages in wrongful-death cases. The appeals court mentioned the Supreme Court’s opinion and said the damage limits violate equal-protection rights under the Florida Constitution.

Under the law, which was signed by then Governor Jeb Bush in 2003, damages were capped at different amounts, depending on factors such as the numbers of claimants in lawsuits and the types of defendants.

Kalitan had filed a malpractice case in Broward County in 2008 and the defendants included the North Broward Hospital District, an anesthesiologist, a certified registered nurse anesthetist and a company that contracted to provide anesthesiologists and staff to the hospital district.  Kalitan’s attorneys said anesthesia was used to put her “to sleep” for the outpatient carpal-tunnel surgery. When she awoke, she complained of chest and back pain but was later sent home. She was rushed to the hospital the next day, with an infection from the perforated esophagus and had to undergo chest and neck surgery. She was place in a drug-induced coma for three weeks while recovering. A jury awarded Kalitan   approximately $4.7 million, with $4 million of that in non-economic damages. But a circuit judge, applying the caps from the 2003 law, reduced the non-economic damages award by about $2 million, which included a finding that Kalitan suffered a “catastrophic injury.”

Under Florida law, catastrophic injury means a permanent impairment constituted by the following:

1. Spinal cord injury involving severe paralysis of an arm, a leg, or the trunk;

2. Amputation of an arm, a hand, a foot, or a leg involving the effective loss of use of that appendage;

3. Severe brain or closed-head injury as evidenced by:

a. Severe sensory or motor disturbances;

b. Severe communication disturbances;

c. Severe complex integrated disturbances of cerebral function;

d. Severe episodic neurological disorders; or

e. Other severe brain and closed-head injury conditions at least as severe in nature as any condition provided in sub-subparagraphs a.-d.;

4. Second-degree or third-degree burns of 25 percent or more of the total body surface or third-degree burns of 5 percent or more to the face and hands;

5. Blindness, defined as a complete and total loss of vision; or

6. Loss of reproductive organs which results in an inability to procreate

 

The appeals court ordered reinstatement of the jury’s original damage award.

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