A $53 Million Verdict Based on No Evidence?

Wayne J. Guglielmo, MA

Disclosures

July 19, 2016

In This Article

Tussles Over a Med-Mal Cap Come to a Head

Two years after it declared the state's medical malpractice cap unconstitutional, the Florida Supreme Court has once again been asked to weigh in on the question of limits on noneconomic damages—only this time more broadly, according to a story by the News Service of Florida that was posted on News4Jax and reported elsewhere.[3]

The case underlying the high court review involves dental assistant Susan Kalitan, who in 2007 went into a hospital associated with the North Broward Hospital District (now Broward Health) for surgery to treat her carpal tunnel syndrome. During anesthesia, tubes inserted into her mouth and esophagus perforated her esophagus, requiring repair.

In 2008, Kalitan filed a medical malpractice suit against North Broward Hospital District and other defendants. At trial, a jury awarded Kalitan $4 million in noneconomic damages, but that amount was cut roughly in half as the result of the state's malpractice statute passed under then-governor Jeb Bush. That 2003 malpractice overhaul—enacted at a time when doctor groups saw a "crisis" of high insurance premiums—capped damages at different amounts, depending on the number of claimants, the types of defendants, and so forth.

Fast-forward 8 years, from an incident that occurred in 2006. In 2014, the Florida Supreme Court reviewed a wrongful death case—involving Michelle McCall, who had died while giving birth in a Florida hospital—and found that in such cases the state's limits on noneconomic damages didn't pass constitutional muster.

Despite the differences in the two cases—Kalitan's suit involves personal injury, not wrongful death—Kalitan and her attorneys cited the McCall case in appealing the reduction of her award to the state's high court.

During oral arguments last month, Justice Barbara Pariente questioned whether lawmakers' rationale for damage limits in 2003 was still valid today: "Is there a rational basis for this cap on damages in the year 2016, based on a crisis that was said to exist 20 or 30 years ago?"

Not surprisingly, the two disputing parties answered this question very differently. For her part, the attorney for the hospital district and other defendants said that the burden of proof about the insurance crisis rested on the plaintiff's shoulders: "If we are going to find that the crisis is over, or there was never a crisis, or so forth...it needs to be done with evidence in an [adversarial] proceeding, to determine whether and when this is the case."

Kalitan's attorney countered that the high court had settled the "crisis" question when it looked at the facts of the McCall case and handed down its 2014 wrongful-death ruling. "The injury to Michelle McCall when she died was in 2006, the injury to my client was in 2007.... If [an insurance crisis] didn't exist in 2006, it didn't exist in 2007 when my client suffered her injuries."

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