2012 could be historic for injured patients if the Florida Supreme Court follows the lead of Georgia, Illinois, and other states who have declared caps on damages in medical malpractice cases to be unconstitutional. The courts have reasoned that limitations on damages violate an individual’s access to the courts, treat the medical profession different from all others, and often force the state taxpayers to absorb the cost of future care.

Medical malpractice law has always been a hot topic, especially in Florida, where extensive lobbying by hospitals, doctors, and the insurance industry has led to major changes affecting the rights of injured victims. While medical professionals have argued that malpractice lawsuits have caused billions of dollars to be wasted on unneeded medical tests; yet privately, they admit that these same tests would be ordered if the patient was their family member.

As Florida medical malpractice attorneys we have been closely monitoring the debate over medical malpractice caps, which is set to come before the Florida Supreme Court next year.

In 2003, a reform of Florida’s medical malpractice laws placed caps on how much a person could receive for pain and suffering in a medical malpractice case. The limits of $500,000 to $1 million for doctors, nurses and other health professionals and $750,000 to $1.5 million for hospitals and healthcare businesses was lauded as saving Florida’s medical community from closing up shop and heading out of state, Orlando Business Journal reports.

In 2005, an article from the Agency for Healthcare Research and Quality said the changes to the system made it “dysfunctional” and that other states should be leery of following in Florida’s footsteps. Opponents of the law believed that that victims of medical injuries would suffer because of less opportunity to collect damages no matter how sloppy the work of a doctor or medical facility. Supporters of caps on damages said that without the caps, Florida wouldn’t be able to retain top-notch physicians and specialists who would be willing to take the risk of operating or caring for sick patients.

The Florida Supreme Court is set to decide whether limits on malpractice damages are constitutional. Generally, pain and suffering (along with other non-economic damages) in a civil lawsuit are designed to compensate an injured person but they also can serve as a deterrent. In criminal cases where a judge may sentence a criminal defendant to a large number of years in prison, a jury in a civil case can make sure others pay attention with big verdicts in favor of those injured by medical malpractice.

The case before the Court stems from a 2005 birth injury lawsuit involving a wrongful death at an Air Force medical clinic. The case is Michelle Evette McCall et al v. United States of America. Despite early and prolonged low-blood pressure problems with the birth mother, the woman was not transferred to OB/GYN and an obstetrician was not brought in to perform a cesarean section. After delivering a healthy child, the mother’s condition deteriorated and she never regained consciousness. Michelle bled internally post-delivery and later died when the monitoring of her blood pressure, among other things, was neglected.

The family was awarded nearly $3 million at trial — but the award was lowered to $1 million because of Florida’s caps. The Federal judge determined that Florida’s cap was constitutional under the U.S. Constitution but he granted the plaintiff’s motion to certify the state constitutional issues to the Florida Supreme Court.

The Federal court has certified several questions to the Florida Supreme Court involving state constitutional grounds specifically asking the court to determine whether the caps violate state constitutional provisions pertaining to equal protection, access to the courts, right to trial by jury and separation of powers.

HealthGrades reports an average of 195,000 people a year are killed due to preventable medical error — or 6 times more than die in car accidents each year.

The ironic part of caps on damages in medical malpractice claims is that it harms the persons most seriously injured and most in need of help and support. While the argument has been repeatedly made that caps are necessary to keep good physicians in Florida, the testimony from the insurance industry at the time of passage of the law was that there was no real evidence of doctors leaving the state. Unfortunately, as soon as caps in any type of action go into effect the burden for paying the expenses of the seriously injured often quickly shifts to taxpayers.

Medical Malpractice is not the only area where the insurance industry is aggressively pursuing limitations on the right to recover damages. There are currently proposals to make it more difficult for injured motorists to make a claim against their own insurance company as will soon be reporting reported on our Florida car accident attorneys blog.

To speak to one of our experienced personal injury lawyers in Fort Myers or Fort Lauderdale call (239) 277-2005 or (954) 524-2424.

Cases throughout Florida may end up coming unraveled if judges take note of what courts in Miami and Manatee County have done recently with drug cases that have been ruled unconstitutional, the Sarasota Herald-Tribune reports.

Cases of drug possession and drug sales may be dropped after Judge Mary Scriven, of the U.S. Middle District of Florida, ruled that Florida’s drug possession statute is unconstitutional because it lacks the element of intent — opponents argue that violates due process because it puts the legal burden on the defendant. Three circuit court judges have now asked the Florida Supreme Court to address the constitutionality question of Florida Statutes Section 893.13.

A Fort Lauderdale criminal defense attorney who is familiar with recent case law can often use evolving law to a client’s advantage. These precedent setting cases typically start at the trial-court level when a defendant and experienced lawyer see a legal issue that permits them to fight the charges.

In this case, the federal judge used a three-part test from the U.S. Supreme Court to analyze the statute: Whether the penalty imposed was slight, whether conviction resulted in substantial stigma, and whether the law regulates substantially dangerous or deleterious conduct. Clearly, a conviction of drug possession or drug trafficking fails this test.

The concept is simple: As the law stands, a UPS driver or U.S. Postal Service mail carrier could technically be charged with possession of prescription drugs if they are unknowingly delivering medicine to someone who doesn’t have a prescription. Obviously, that isn’t the intent of the law.

Thousands of drug cases swing in the balance as judges face the unconstitutionality of the law that currently guides them. Miami-Dade Circuit Judge Milton Hirsch has already cited the ruling in declaring the state law unconstitutional and dismissing 39 drug possession cases. In Manatee County, a judge recently dismissed charges against 42 defendants.

The Manatee judge wrote that there are many examples of a person being charged with possession of drugs, such as a roommate who has no knowledge that someone else has illegal drugs in the house. Lawmakers eliminated the intent part of the law in 2002.

Judges in other areas of the state are expected to take up the issue in the coming weeks as knowledgeable defense lawyers in Fort Lauderdale, Fort Myers use the ruling in the defense of clients facing drug charges in Florida. Meanwhile, the 2nd district court of appeal in Lakeland, Florida has sent a certified question to the Florida Supreme Court to ask the Court get involved and rule on the issue.

If you are in need of a defense lawyer, feel free to call our office to address any concerns you may have at 954.524.2424 in Fort Lauderdale or our Fort Myers office at 239.277.0005. The Garvin Law Firm has two locations to best serve the needs out clients throughout South and Southwest Florida.

Back in 2008, the Florida Supreme Court ruled against parent liability waivers for a minor participating in activities at a commercial venue.

The wrongful-death case, Scott Corey Kirton v. Jordan Fields, involved 14-year-old Christopher Jones, killed in 2003 while riding an all-terrain vehicle at Thunder Cross Motor Sports Park in Okeechobee. His father had signed a risk and liability waiver as the facility required.

The high court’s ruling said the state had no statute supporting the waivers – and that wider public concerns cannot allow parents to waive the rights of minors to legal recourse when injury occurs. The releases served commercial interests more than the child, the court ruled, and the boy’s family was allowed to sue the track despite his father having signed the waiver.

The ruling set off a two-year battle between business venues, agitating to restore the waivers, and injury lawyers representing Florida’s children. Businesses, including Disney World, argued that the waivers were necessary to prevent frivolous negligence claims.

The Florida Justice Association, trade group for the state’s trial lawyers, countered that companies were shielded at the expense of innocent victims who might have to pay medical bills, and if they couldn’t, the cost would be passed on to taxpayers.

“Are we going to be a state that, public-policy-wise, says that we excuse negligent, harmful acts against children? That’s what it boils down to,” FJA President Michael Haggard told the Orlando Sentinel in 2009.

Last year the FJA’s opinion prevailed, successfully blocking legislation.

Not so this year. The Florida Senate and House unanimously passed SB 2440, reinstating parental waivers of liability for businesses, although neither side could claim outright victory.

The initial legislation, which would have allowed theme parks and various sports facilities to waive gross negligence, was replaced by a weaker measure that protects against “inherent risk,” a much lower legal standard.

It has been standard practice for recreational activity providers such as amusement parks and sports leagues to require waivers, who claim that absence of protection from liability could reduce the activities available to children and potentially affect tourist attractions.

But what about adequate protection for kids who play sports, go to water and theme parks, ice-skating and roller rinks, motocross tracks? When a child is injured, who bears the burden of proving what constitutes “inherent risk” could be put to the test and ultimately lead to another legal challenge of waivers.

To read the bill and its analysis, click here.

In courtrooms around the state, it has long been the practice that juveniles were to be shackled by the wrists and ankles with belly chains, chained to furniture or chained to each other when they were brought to appear before a judge.

In this 6-1 opinion, The Florida Court stated,  that this process was “repugnant, degrading, humiliating and contrary to the primary purposes of the juvenile justice system.”

One of the primary goals of the juvenile justice system is rehabilitation and many have argued that this process actually harms the child and can have long lasting psychological consequences.

The Florida Supreme Court, suggested that the shackling may also violate the children’s due process rights as it could be seen as cruel and unusual punishment.

A Fort Lauderdale Judge once told me that juveniles had to be shackled after two juveniles escaped as they were being transported to the courtroom. He said these juveniles, who were only handcuffed to each other, ran out front of the Broward Courthouse and each decided to run on the opposite side of a palm tree only to smack heads on the other side. The judge explained that these juveniles had serious injuries and that ever sense that day all juveniles had to be shackled. I am not sure if the judge made this up or if that was really the reason why all juvenile offenders had to be shackled.

At the time I heard the judge’s story I was working as a juvenile prosecutor and believed that juvenile delinquents were treated too lightly and I figured that they were only going to get a smack on the wrist so at least the shackling process might make them think twice before committing their next crime. Once I got out of the juvenile division I learned that even the adult defendants didn’t have to be shackled and that it wasn’t  really fair that the juveniles did.

At any rate, the Florida rules of Juvenile Procedure now state that restraints are allowed only to prevent physical harm against the child or others, if they pose a flight risk, or if they have a history of disruptive behavior in court and there are no alternatives.

Many public defenders and juvenile rights advocates around the state are very pleased with this decision; what’s your take?