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.

Each year, the Florida Chapter of the American Board of Trial Advocates (FLABOTA) presents the Trial Lawyer of the Year Award to one individual that has exemplified their selection criteria:  being an excellent advocate with a distinguished career, having a superb reputation of high ethics and fair play, and having achieved outstanding results for his or her clients. A lawyer can only receive the Trial Lawyer of the Year Award once in his or her career. Part of the esteemed award includes a $5,000.00 cash donation to the law school of the recipient’s choosing.

Members of FLABOTA select the recipient of the award, and this year Jeff Garvin, of the Garvin Law Firm with offices in Fort Myers and Fort Lauderdale, received the once in a lifetime honor. Garvin chose his alma mater and Jennifer Zedalils of the University of Florida College of Law was on hand to receive the cash portion of the award.

The Garvin Law Firm focuses their practice on personal injury, medical malpractice, and wrongful death law. Garvin was a charter member of the local FLABOTA Chapter and is the immediate past president of the statewide organization. Garvin has been recognized for taking aggressive measures to help stop legislative initiatives that threatened to harm the Florida court system and impair the independence of the judiciary.

Garvin states, “While I have enjoyed leadership roles in both community and statewide organizations during my 37 years as an attorney, the Trial Lawyer of the Year award from FLABOTA means more to me than any award or acknowledgment I have ever received, and I am deeply honored by it.”

In addition to the Trial Lawyer of the Year, the Jurist of the Year Award was presented to the Honorable J. Thomas McGrady, Chief Judge of the Sixth Judicial Circuit, and the Fran Peacock Coker Community Service Award to Attorney Wayne Hogan of Jacksonville, FL. The attendee list for the evening included Chief Justice Charles T. Canady and Former Chief Justice Peggy A. Quince of the Florida Supreme Court, as well as, Circuit Judges and Trial Lawyers from around the state.

The awards were presented last Saturday July 23rd at the 14th Annual FLABOTA Convention at the Hammock Beach Resort in Palm Coast, FL.

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Jeffrey R. Garvin: Garvin has practiced law for over 35 years in the state of Florida, and is currently in practice with his son, Leland Garvin, with offices in Fort Myers and Fort Lauderdale. The Garvin Law Firm focuses their practice on personal injury, medical malpractice, and wrongful death law, in addition to, select criminal defense cases. Among many distinctions, Garvin has been included in the Best Lawyers In America ® from 2006-2011, and chosen as the top personal injury lawyer in Fort Myers for 2011. He is also listed in Florida Super Lawyers, as well as, Law and Leading Attorneys in Florida. Garvin has been a member of ABOTA for 14 years, and currently serves as the Co-Chair of the ABOTA Legislative Review Committee.

The United States House of Representatives yesterday (10/7/09) took action that will hopefully lead to the end of discriminatory treatment of soldiers injured by medical malpractice.

Since the Feres decision by the United States Supreme Court in 1950, soldiers have not been able to bring actions for medical malpractice against the government; this is true irrespective of the level of disregard for their well being. Since the 1950′s untold numbers of soldiers after serving acting duty have been subjected to substandard treatment in military medical facilities. The House Judiciary Committee has now approved the Military Medical Accountability Act which would allow soldiers the same rights as  private citizens injured by medical malpractice.

The bill named after Marine Sgt. Carmelo Rodriguez, who served his country with honor for nearly a decade, including a tour of duty in Iraq, and died as a result of preventable medical negligence. A blotch on his buttock went untreated and misdiagnosed multiple times by military doctors.  By the time Sgt. Rodriguez learned it was a cancerous melanoma the damage was done. Sgt. Rodriguez, the father of a 7 year old son passed away shortly after a proper diagnosis.

If this bill is passed by both the House and the Senate, it is anticipated that it will be signed into law by President Obama.

Back in June of 2007 attorney Jeff Garvin of Fort Myers and Wilton Strickland of Fort Lauderdale successfully argued that medical malpractice was committed when a Broward County otolaryngologist (ENT) failed to diagnose tongue cancer.

A Broward County Jury awarded the Garvin Law Firm client $6.4 Million Dollars after hearing two weeks of testimony. Garvin argued that the Pembroke Pines Doctor was negligent when he failed to notice several recognizable symptoms of tongue cancer. This argument was strengthened when evidence was presented that the client sought a second opinion and this doctor noticed cancer almost immediately. Unfortunately for the client, the cancer had already spread and required extensive surgery to remove the growth.

After this surgery, which required the removal of most of his tongue, the client was left with a difficulty speaking, can’t swallow, and is forced to eat blended food through a tube in his stomach.

After the jury awarded a $6.4 million dollar verdict (which was reduced to $5 million by the Judge), the defense lawyers appealed the case to the 4Th District Court in Palm Beach County. In reviewing the case, the appellate court determined that the money was properly awarded and allowed the verdict to stand.