Tag: Florida

Medical Malpractice Decision of the Year: Florida Supreme Court voids the $1M cap on noneconomic damages for a patient’s wrongful death

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By Alex Stein

We are just in mid-March, but yesterday’s decision of the Florida Supreme Court, McCall v. United States, — So.3d —-, 2014 WL 959180 (Fla. 2014), is – and will likely remain – the most important medical malpractice decision of 2014.

The case at bar presented a particularly egregious example of medical malpractice: a young woman died after delivering a healthy baby as a result of preventable loss of blood. This tragic event took place at an air-force base hospital. The victim’s survivors therefore filed their medical malpractice suit with a federal court pursuant to the Federal Tort Claims Act (FTCA). Under FTCA, the suit was governed by Florida law. Following bench trial, the United States District Court found the United States liable, but applied Florida’s $1,000,000 cap on wrongful-death noneconomic damages recoverable for medical malpractice. On appeal, the victim’s survivors challenged the cap’s constitutionality. The Eleventh Circuit affirmed the District Court’s decision, but certified questions of Florida constitutional law with regard to the cap.

The Florida Supreme Court rephrased the certified questions as follows:
Does the statutory cap on wrongful death noneconomic damages, Fla. Stat. § 766.118, violate the right to equal protection under Article I, Section 2 of the Florida Constitution?

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The Battle of Privileges

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By Alex Stein

When a patient files a malpractice suit against a doctor, she waives the evidentiary privilege that protects the information pertaining to her treatment by the doctor. This information extends to all communications between the patient and the doctor, the patient’s medical history, diagnosis, treatment, and medical records. The patient’s waiver of the privilege is not absolute. Rather, it relates only to information and documents needed for the doctor’s defense. The same principle applies to the patient’s treating physician whom she did not sue. The defendant is entitled to subpoena this nonparty physician and obtain from her information and documents relevant to his defense.

To realize this entitlement, the defendant’s attorney needs to interview the nonparty physician before trial. The patient’s attorney demands to be present at that interview to protect her client’s privilege by appropriately limiting the physician’s questioning by the defendant’s attorney. The defendant’s attorney counters this demand by invoking the attorney-client privilege and its “work product” extension.

This battle of privileges has no easy solution. Read More


Uncertain Future for the Same-Specialty Law in Florida

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By Alex Stein

Florida statute, § 766.102(12) (2012), lays down a strict same-specialty requirement for expert witnesses supporting medical malpractice allegations. Specifically, it provides that “If a physician licensed under chapter 458 or chapter 459 or a dentist licensed under chapter 466 is the party against whom, or on whose behalf, expert testimony about the prevailing professional standard of care is offered, the expert witness must be licensed under chapter 458, chapter 459, or chapter 466 or possess a valid expert witness certificate issued under s. 458.3175, s. 459.0066, or s. 466.005.”

The Florida Bar Code and Rules of Evidence Committee recommended the Florida Supreme Court to adopt this statutory provision “as a rule of procedure to the extent that it is procedural.”

The Board of Governors recommended the Court to reject the Committee’s proposal “on the grounds that the provision is unconstitutional, will have a chilling effect on the ability to obtain expert witnesses, and is prejudicial to the administration of justice.”

The Court declined to follow the Committee’s recommendation due to the concerns raised. See here. The Court had another good reason for declining to adopt this recommendation: the provision in question is substantive rather than procedural. See here.