A lobbyist is a person paid by a special interest group to try and influence policy makers in favor of that special interest group. Most lobbyists know their job and do it very well, and despite the popular perception, most lobbyists adhere to the strict disclosure rules surrounding their profession. However, even ethical lobbyists can sway policy makers into making decisions that may not favor the greater part of their constituency. This is the common criticism leveled at Florida’s medical lobby, especially in the context of medical malpractice laws.
Florida’s medical malpractice laws are some of the strictest and most unforgiving in the nation. The people who can recover, the amount of damages and the amount of time one has to file are all regulated, with very few exceptions on any grounds permitted. If one contrasts this to the laws surrounding other types of negligence or wrongful death, it is evident that there are powerful forces at work.
Can I Recover?
Unlike in some other states, Florida’s medical malpractice regulations clearly show who can recover in the event of a death or injury. If malpractice results in death, the Florida Wrongful Death Act sets it out specifically: a spouse and living children under 25 may recover for lost companionship, pain and suffering, as well as economic support, and any blood relative (or adopted sibling or child) may recover the value of lost support and services if they were financially dependent on the deceased. For an injury, it obviously will be only the patient recovering. Beyond those strictures, there is no recovery for any other person.
This can be incredibly narrow, and has made it so that many families who would in theory be entitled to recover cannot do so. For example, if an elderly widow passes away as a result of medical malpractice, and her children are over the age of 25, then there are no “survivors”. If she had a loving niece or nephew who did not depend on her, but spent a lot of time with her and enjoyed her company, that niece or nephew would not be entitled to any form of recovery, despite suffering a very real and tangible loss. The medical lobby alleges that such narrow recovery terms help to keep insurance premiums down, but at what cost?
How Much Can I Recover?
Florida placed statutory caps on noneconomic damages, meaning that the amount a plaintiff could recover for intangible things like pain and suffering was restricted. Florida also breaks it down even further by having a different cap for ‘medical practitioners’ versus ‘nonpractitioners’; the cap for practitioners is $500,000, while the cap for nonpractitioners is $750,000. This is obviously a result of medical lobbying, to keep the cost of negligence off of medical professionals, when in theory they ought to be liable for a higher amount of damages, given the increased standard of care compared to nonpractitioners. Recently, however, the Florida Supreme Court found that statutory damage caps violated the Equal Protection Clause, overturning them. This aspect of Florida’s law may swing somewhat in favor of the patient, but only time will bear that out.
How Long Do I Have To File?
While Florida’s statute of limitations is actually somewhat lax compared to other states’ when it comes to personal injury claims, the medical malpractice statute is strict. Only two years may pass between the time the injury is discovered (or should have been) and the expiration of the statute. Times vary between two years and 10 for medical malpractice claims (with or without tolling the statute until the act is discovered) throughout the country, so Florida’s statute is at the low end of the spectrum. Also, there are only two enumerated exceptions to that statute, both dealing with minors. If your case does not fall under either of those exceptions, you are out of luck after the two years are up. The medical lobby argues that restricting the statute is simply efficient, that causes of action should not be prolonged, and the statute should never be tolled for any reason. However, this ignores the reality that sometimes life gets in the way for many people.
While obviously most medical professionals are ethical and only want to do what is fair, one can at least argue that the power of the medical lobby in Florida has put things out of balance. Kaire & Heffernan, LLC will do their very best to help put it back where it should be. We stay on top of current information and do our best to get you what you deserve. Contact our Miami office today for a consultation.