A state appellate court has urged the Florida Supreme Court to revisit whether a largely-debunked medical malpractice insurance “crisis” still justifies limiting damages in certain medical malpractice wrongful death lawsuits. The request, posed as a question of great public importance, stems from the Fla. 2nd DCA’s reluctant dismissal of a medical malpractice wrongful death lawsuit filed by the adult children of a woman who died after a missed diagnosis of lung cancer.
The case raises constitutional equal protection concerns because the practical effect is that negligent doctors and healthcare providers cannot be held to account if their patient dies with no minor children or surviving spouse. Adult children (over age 25) of medical malpractice victims who die are not entitled to collect non-economic damages. (Non-economic damages are monetary compensation for intangible losses like as pain and suffering, loss of life enjoyment, loss of consortium, etc.)
This all started some 30 years ago, when Florida lawmakers, heavily courted by insurance industry lobbyists, enacted Florida State Statute 768.21 as a means of remedying “skyrocketing insurance costs” that were reportedly causing doctors to decline performing high-risk procedures and flee the state and the profession, forcing the closure of emergency rooms and other healthcare facilities. In 2000, the Florida Supreme Court cited this law – and the purported “crisis” legislators had used to rationalize it – to prevent the surviving adult children plaintiffs in Mizrahi v. North Miami Medical Center from recovering non-economic damages for their parent’s medical malpractice death. Continue reading