How Much is Life Worth? Debate Rages on Medical Malpractice Caps

Posted By The Palm Beach Post | 6-Sep-2009

One of the most emotional moments in a 2007 medical malpractice trial came when Harvey Raphael testified that his life was destroyed after a doctor at Palms West Hospital failed to properly treat him for a heart attack.

A once vigorous 70-something, he said he was no longer able to travel, enjoy simple outings with his wife or keep up with his young daughter, an unexpected blessing of his second marriage.

Jurors never saw him in person. The Wellington man testified on video tape. By the time the case went to trial he was dead, having never recovered from Dr. James Shecter's failure to administer the proper medicine in the emergency room in 2003.

The testimony, along with claims that Shecter's actions constituted gross negligence, was persuasive.

The Palm Beach County jury awarded his widow, Nadine, $10.3 million.

But because of limits the Legislature imposed on how much people can collect for pain and suffering in medical malpractice lawsuits, the judgment was reduced to $781,000.

By the time Nadine Raphael pays roughly $440,000 in medical bills, her attorneys and the tens of thousands of dollars they spent on experts to prove the case, she will get nothing, said her attorney Scott Henratty.

Raphael's lawyers are now fighting to get the widow and her daughter the money jurors said they deserved by persuading an appeals court the caps on jury awards are unconstitutional.

"The problem is that this cap . . . it's such an arbitrary number," said Stephen Malove, who also represents her. "How can you tell someone that their spouse's life is only worth $150,000?"

That's what the Legislature did in 2003 to rein in what they labeled a medical malpractice insurance crisis.

And, according to Shecter's attorney, it worked.

"The legislation that was enacted has had the intended effect," said Boca Raton attorney Michael Mittelmark. "We've seen fewer cases and fewer frivolous cases."

The issue, he said, is bigger than one tragic story.

"The goal is to ensure that everyone gets access to emergency medical care," he said. "If a physician is subject to $10 million jury awards, who's going to practice in the state of Florida?"

The dueling views, which have resurfaced in the ongoing battle over federal health care reform, are key to the court fight that is being watched by groups representing lawyers, doctors and business leaders throughout the state.

To get the Fourth District Court of Appeal to toss the caps, Raphael's attorneys have to persuade it that the medical malpractice crisis was trumped up by a Republican governor and Republican-led legislature that long sided with doctors and insurance companies against what they portrayed as greedy trial lawyers.

Mittelmark, the Florida Medical Association, the Florida Hospital Association and the Florida College of Emergency Physicians scoff at such claims. In court briefs, they all point out that the caps were enacted after a year-long study by a task force of university presidents appointed by then-Gov. Jeb Bush. While it made 60 recommendations of steps that could be taken to reel in medical malpractice insurance rates that it claimed were driving doctors from the state, it said caps were the key.

In a special session, the Legislature capped damages against doctors for pain and suffering at $500,000 or $1 million if a person dies or is left in a vegetative state. For emergency room doctors, who argued that they are forced to make life or death decisions involving patients they don't know or select, the legislature capped damages at $150,000 per person or, if a person had more than one survivor like Raphael, a maximum $300,000.

Six years after the caps were imposed, there is still vast disagreement over whether they worked.

Jeff Scott, general counsel for the Florida Medical Association, said while rates haven't fallen dramatically, they have stabilized. "We're not seeing triple-digit increases in premiums," he said.

South Florida doctors still pay the highest premiums in the nation, according to the most recent survey by the Medical Liability Monitor. A Palm Beach County obstetrician/gynecologist paid about $182,000 for insurance in 2008, a drop of about 20 percent when compared to some 2007 policies. Rates for internists dropped about the same percentage to $40,000, the survey found.

Still, a recent study by Americans for Insurance Reform, concluded that caps, like the ones enacted in Florida, had nothing to do with the drop in insurance rates for doctors. Instead, it found that such increases are cyclical and tied to how much insurance companies earn from investment income.

Russ Sutter, author of an annual report that tracks litigation cost trends, said his research showed that the amount of money awarded in medical malpractice suits has declined but also fewer lawsuits are filed.

"There's ample evidence that caps on non-economic damages have had an impact," said Sutter, a principal for Towers Perrin, a risk management consulting firm.

Before stripping people of their constitutional rights to recover damages for injuries more evidence was needed, Malove argues.

"The neediest malpractice victims are forced to bear the primary financial burden of alleviating the alleged medical malpractice crisis while doctors who cause the most grievous injuries are immunized against the financial consequences of their acts," he wrote.

Some who have been watching the court fight from the sidelines say they doubt the appeals court will dive into the debate by declaring the caps unconstitutional. Malove has offered them an out by arguing that at least Raphael's widow shouldn't have been subject to the caps because her husband was injured before the caps went into effect in 2003 even though the suit wasn't filed until 2005.

But, Malove doubts the appeals court will have the last say.

"Regardless of how they rule," he said, "this is going to the Florida Supreme Court."
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