High Court Upholds $10.3 Million Award

Posted By The Palm Beach Post | 10-Nov-2011

Since her husband’s heart was irrevocably damaged in 2003 when he wasn’t given critical medicine at Palms West Hospital, former Wellington resident Nadine Raphael has been waiting for justice.

She got it this week when the Florida Supreme Court let stand a $10.0 million verdict despite arguments that it should be reduced to less than $1 million because of caps the Florida Legislature placed on jury awards in medical malpractice cases.

“She’s ecstatic,” attorney Stephen Malove said of Raphael’s reaction to the long-awaited decision.

The Supreme Court didn’t specifically rule on Raphael’s case. Instead, it referred to an unrelated decision it made in July when it once again struck down the legislature’s decision to make a law apply retroactively.

One of the main issues in Raphael’s case was whether the caps on damages awarded for pain and suffering applied to Harvey Raphael’s death by medical mistake.

Attorneys representing emergency room physician Dr. James Shecter argues they did because the lawsuit was filed two years after the legislature imposed the caps in 2003, claiming they would rein in skyrocketing medical malpractice insurance rates.

Malove countered that the key wasn’t when the lawsuit was filed but when Harvey Raphael was injured.

Shecter failed to give him the anti-clotting drug Retavase to reduce the impact of a heart attack in April 2003, three months before the caps went into effect.

The 4th District Court of Appeal in 2009 upheld the award, saying, “It is therefore well settled that retrospective laws are generally unjust.” And the high court in the unrelated case, reiterated that sentiment.

Malove had hoped that the Supreme Court would use the case to overturn the caps.

While it stopped far short of that, he said its blanket acceptance of the lower court ruling should hearten defense attorneys and victims of medical malpractice that the caps are on life support.

“This is very positive for throwing out the caps completely,” he said.
The court will hear oral arguments in February in a case challenging the law that caps pain and suffering at $150,000 per person and $300,000 total.

As for Nadine Raphael, the decision doesn’t mean she will automatically get a check for $10.3 million. Attorney Michael Mittlemark, who represents Shecter, said the doctor has a $1 million limit on his insurance policy.

Malove said he will now file a bad faith claim against Shecter’s insurer, arguing that it is liable for the full amount because it should have settled the claim before the case went to trial.
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