Medical Malpractice Damages

Every trial lawyer worth his or her salt scrutinizes every case that is presented by a potential client.  This is especially so in a patient claiming medical malpractice by a doctor or other health professional. The fact is, doctors are highly trained professionals and are entitled to, and protected by under the law, by a large amount of deference and discretion in exercising their medical judgment.

Unless a doctor or other healthcare professional breaches the applicable standard of care, which results in catastrophic injury or death, then generally a case of medical malpractice is often not worth pursuing in civil court.

These cases are extremely expensive to prosecute, and doctors generally prevail in 3 out of 4 cases brought to trial, so cases involving a negligence causing little damage, if any, other than a "near-miss" or an "almost serious injury" or "almost died" scenario are outweighed by the cost of prosecuting them.

Medical Malpractice Immunity

Florida is a State which imposes strict limits on the amount of money recoverable by victims of medical negligence. These caps went into effect on September 15, 2003. Florida has capped damages available to patients injured by medical malpractice.

For your convenience, here is the anti-patient, pro-insurance company, statute which your Florida Legislature enacted and signed by Gov. Jeb Bush:

766.118  Determination of non economic damages.--
(1)        DEFINITIONS.--As used in this section, the term:

(a)        Catastrophic injury" means a permanent impairment constituted by:

1.         Spinal cord injury involving severe paralysis of an arm, a leg, or the trunk;

2.         Amputation of an arm, a hand, a foot, or a leg involving the effective loss of
           use of that appendage;

3.         Severe brain or closed-head injury as evidenced by:

a.         Severe sensory or motor disturbances;

b.         Severe communication disturbances;

c.         Severe complex integrated disturbances of cerebral function;

d.         Severe episodic neurological disorders; or

e.         Other severe brain and closed-head injury conditions at least as severe in
           nature as any condition provided in sub-subparagraphs a.-d.;

4.         Second-degree or third-degree burns of 25 percent or more of the total
            body surface or third-degree burns of 5 percent or more to the face and
            hands;

5.         Blindness, defined as a complete and total loss of vision; or

6.         Loss of reproductive organs which results in an inability to procreate.

(b)        "Noneconomic damages" means noneconomic damages as defined in s.
             766.202(8).

(c)        "Practitioner" means any person licensed under chapter 458, chapter 459, chapter 460, chapter 461, chapter 462, chapter 463, chapter 466, chapter 467, or chapter 486 or certified under s. 464.012.. "Practitioner" also means any association, corporation, firm, partnership, or other business entity under which such practitioner practices or any employee of such practitioner or entity acting in the scope of his or her employment. For the purpose of determining the limitations on noneconomic damages set forth in this section, the term "practitioner" includes any person or entity for whom a practitioner is vicariously liable and any person or entity whose liability is based solely on such person or entity being vicariously liable for the actions of a practitioner.

(2)  LIMITATION ON NONECONOMIC DAMAGES FOR NEGLIGENCE OF PRACTITIONERS.--

(a)        With respect to a cause of action for personal injury or wrongful death arising from medical negligence of practitioners, regardless of the number of such practitioner defendants, noneconomic damages shall not exceed $500,000 per claimant. No practitioner shall be liable for more than $500,000 in noneconomic damages, regardless of the number of claimants.

(b)        Notwithstanding paragraph (a), if the negligence resulted in a permanent vegetative state or death, the total noneconomic damages recoverable from all practitioners, regardless of the number of claimants, under this paragraph shall not exceed $1 million. In cases that do not involve death or permanent vegetative state, the patient injured by medical negligence may recover noneconomic damages not to exceed $1 million if:

1.         The trial court determines that a manifest injustice would occur unless increased noneconomic damages are awarded, based on a finding that because of the special circumstances of the case, the noneconomic harm sustained by the injured patient was particularly severe; and

2.         The trier of fact determines that the defendant's negligence caused a catastrophic injury to the patient.

(c)        The total noneconomic damages recoverable by all claimants from all practitioner defendants under this subsection shall not exceed $1 million in the aggregate.

(3)  LIMITATION ON NONECONOMIC DAMAGES FOR NEGLIGENCE OF NONPRACTITIONER DEFENDANTS. --

(a)        With respect to a cause of action for personal injury or wrongful death arising from medical negligence of nonpractitioners, regardless of the number of such nonpractitioner defendants, noneconomic damages shall not exceed $750,000 per claimant.

(b)        Notwithstanding paragraph (a), if the negligence resulted in a permanent vegetative state or death, the total noneconomic damages recoverable by such claimant from all nonpractitioner defendants under this paragraph shall not exceed $1.5 million. The patient injured by medical negligence of a nonpractitioner defendant may recover noneconomic damages not to exceed $1.5 million if:

1.         The trial court determines that a manifest injustice would occur unless increased noneconomic damages are awarded, based on a finding that because of the special circumstances of the case, the noneconomic harm sustained by the injured patient was particularly severe; and

2.         The trier of fact determines that the defendant's negligence caused a catastrophic injury to the patient.

(c)        Nonpractitioner defendants are subject to the cap on noneconomic damages provided in this subsection regardless of the theory of liability, including vicarious liability.

(d)        The total noneconomic damages recoverable by all claimants from all nonpractitioner defendants under this subsection shall not exceed $1.5 million in the aggregate.

(4)  LIMITATION ON NONECONOMIC DAMAGES FOR NEGLIGENCE OF PRACTITIONERS PROVIDING EMERGENCY SERVICES AND CARE.--Notwithstanding subsections (2) and (3), with respect to a cause of action for personal injury or wrongful death arising from medical negligence of practitioners providing emergency services and care, as defined in s. 395.002(9), or providing services as provided in s.401.265, or providing services pursuant to obligations imposed by 42 U.S.C. s. 1395dd to persons with whom the practitioner does not have a then-existing health care patient-practitioner relationship for that medical condition:

(a)        Regardless of the number of such practitioner defendants, noneconomic damages shall not exceed $150,000 per claimant.

(b)        Notwithstanding paragraph (a), the total noneconomic damages recoverable by all claimants from all such practitioners shall not exceed $300,000.
The limitation provided by this subsection applies only to noneconomic damages awarded as a result of any act or omission of providing medical care or treatment, including diagnosis that occurs prior to the time the patient is stabilized and is capable of receiving medical treatment as a nonemergency patient, unless surgery is required as a result of the emergency within a reasonable time after the patient is stabilized, in which case the limitation provided by this subsection applies to any act or omission of providing medical care or treatment which occurs prior to the stabilization of the patient following the surgery.

(5)  LIMITATION ON NONECONOMIC DAMAGES FOR NEGLIGENCE OF NONPRACTITIONER DEFENDANTS PROVIDING EMERGENCY SERVICES AND CARE.-- Notwithstanding subsections (2) and (3), with respect to a cause of action for personal injury or wrongful death arising from medical negligence of defendants other than practitioners providing emergency services and care pursuant to obligations imposed by s. 395.1041or s. 401.45, or obligations imposed by 42 U.S.C. s. 1395dd to persons with whom the practitioner does not have a then-existing health care patient-practitioner relationship for that medical condition:

(a)        Regardless of the number of such nonpractitioner defendants, noneconomic damages shall not exceed $750,000 per claimant.

(b)        Notwithstanding paragraph (a), the total noneconomic damages recoverable by all claimants from all such nonpractitioner defendants shall not exceed $1.5 million.

(c)        Nonpractitioner defendants may receive a full setoff for payments made by practitioner defendants.
The limitation provided by this subsection applies only to noneconomic damages awarded as a result of any act or omission of providing medical care or treatment, including diagnosis that occurs prior to the time the patient is stabilized and is capable of receiving medical treatment as a nonemergency patient, unless surgery is required as a result of the emergency within a reasonable time after the patient is stabilized, in which case the limitation provided by this subsection applies to any act or omission of providing medical care or treatment which occurs prior to the stabilization of the patient following the surgery.

(6) SETOFF.--In any case in which the jury verdict for noneconomic damages exceeds the limits established by this section, the trial court shall reduce the award for noneconomic damages within the same category of defendants in accordance with this section after making any reduction for comparative fault as required by s.768.81 but before application of a setoff in accordance with ss. 46.015 and 768.041.. In the event of a prior settlement or settlements involving one or more defendants subject to the limitations of the same subsection applicable to a defendant remaining at trial, the court shall make such reductions within the same category of defendants as are necessary to ensure that the total amount of noneconomic damages recovered by the claimant does not exceed the aggregate limit established by the applicable subsection. This subsection is not intended to change current law relating to the setoff of economic damages.

(7) ACTIONS GOVERNED BY SOVEREIGN IMMUNITY LAW.-- This section shall not apply to actions governed by s. 768.28..

Emergency room doctors are protected in Florida under the Good Samaritan law, and a patient must show that the ER physician acted in “reckless disregard” – a higher standard of proof -- instead of negligence.  Even if proven, Florida has caps on damages for ER doctors of a minimal $150,000 pain and suffering damage.

Medical Malpractice Attorney

As you can see, despite the numerous challenges and hurdles already facing Florida patients in proving their medical malpractice case, Florida law has made that burden even harder by limiting the pain and suffering damages which can be recovered by seriously injured patients.  If you or your family member have been catastrophically injured, or a loved one has been the victim of wrongful death, then our medical malpractice counsel for a complimentary consultation.

The turth is, unless the injury is catastrophic or the malpractice resulted in the untimely death of a loved one, we simply cannot consider handling the matter.

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We provide aggressive, prompt, and ethical advocacy on behalf of individuals and families who have suffered serious personal injury, accident injury, and wrongful death. Contact us today.