The insurance industry has argued for decades that malpractice damage caps will reduce medical malpractice premiums. However, a recent Florida Supreme Court decision, citing different decisions in Texas and Oklahoma, has actually found caps don't reduce premiums for physicians and that more importantly from a legal stand point, that they are unconstitutional. In the case, " Estate of Michelle Evette McCall, et al., vs United States of America", Florida Supreme Court No. SC11-1148, published March 13, 2014, we get a look at the State Supreme Court of Florida's detail examination of how liability caps came to be put into law, the failed thinking behind the process and the constitutional arguments behind their decision. Copy of decision available here.
On this edition of Speaking of Justice we are joined by noted trial lawyer Richard Levin of Chicago, who states that caps on malpractice claims arbitrarily replace what a jury is charged with determining, which is listening to the facts in a case, weighing evidence and deciding both liability and monetary damages that need to be paid in cases where defendants are at fault. By statutorily eliminating any amount of damages in excess of a fixed limit and giving it an arbitrary value, without considering the victim's unique circumstances, the injured party is effectively being stripped of their constitutionally protected rights, says attorney Richard Levin, who is a partner in Levin Riback Law Group in Chicago, Illinois. Furthermore, although the Florida Supreme Court didn't specifically decide this case based on the fact that the plaintiffs didn't get a right to a fair jury trial, Attorney Levin says that is in fact what occurs in almost every other damage cap case around the country and consequently what makes these statutes is so fundamentally unfair to injury victims.
Attorney Levin further opined that he doesn't think caps work and for the people who actually get one million dollars or more, that "You don't want their life under any circumstances." These are victims who are badly burned or dismembered and have the worst living circumstances possible. Unfortunately, many people think that if some tragically injured person suddenly gets millions of dollars, that somehow their life has become as it was before the accident or malpractice occurred. "Providing a substantial economic recovery is the only way to give these people a form of justice", Levin says, and these funds in no way make plaintiffs rich, an "absolute misconception" that leads to bad law and legislation such as damage caps. He added that it's unfair and betrays a lack of understanding on the way people perceive the system works and that caps have been sold to legislatures as preventing people who aren't legitimately hurt from receiving exorbitant amount of money and when in fact the judicial system almost never allows that to occur.
This ruling, which only has an effect in Florida, will probably increase the amount of filings now, Levin believes, as will give people with serious injuries access to the court through greater interest by trial lawyers in pursuing these cases. Prior to this ruling, malpractice cases were hard to prosecute if they were capped because the cases are extremely expensive to pursue and with a capped value, only a certain amount of economic recover can be realized. The out of pocket costs for attorneys makes it virtually impossible to bring cases on behalf of people because they end up upside-down on their case, Levin says.
Richard Levin is an attorney with the Levin Riback Law Group in Chicago, Illinois and is considered one of the leading trial lawyers both in Illinois and through out the country. We appreciate his joining us at the Legal Broadcast Network, a network providing online, on-demand legal news and video content. The Legal Broadcast Network is a featured network of Sequence Media Group.