Let’s go down memory lane.

As the new millennium dawned, Dade and Broward Counties were in the midst of a professional liability crisis. Insurance was not only unavailable. It was unaffordable.

Neurosurgeons were being asked to pay $250k/yr in coverage.

Many policies topped out at $250k in benefits. But, hell, they’d cover you for up to three claims a year plus defense costs.

Doctors were leaving.

Hospitals started allowing physicians to practice without any coverage, virtually unheard of anywhere else in the country.

And modest tort reforms were enacted.

A $500k cap on pain and suffering was imposed. If the patient suffered death or persistent vegetative state, a $1M cap on pain and suffering (more accurately called non-economic damages) applied.

Insurers returned to the state.

Premiums went down. The market stabilized.

In 2007, Susan Kalitan underwent outpatient carpal tunnel surgery. During intubation, her esophagus was injured. She complained of pain, but was sent home after potential cardiac problem was ruled out. The next morning, a neighbor found her unresponsive. She was rushed to the emergency department and taken to the operating room quickly to repair the tear. The patient’s next memory was waking up several weeks later. She had numerous surgeries, a long and extensive rehabilitation, and still has residual symptoms.

We can all agree this was a horrible outcome from a routine carpal tunnel surgery.

The patient sued.

Jury awarded $4.7 in total damages. That included $2M for past pain and suffering and an additional $2M for future pain and suffering.

The noneconomic damages award of $4 million was reduced by close to $2 million by the “[l]imitation on noneconomic damages for negligence of practitioners” under section 766.118(2) and “[l]imitation on noneconomic damages for negligence of nonpractitioner defendants” under section 766.118(3), Florida Statutes (2011). Furthermore, the noneconomic damages award was further reduced by about $1.3 million, as the Hospital’s share of liability was capped at $100,000 by virtue of the hospital’s status as a sovereign entity. § 768.28, Fla. Stat. (2007).

This was a perfect storm. A patient with such serious injuries was being asked to stomach $100k total in non-economic injuries. June 2017, the Florida Supreme Court weighed in.

They ruled the caps on non-economic damages to be unconstitutional.

They concluded that whatever rational bases for tort reforms that might have been relevant over a decade ago, they no longer apply. That crisis has long been over. And it makes little sense for severely injured patients to bear the primary burden when the benefit to the rest of society is so modest. My paraphrase of the Court – not my opinion.

I do not know where this will go. If history is any guide, I expect average payouts of cases to go up. I expect more cases to be filed. I expect premiums to go up. And the cycle may start fresh. We’ll see.

I admit I have a great deal of sympathy for individual patients such as Susan Kalitan. I just do not think it is reasonable to balance the books of her remedy on the backs of a few (namely, physicians) as opposed to amortizing it over the broader range of society.

What do you think?

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