Limits on Recovery in Malpractice Cases

An issue that transcends state lines is the issue ofdamages caps in (medical) malpractice cases.  Remember that a lawsuit for malpractice generally asks for both economic and non-economic damages.  Economic damages include things like medical bills, lost wages, job loss, and other specific and quantifiable items that resulted as a direct consequence of the malpractice.  Non-economic damages, while no less real, include items that are harder to calculate with a monetary value.  Examples of non-economic damages would be the victim’s pain and suffering, emotional distress, and potentially psychological conditions brought about by the malpractice.  Punitive damages would be another type of non-economic damage as the function of this type of award is to punish, deter, and prevent similar conduct.


The abstract idea of a damages cap is simple.  A damage cap, like a salary cap, is a number that cannot be exceeded.  If a jury returns a verdict higher than the cap, the award is reduced by the judge, using the applicable laws, to the cap amount.  The notion goes that because non-economic damages are so difficult to measure, there is a very real risk of a jury being swayed perhaps by tragic injuries or other factors and awarding a huge and disproportionate amount of non-economic damages.  The thinking goes that a jury figures that the doctor’s insurance will cover the damage award, so they might as well give something to the little guy or strike a blow against the insurance company or both.  Large awards do hurt the system.  Of course, you may argue the system is broken, but that’s beyond the scope of this discussion.  Doctors must get malpractice insurance.  Due to large jury awards, malpractice insurance is already extremely expensive, and is only getting more expensive with time.  The main policy justification for a damages cap is that it will prevent excessive awards that will drive up the costs for everybody.  After all, doctors at some point have to pass their costs on to their patients, just like every other business.  Thus, under this line of reasoning, damage caps actually benefit everyone!


Keep in mind that very few states seek to cap economic damages: after all they are a direct and easily calculable monetary loss from the negligence.  Almost everyone agrees that the victim should get their actual losses back from the jury verdict.  Florida follows the majority of states in not capping economic damages.


Many states, perhaps even the majority of states, cap non-economic damages.  Florida is one of the states that caps non-economic damages.  In fact, Florida has a complicated multi-tier system in place.


Florida distinguishes between “Practitioners” and “Non-practitioners” and generally has lower caps for practitioners who are guilty of malpractice.  Since the legal definition of practitioner covers just about anyone you could imagine that would actually provide you with medical care (doctors, nurses, chiropractors, podiatrists, midwives, dentists, physical therapists, assistants varied and sundry, oncologists, etc.) it’s a little unclear why they even have the non-practitioners category, or even who would be a non-practitioner that you would actually trust to give you medical care.  Perhaps this is to discourage people who pretend to be doctors.  Also keep in mind that anyone who employs or is employed by a practitioner is considered a practitioner: this includes hospitals, medical practice groups, corporations, etc.


At any rate the basic cap figure is half a million dollars ($500,000).  The maximum a plaintiff (victim) can recover from all defendants is $500K.  In the case of multiple plaintiffs (frequently the victim and family members), the maximum they can recover, in total from all defendants is one million dollars ($1M).


Florida lowers this cap for emergency room care.  The maximum award for ER malpractice is $150K per plaintiff, with $300K the max for all plaintiffs taken together.  This probably reflects the reality that ER doctors cannot save everybody, and often do make mistakes, due to being under a lot of time pressure.  Being an ER doctor is in many ways a thankless job, and so this low cap was probably enacted to encourage doctors to work in the ER.


Florida also lowers the cap forMedicaid recipients, it is $300K per plaintiff, and no single practitioner is liable for more than $200K.  There is room for a higher award if plaintiff can prove the practitioner acted “In a wrongful manner.”  It is unclear exactly what that means, but it suggests gross negligence at the very least.


Finally, there are exceptions to the caps for negligence that causes death, persistent vegetative state, or particularly severe non-economic harm coupled with a catastrophic injury.  An example of the last situation might be a surgeon negligently amputating the wrong leg.  In these cases, a single plaintiff may recover up to one million dollars against all practitioners.