Florida Supreme Court considers retroactive medical malpractice cap

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On Wednesday, the Florida Supreme Court questioned lawyers in a continuing dispute over a 2003 medical-malpractice law limiting the amount of money a woman can receive because of complications after leg surgery.

The case centers on if damage caps set by lawmakers can apply to the case of Kimberly Ann Miles, a Miami-Dade County woman who was injured prior to the passage of the 2003 law, but filed a lawsuit in January 2006.

Miles and her husband received a jury award of $1.5 million in non-economic damages, which was subsequently reduced to $500,000 due to the law.

Philip Burlington, Miles’ attorney, argued before the Supreme Court that the damage caps should not be retroactive to injuries suffered prior to passage of the law. Doing so, he continued, would violate the right of due process.

However, Dinah Stein, an attorney for physician Daniel Weingrad, the defendant in the case, said non-economic damages — typically awarded for pain and suffering — are “tremendously discretionary on the part of the jury” and retroactive application of limits did not take away Miles’ rights.

Siding with Weingrad was the 3rd District Court of Appeal, but the 4th District Court of Appeal — ruling in a different suit — took another stance on retroactivity.

According to court documents, lawyers for Miles said she was diagnosed with melanoma in 2002 and the tumor was removed. She then went to Weingrad, who was a surgical oncologist; he told her first procedure did not remove all of the melanomas and additional surgery was necessary.

Tests later showed the second procedure was not necessary. Miles suffered complications from the surgery that included hospitalization for infection. Court documents also show she suffered permanent damage.

Peter Schorsch is the President of Extensive Enterprises and is the publisher of some of Florida’s most influential new media websites, including SaintPetersBlog.com, FloridaPolitics.com, ContextFlorida.com, and Sunburn, the morning read of what’s hot in Florida politics. SaintPetersBlog has for three years running been ranked by the Washington Post as the best state-based blog in Florida. In addition to his publishing efforts, Peter is a political consultant to several of the state’s largest governmental affairs and public relations firms. Peter lives in St. Petersburg with his wife, Michelle, and their daughter, Ella.