Jeffrey P. Gale, P.A. // Abuse of Power

Republicans control all phases of lawmaking at the state level in Florida. This has been the case since the election of Jeb Bush as governor in 1998, complementing their majorities in the Florida House and Senate.

Presently, they rule by supermajority in the Legislature, meaning they don’t have to negotiate with members of other parties to pass legislation. With the encouragement of current governor Ron DeSantis, they have been wont to stoke the flames of culture wars by enacting draconian laws such as those banning books and hurting the LGBTQ community.

While their culture war laws get the headlines, Republicans also work in quieter ways to undermine the fabric of American society. One of their favorite tricks is to weaken the rights of individuals to seek redress within the legal system.

Last legislative session they passed bills reducing the statute of limitations in personal injury cases from four years to two years and barring all personal injury claims where the injured party is more than 50% at fault, even just 51% (768.81(6)).

This latter measure may appear reasonable on its face to the uninitiated, but it is not. In years past damage awards were apportioned by percentage of fault through a legal principle known as comparative fault. For example, if a person who was 51% at fault was awarded $1,000,000 in damages by a jury, the court would reduce that person’s share of the award to $490,000. Under the legislation passed in 2023, that same person would walk away with nothing even if another party was 49% at fault.

During this year’s legislative session, which is currently underway, Republicans are seeking to establish arbitrary damage caps in medical malpractice cases. Regardless of what a jury may decide a case is worth after receiving and deliberating the evidence, judges will be forced to reduce verdicts exceeding the cap. The proposed legislation is CS/SB 248: Medical Negligence.

It matters not to this crop of  Republican legislators that a similar damage cap statute was ruled unconstitutional in the past by the Florida Supreme Court. Cynically, they are expecting the current Florida Supreme Court, made up mostly of Rick Scott and Ron DeSantis nominees, to ignore precedent and uphold the new legislation. Sadly, they have a recent example to go by to believe that a Republican majority court will reverse the decision of its predecessor members. The example is Dobbs v. Jackson Women’s Health Organization, the 2022 United States Supreme Court abortion decision which overruled 50 years of precedent.

McCall v. United States of America, 134 So. 3d 894 (Fla. 2014), was a case involving a military veteran whose death was caused by medical negligence. The jury’s award was reduced to comply with the damage caps. The Florida Supreme Court decided that the damage caps were unconstitutional.

Then, as now, the Florida Legislature attempted to justify the cap on noneconomic damages by claiming that “Florida is in the midst of a medical malpractice insurance crisis of unprecedented magnitude.” Ch.2003-416, § 1, Laws of Fla., at 4035.

As explained by the court majority, “the Legislature relied heavily on a report prepared by the Governor’s Select Task Force on Healthcare Professional Liability Insurance (Task Force), which concluded that ‘actual and potential jury awards of noneconomic damages (such as pain and suffering) are a key factor (perhaps the most important factor) behind the unavailability and un-affordability of medical malpractice insurance in Florida.’ Report of Governor’s Select Task Force on Healthcare Professional Liability Insurance (Task Force Report) (Jan. 29, 2003), at xvii.” McCall at 906.

Problem is, the Task Force Report did not hold water. As Justice Lewis explains:

Our consideration of the factors and circumstances involved demonstrates that the conclusions reached by the Florida Legislature as to the existence of a medical malpractice crisis are not fully supported by available data. Instead, the alleged interest of health care being unavailable is completely undermined by authoritative government reports. Those government reports have indicated that the numbers of physicians in both metropolitan and non-metropolitan areas have increased. For example, in a 2003 report, the United States General Accounting Office found that from 1991 to 2001, Florida’s physician supply per 100,000 people grew from 214 to 237 in metropolitan areas and from 98 to 117 in nonmetropolitan areas, or percentage increases of 10.7 and 19, respectively. Physician Workforce: Physician Supply Increased in Metropolitan and Nonmetropolitan Areas but Geographic Disparities Persisted, No. GAO-04-124, (Oct. 31, 2003), at 23, available at http://www.gao.gov/new.items/d04124.pdf. Thus, during this purported crisis, the numbers of physicians in Florida were actually increasing, not decreasing.

Proponents of the legislation now on the table don’t even claim to have a study supporting their position. Despite rationale arguments against the legislation and a stream of sworn testimony from medical malpractice victims, Republicans seem determined to enact the legislation. With super-majorities in both Chambers, and the support of Governor Ron DeSantis, nothing can stop them.

Groups like the Florida Justice Association have gone to the mats fighting the legislation. Florida residents can contact their representatives in Tallahassee to express dispeasure. Follow these links for politician contact information:

• House: https://www.myfloridahouse.gov/representatives
• Senate: https://m.flsenate.gov/senators/list
• Governor: https://www.flgov.com/email-the-governor/

While not perfect, the jury system is the best apparatus for resolving disputed civil matters. Strict rules of evidence and sensible guidelines in the form of jury instructions, typically lead to the correct result. Appellate courts are there to scrutinize the process and the results. It’s a beautiful thing. The system does not need arbitrary damage caps, set by politicians sitting in Tallahassee sometimes wrongly influenced by self-interested powerful forces, to subvert the collective wisdom of “We the People.”

********************