The eternal struggle between good and evil appears in the myths and legends of every culture throughout history. From the halls of Asgard the Norsemen believed their gods waged a never ending war with a race of giants called the Jotnar. In recent years the battle has turned to our civil justice system and the claims of those injured by medical negligence. On one side stand the trial lawyers, claiming the high ground, seeking redress for injured patients; on the other side, the collective medical profession, claiming the rising cost of malpractice claims has handcuffed patient care and created a crisis that has driven many from the profession.
Each side has armed itself with statistics and anecdotal claims to support their respective and irreconcilable positions. In the midst of this are the patients. The injured and their families are seeking what they believe is just compensation for lifelong or life-ending injuries. Spiraling healthcare costs are blamed on the avaricious plaintiffs’ bar and these “greedy” patients. The rhetoric is deafening and confusing to the casual reader. Each side has played a variety of emotion evoking cards.
In many states, including our own, the battle has taken to the halls of the Legislature, each side armed with crafty and expensive lobbyists, in a never ending tug of war over this concept of tort reform. While Connecticut has resisted caps on awards, our legislature has capitulated to the medical lobby by a series of laws that create a procedural labyrinth that injured patients’ lawyers must traverse to file a just claim. Other states, like Florida, have imposed caps on what are called non-economic damages in medical negligence cases.
Traditionally, non-economic damages include pain and suffering, permanent impairment of a bodily function or disfigurement, loss of life and all of its enjoyment. These are the intangibles that allow a jury to measure in dollars and cents these losses, guided only by the vague standard of “fair, just and reasonable compensation.” In 2003 Florida adopted an initiative, urged on by then Governor (and soon to be Presidential candidate) Jeb Bush. It set a cap on wrongful death non-economic damages of $1,000,000.00, citing the existence of a growing crisis in medicine spawned by malpractice claims.
In March of this year it all changed. In a 5-2 decision the Florida Supreme Court declared the legislative cap as arbitrary and violative of the Equal Protection Clause of that state’s Constitution, the concept that all citizens are entitled to equal protection under the laws. Laws that seek to discriminate among classes of people must have a rational basis for that discrimination to be upheld. In this instance the Court found that to be lacking.
In two separate concurring opinions among the five justices who rejected the cap there were strong statements. Justice Pariente wrote: “There is no evidence of a continuing medical malpractice crisis that would justify the arbitrary reduction of survivors’ non-economic damages in wrongful death cases based on the number of survivors,”
Justice Lewis, writing for the other members of the majority was equally as critical of the medical lobby’s claims: “At the present time, the cap on non-economic damages serves no purpose other than to arbitrarily punish the most grievously injured or their surviving family members . . . . Moreover, it has never been demonstrated that there was a proper predicate for imposing the burden of supporting the Florida legislative scheme upon the shoulders of the persons and families who have been most severely injured and died as a result of medical negligence.”