MAJOR MED-MAL CASE TO BE HEARD BY SUPREME COURT THURSDAY

By JIM SAUNDERS
THE NEWS SERVICE OF FLORIDA

THE CAPITAL, TALLAHASSEE -- Suffering from a serious condition known as preeclampsia, 20-year-old Michelle McCall went to a Fort Walton Beach hospital in February 2006 to give birth to a son.

Within days, McCall died from complications related to severe bleeding. And now, six years later, the Panhandle woman is at the center of a potentially landmark legal fight about Florida's medical-malpractice system.

The Florida Supreme Court will hear arguments Thursday in a case filed by McCall's estate that challenges limits on non-economic damages in malpractice cases. Those limits were the centerpiece of a 2003 malpractice overhaul that touched off one of the Capitol's biggest political fights in recent years.

The case is being closely watched, with numerous medical and legal groups filing briefs about whether the Supreme Court should uphold the damage caps.

"I think this is a very important case that will have a direct impact on our health care delivery system in Florida,'' said William Large, who was general counsel of the Florida Department of Health in 2003 and now is president of the Florida Justice Reform Institute, which backs lawsuit limits. "It's an important case. It's a very important case.''

The Florida Justice Association trial-lawyers group led the lobbying fight against damage caps in 2003 and contends they are unconstitutional. On its website, the group makes clear the stakes in the case.

"The legal staff at the FJA has always believed that our best chance at overturning this draconian law is before the Florida Supreme Court,'' a briefing on the website says.

With the backing of then-Gov. Jeb Bush, doctors, hospitals and insurers pushed in 2003 for major changes in the malpractice system, including a $250,000 limit on non-economic damages. They contended that malpractice lawsuits caused skyrocketing insurance premiums, which led doctors to practice elsewhere or to stop providing high-risk services.

The proposal touched off months of lobbying and special legislative sessions, with the Senate refusing to go along with a $250,000 cap. But a compromise bill included limits of $500,000 or $1 million, depending on the circumstances and the number of people involved in a case.

The McCall case is the first test of the limits to reach the Supreme Court. While her death occurred at Fort Walton Beach Medical Center, McCall's estate sued the federal government because she was part of a military family and was treated by Air Force medical staff.

A federal judge sided with the family's arguments that McCall had not received proper care and found that her survivors should receive $2 million in non-economic damages. But because of the state law limiting such damages, the award was reduced to $1 million.

The 11th U.S. Circuit Court of Appeals in Atlanta ruled that the damage limits did not violate the federal constitution, but it said the Florida Supreme Court should consider state constitutional issues.

In a brief filed last year with the Supreme Court, the McCall estate's attorneys argued that the damage limits infringe on the rights of severely injured people and also questioned the Legislature's justification that the caps were needed because of a malpractice insurance "crisis.'' In part, the brief contends the 2003 law violates the constitutional right of access to the courts.

"The Legislature has broad powers and an array of options to make Florida more financially attractive to physicians,'' the brief says. "If the Legislature's objective was to lower medical malpractice premiums, less restrictive means, such as regulating those premiums, which do not adversely affect anyone's constitutional rights, are readily available.''

But federal attorneys argued in a brief that the Legislature had justification for imposing the limits.

"Fundamentally … plaintiffs' arguments reflect their disagreement with the empirical and legislative judgments made by the Florida Legislature in enacting the damage caps at issue,'' the brief says. "But plaintiffs have presented no evidence that could plausibly call into question those judgments, relying instead on law review articles and other assorted studies.''