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Miami Judge Declares Medical Malpractice Damages Cap Unconstitutional

[caption id="attachment_24363" align="aligncenter" width="620"] Ted S. Forman of Forman Law Office in Delray Beach. Courtesy photo[/caption] Miami-Dade Circuit Judge Jose M. Rodriguez on June 28 denied a defendant's motion to reduce a jury verdict from $500,000 to $350,000. The judge ruled against Dr. Taylor Poole, sued by former patient Deborah DeFranko and her husband, Myron Siegel. Poole had cited sections 766.207 and 766.209 of the Florida medical malpractice statute, which limit noneconomic damages, but the judge found the provisions did not hold up to current-day scrutiny. "These laws provide that when a plaintiff succeeds at trial but had previously rejected a defendant's offer to voluntarily arbitrate the claim, the plaintiff's noneconomic damages are capped at $350,000," the order reads. But Rodriguez refused to implement the 30-year-old cap, labeling it as outdated and claiming that it violates the equal protection clause of the Constitution by allowing compensation to be reduced without regard to the severity of the injury. This county court ruling may now prompt higher courts to consider throwing out the statute, as they did with medical malpractice statute section 766.118. In 2014, the Florida Supreme Court abolished a law limiting noneconomic damages in wrongful death cases, citing the Estate of McCall v. United States. And in an extension of that ruling, after the North Broward Hospital District v. Kalitan case in 2017, it struck down the second provision of the law limiting noneconomic damages, deciding that the cap of $500,000 was unconstitutional for all cases, not just death cases. [caption id="attachment_24419" align="alignleft" width="245"] Miami-Dade Circuit Judge Jose M. Rodriguez. Photo: A. Holt/ALM[/caption] "These statutes thus epitomize 'the classic case of heads I win, tails you lose,'" Rodriguez wrote. "Defendants, after all, are the potentially/actually negligent party and thus inherently incentivized to use this power, especially in cases involving large liability. The more devastatingly injured plaintiff is then left with no recourse." Plaintiff counsel, Ted S. Forman of the Forman Law Offices in Delray Beach, agreed. "When you're talking about these pain and suffering damages, it really affects the most vulnerable," he said. "We're talking about children, we're talking about the elderly. Those are the ones that are most likely to be affected because they're working, and they're not able to earn economic damages." And that's an important implication to consider, Forman said. On Feb. 27, a jury decided that DeFranko and Siegel were collectively entitled to $500,000 in noneconomic damages. It awarded DeFranko $450,000 for pain and suffering caused by failed cataract surgery, while Siegel got $50,000 for suffering caused by the "loss of services, comfort, society and attention" from DeFranko. However, since DeFranko and Siegel had rejected Poole's offer to voluntarily arbitrate the case back in June 2016, Poole moved to amend the jury's judgment so that it conformed with the lower limits under the law. "If the defense offers such a thing, they're kind of boxing the plaintiffs into a limitation on the damages for pain and suffering, or noneconomic damages," said Forman, who teamed with attorney Sharon "Minnie" Urbanek to represent the plaintiffs. Plus, they suggested the statute hadn't aged well over the past 30 years, when $350,000 had considerably more buying power than it does today. "It's outdated in that respect," Forman said. And the judge seemed to agree, finding that "$350,000 in 1988 equates to nearly $750,000 in 2018." This ruling is the latest in a long line of decisions by the Florida Supreme Court to write off medical malpractice cases as unconstitutional. "It's a very encouraging sign to Floridians who are victims of medical malpractice, because it's a sign that these outdated laws that have wrongfully subjugated the people of Florida for, in this case, 30 years, are finally starting to come down," Forman said. According to the original complaint filed in June 2016, Poole was careless, negligent and in breach of his duty when he improperly planted a toric lens in DeFranko's right eye during cataract surgery, then failed to recognize his mistake. DeFranko became Poole's patient in May 2014, at which point he diagnosed her with cataracts and scheduled two surgeries: one on her left eye, which was performed on July 10, 2014, and the second on her right eye, performed on Aug. 7, 2014. After Poole had placed toric lenses in both eyes, DeFranko immediately began suffering from blurred vision, chronic dry eyes, headaches and ocular pains, according to the complaint. In attempts to correct the blurred vision, Poole performed a YAG laser capsulotomy in DeFranko's right eye in February 2015, but was unsuccessful. Months later, in September 2015, "it was discovered that Dr. Poole improperly implanted the toric lens approximately 90 degrees off the intended axis in Mrs. DeFranko's right eye," the complaint said. DeFranko tried to fix this in January 2016, when she underwent LASIK on her right eye by Dr. Shareen Greenbaum of the Hollywood Eye Institute. The procedure was "partially successful," but DeFranko now relies on reading glasses and continues to experience blurred vision, chronic dry eyes, headaches and ocular pain, according to court pleadings. But for now, the plaintiffs are celebrating Rodriguez's findings. "They are extremely happy about the court's ruling, and we remain cautiously optimistic going forward, depending on what happens next," Forman said. As the case remains in play, DeFranko and Siegel await Poole's next move. Defense counsel hinted at ongoing litigation. "We are not happy with the ultimate ruling, and we are going to discuss this ruling with appellate counsel," said Poole's attorney, John David Kelner of Kelner Law Offices in Miami. Poole has the option to file an appeal by July 28. Read the court order: [falcon-embed src="embed_1"]