A Miami couple's suit on behalf of their daughter claims the limit discriminates against the most severely injured.
By Associated Press
Published August 31, 2004
MIAMI - Florida's caps on how much victims can collect in medical malpractice lawsuits are unfair and unconstitutional, a couple said Monday while filing a lawsuit that will serve as the first test of the new limits.
The law enacted last year limits a doctor's liability for noneconomic damages, such as for pain and suffering, to $500,000 in most medical malpractice cases. The law is aimed at controlling skyrocketing insurance rates for physicians.
But caps discriminate against the patients who are injured most by medical mistakes by limiting their compensation, said Neal Roth, a lawyer representing Federico and Sonia Berges, who allege that two doctors misdiagnosed their daughter's illness.
"What you are effectively doing is stripping a person of their constitutional right of access to the courts," Roth said.
A spokesman for the doctors named in the suit, Miami physicians Belleitha Lambkin-Alexander and Rozalyn Paschal, said he hadn't seen the complaint and didn't immediately have a comment.
But Lisette Gonzalez Mariner, a spokeswoman for the Florida Medical Association, which pushed for capping malpractice lawsuit damages, defended the new law.
While malpractice rates have continued to go up since its passage, the increase has been smaller than it otherwise would have been, Gonzalez Mariner said.
She said the organization expected a challenge to the new law and said trial lawyers need the prospect of large damages to make a living.
"This is their bread and butter," she said.
Insurance companies say rising damage awards have caused them to dramatically raise rates and doctors, particularly in high-risk specialties, have cut back their practices or quit.
Apart from having the limit on damages declared unconstitutional, the lawsuit filed Monday in state court in Miami seeks unspecified damages.
Doctors had treated the Berges' daughter Mariaelena for a cough and cold, but her symptoms got worse, the suit alleges. Her mother later took her to the hospital for continued symptoms and she eventually was seen by specialists who diagnosed Stevens Johnson Syndrome, a reaction to medication that can cause severe rashes, fever and swelling around the eyes that, if left untreated, can be fatal.
Mariaelena also suffered respiratory complications, as well as severe skin problems that have left her disfigured, the complaint alleged.
The girl "deserves to be compensated appropriately for the pain, suffering, disability and disfigurement she has suffered and will suffer for the rest of her life," Roth said.
