Florida Court Rules Medical Malpractice Cap is Unconstitutional By Josh Silverman on April 17, 2014

Similar to Virginia law, Florida has (or I should say had) a medical malpractice cap.  Virginia's medical malpractice cap was instituted in the late 1970s in response to a perceived medical malpractice crisis.  The fear was that medical malpractice insurance premiums were increasing which would discourage doctors from practicing in Virginia.  There never was much evidence to support that theory.  In truth insurance companies invest premiums and when their investments do poorly they raise premiums.  It happens to your auto and homeowners insurance as well.  If you ever wonder why your rates have gone up without filing any claims, there's your answer.  

Recently the Florida Supreme Court examined its medical malpractice cap and found that it is unconstitutional as it does not even survive a rational basis test.  The rational basis test is the lowest test for a statute that discriminates.  A court will uphold a statute under the rational basis test if there is rational and reasonable relationship to a legitimate state interest.  The Court found that “the statutory cap on wrongful death noneconomic damages [in medical malpractice cases] fails because it imposes unfair and illogical burdens on injured parties when an act of medical negligence gives rise to multiple claimants."  Noneconomic damages include pain, suffering, grief, disfigurement, and disability.  The Court further noted that it saved a small amount of money but with a devastating impact on the few people that sustain a serious injury or are killed due to medical malpractice.

Virginia's medical malpractice cap remains the law but hopefully not for too long.  The underlying principle is defective.  If you suffer a minor injury you will be fully compensated.  Only if you suffer a horrendous injury are you limited by the medical malpractice act.  If you have any questions about medical malpractice law in Virginia, please do not hesitate to contact us.  

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Josh Silverman

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At the Silverman Law Firm LC in Richmond, VA, attorney Josh Silverman and his team represent victims of personal injuries and medical malpractice. Josh Silverman has been recognized as a "Virginia Super Lawyer" every year since 2013 and was selected as a 2015 Top Rated Lawyer in Healthcare Law based on his AV Peer Review Rating in Martindale-Hubbell©.

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