Efforts to reform the medical liability system in Florida date back to the mid-1980s. The first success arising from these efforts was a 1988 law which created an arbitration system and capped non-economic damages for cases that used arbitration. However, since very few plaintiffs agreed to use arbitration, this part of the law was not very effective. The 1988 bill also required that an expert medical opinion be submitted when filing a medical malpractice lawsuit, which may have helped to limit frivolous lawsuits.
Tort reform was not attempted again with any success until 2003, when sweeping reforms limiting non-economic damages were passed during a special session of the legislature. The legislation limited noneconomic damages to $500,000 or $1,000,000, depending on the circumstances of the case.Â In March 2014, the Florida Supreme Court struck down the cap on damages in cases that result in a patientâs death.
Three years later, in June of 2017, the Florida Supreme Court ruled that the cap on damages was unconstitutional in all medical malpractice cases. The four-member majority found caps on non-economic damages violate equal protection rights, are arbitrary and have had little effect on reducing medical malpractice insurance premiums.
The Florida Supreme Court took another whack at the stateâs medical liability tort reforms in November 2017 when it rejected a 2013 law involving anÂ issue known as âex parteâ communications between doctors and defense attorneys. The Court found that Floridaâs Constitutional privacy rights extend beyond death. This means that medical malpractice defense attorneys can no longer interview alleged victimsâ previous healthcare providers in private while investigating the claim of negligence.
The Florida Supreme Courtâs June 2017 ruling that damage caps are unconstitutional left in place a portion of a medical malpractice tort reform statute that requires âwhen a plaintiff succeeds at trial but had previously rejected a defendantâs offer to voluntarily arbitrate the claim, the plaintiffâs noneconomic damages are capped at $350,000.â But in the 2018 case of DeFranko v. Poole, Judge Jose Rodriguez denied a defense motion to reduce a jury verdict for noneconomic damages from $500,000 to $350,000 because the defense offered to arbitrate the claim, further chipping away at Floridaâs tort reform laws that cap noneconomic damages in medical professional liability actions. Rodriguez refused to reduce the jury verdict for noneconomic damages due to the plaintiff rejecting a defense offer to arbitrate the claim, finding that the arbitration portion of the stateâs medical liability laws likewise violates the equal protection clause of the Florida Constitution.
In a positive development for physicians, the Supreme Court of Florida changed course from its 2017 rejection of the Daubert standard for expert testimony in favor of the Frye standard, and ruled that, effective immediately, Daubert is now the governing standard in Florida for admissibility of expert testimony.
The Courtâs ruling is the latest development in a long running dispute regarding whether the modern Daubert standard or the older, more lenient Frye standard should be the governing rule in Florida for admissibility of expert testimony. In 2013, the Florida Legislature adopted amendments to the Florida Evidence Code to bring Florida in line with federal courts and a majority of other states that follow Daubert. However, in 2017, the Florida Supreme Court declined to adopt the Daubert Amendment as a rule of court to the extent it was procedural.