Since 2003, Florida law has limited the amount of non-economic damages that a person may collect in a medical malpractice lawsuit in an effort to keep insurance rates low. Many states divide compensation for personal injury into different categories in order to distinguish two types of costs: economic damages that an injury victim requires to recover their health, and non-economic damages that occur as a result of the accident.
Economic damages are damages easily ascertainable based on lost wages and lost ability to earn. Non-economic damages are damages that are not readily identifiable but address the personal distress and impact an accident has had on an individual’s life. Non-economic damages are more valuable damages because they are things that you cannot see, but cause the most pain, discomfort, and most significant effect on someone’s life. A good lawyer is able to value the non-economic damages sustained to incorporate their value in the total amount that is being sought for damages.
Economic damages include:
- Medical treatment
- Out-of-pocket expenses
- Loss of wages
Non-economic damages include the following:
- Pain and suffering
- Loss of capacity to enjoy life
Cap on Non-Economic Damages
A cap on non-economic damages is an arbitrary number that the legislature establishes to limit an individual’s ability to recover damages not easily ascertainable. The Florida Supreme Court has eliminated the cap on non-economic damages when an individual dies because of medical negligence. Previously, the limit on non-economic damages that a person could collect in a medical malpractice lawsuit was the same whether the victim survived or died because of their injuries: $500,000 against medical practitioners, such as doctors and physicians, and $1 million against non-practitioners, such as hospitals and surgical centers. Because of the 5-2 court ruling, medical negligence claims filed for patients who die are no longer limited to these damage caps.
Some professionals criticize the ruling, saying that it may increase the number of meritless lawsuits and make it more difficult for patients to gain access to adequate medical care. However, others suggest that the damage limit removal provides more opportunities to families. Because the statute of limitations for wrongful death is only two years—in comparison to four years for medical malpractice—many families could not take effective legal action when the death of their loved ones resulted from medical negligence.
What This Means for Your Malpractice Claim
Depending on the individual circumstances of a case, this may change the compensation available in a medical negligence claim. Remember, the cap on non-economic damages has been lifted for victims who have died as a result of medical malpractice—surviving victims may still be restricted in the amount of non-economic damages that they can receive.
Sometimes, there are different things a lawyer can do to get around a non-economic damages cap. If they can argue that the attorney’s fees and costs should be awarded, they can go above and beyond the cap. For the most part, the cap exists for a reason and the legislature passed it as such, so, if there is a cap, it is relatively difficult to get through that cap. However, if you can seek punitive damages or get attorney’s fees and costs, there are certainly ways to work around the cap and seek damages that exceed the cap.
An individual should hire a lawyer when they have substantial non-economic damages because the value of those damages is not readily ascertainable because of their amorphous concept. You cannot add up pain and suffering, or multiply emotional distress. A specialized lawyer has the experience to enable them to calculate the damages based on jury verdicts and other information to account for this type of damage.
Whether you are preparing to file a claim or are currently involved in one, this information may be important to your case. Consult the Clearwater personal injury lawyers at the Law Offices of Tragos, Sartes & Tragos today and get informed by attorneys with 40+ years of legal experience.