The Palm Beach Post has reported that the Florida Supreme Court has upheld a widow'smedical malpractice award of $10.3 million, though the state's cap is $1 million, because the high court would not apply the law retroactively.
N.R.'s husband, H.R., allegedly died in 2003 after not being given critical medicine by his physician at Palms West Hospital.
N.R., formerly of Wellington, has been waiting since 2003 for her award to be settled and she now has reason to grow hopeful.
Stephen Malove, N.R.'s attorney, said that his client was "ecstatic" after waiting eight years for justice.
The high court, in not directly ruling in N.R.'s case, cited an unrelated decision they had made earlier this year in July instead. In July the court had also struck down the legislature from trying to apply a law retroactively.
In fighting to cap N.R.'s award for pain and suffering stemming from her husband's death by medical mistake in 2003, attorneys that represented Dr. J.S. - the emergency room physician at Palms West Hospital that treated H.R. - cited that N.R.'s lawsuit was filed two years after legislature imposed the new state caps.
The caps are meant to control the growing cost of medical malpractice insurance.
Malove argued that the injury to his client occurred well before the new caps were in place. H.R. died of a heart attack because J.S. failed to five him the anti blood clotting drug Retavase that would have served to reduce the impact of a heart attack, when his client's husband died in April 2003.
Malove successfully argued that the new cap law took place three months after H.R.'s death.
In 2009 the Fourth District Court of Appeal said, "It is therefore well settled that retrospective laws are generally unjust" and the high court, though in an unrelated case, upheld their finding.
Malove hoped that his case would serve to help others that are trying to overturn the state's caps on medical malpractice awards. He contended that though this isn't yet the standard, it "is very positive for throwing out the caps completely."
There is a case due to be heard this coming February that is challenging the law again.
Current state caps for pain and suffering is set at $150,000 per person and $300,000 in total.
Though pleased with the court's decision after so long a wait, N.R. may still not receive her full $10.3 award for other reasons. Michael Mittlemark, J.S.'s attorney, claims that his client's medical malpractice insurance has it's own $1 million cap limit.
Malove remains undeterred. He plans to file a bad faith claim against J.S.'s insurance company. He will argue that since the claim wasn't settled before the case went to trial, J.S.'s insurance company is now liable for the full amount of the award.
Have you, or someone you hold dear, been hurt instead of helped by a physician? Don't concern yourself with award caps, instead, contact a medical malpractice attorney that is expert in the laws governing your state.