No Retroactive Tort Reform in Florida Medical Malpractice Suit Posted on June 8, 2015 by Larry Bodine The Florida Supreme Court ruled that a plaintiff’s recovery should not be capped by a state tort reform statute enacted after the malpractice incident. The court stated that retroactively applying the statute would have been unfair to the plaintiff. Plaintiffs Kimberly Ann Miles and her husband Jody Haynes filed suit against surgeon, Dr. Daniel Weingrad after Miles suffered severe complications from an unnecessary cancer surgery. A Flawed Second Opinion Miles was diagnosed with melanoma and underwent surgery to remove a cancerous tumor from her leg. She was told the tumor was completely removed and no cancer remained. To be certain, Miles sought a second opinion from Dr. Weingrad. He convinced Miles it was necessary to have an emergency second surgery because “they didn’t get it all.” The surgery was performed in January 2003. Postoperative surgery results showed no melanoma existed prior to the second surgery. See: Healthcare Network Liable for $1.6M for Overdosing Patient The second surgery resulted in an infection, four day hospitalization, ongoing pain and permanent swelling in her leg. Additionally, the plaintiff can no longer sit or stand for long periods, nor can she exercise. The plaintiffs were awarded $1.45 million in economic damages and $16,104 in economic damages. Jody Haynes was awarded $50,000 for his loss of consortium claim. The defendants appealed the jury award, stating the damages should be reduced to $500,000 due to the recent legislation, which imposed a damage cap on medical malpractice awards. The law was enacted in September 2003. Retroactively Applying the Statute is Unfair Determining whether a statute may be applied retroactively requires consideration of whether the statute expresses the intent for retrospective application and if so, whether the retroactive application is constitutional. Applying this standard, the court found a cause of action in medical malpractice accrues at the time the incident occurs. The legislative action became effective in September, seven months after the plaintiff’s cause of action accrued. Additionally, a retroactive application of the statute would have infringed on the plaintiffs vested and substantive rights. The court ruled against Dr. Weingrad, quashing the previous court’s decision and remanded the case to the lower court to reinstate the original jury award. This case is Kimberly Ann Miles, et. al v. Daniel Weingrad, M.D. Case No. SC13-54, Supreme Court of Florida Counsel for the plaintiffs were Robert Glazier, Law Office of Robert S. Glazier, Miami Florida, Alejandro Alvarez, Alvarez Law Firm, and Philip Mead Burlington of Burlington & Rockenbach
