By Damian D. Capozzola, Esq.
The Law Offices of Damian D. Capozzola
Jamie Terrence, RN
President and Founder, Healthcare Risk Services
Former Director of Risk Management Services
California Hospital Medical Center
Morgan Lynch, 2018 JD Candidate
Pepperdine University School of Law
News: A woman presented to a hospital for the treatment of carpal tunnel syndrome. After awaking from the surgery, she experienced tremendous pain and, after discharge, was found unresponsive in her home. After determining her pain was caused by a perforated esophagus arising out of negligent anesthetic administration, the patient filed suit and received a judgment of more than $4.7 million.
The noneconomic portion of the judgment was later substantially reduced by the trial court pursuant to a statutory damages cap. The patient appealed the reduction to the Florida appellate court. The cap was found to be unconstitutional by the appellate court, and the defendants again appealed. After reviewing the case, the Supreme Court of Florida agreed with the appellate court and plaintiff, holding the statutory cap to be unconstitutional.
Background: In 2007, a woman went to a hospital in Florida for outpatient surgery to treat carpal tunnel syndrome in her wrist. The patient was placed under general anesthesia for the surgery, part of which required intubation. During intubation, one of the tubes perforated the patient’s esophagus. Prior to the surgery and incident intubation, the patient did not experience any complications with her esophagus or report any bodily pain unassociated with her carpal tunnel.
When the patient awoke in recovery, she complained of excruciating pain in her chest and back. The anesthesiologist was notified, who ordered a drug be administered for the chest pain and concluded there were no complications with the patient’s heart. The anesthesiologist was unaware of the perforated esophagus. The patient was discharged from the hospital, and the patient’s neighbor drove her home.
The next day, the patient’s neighbor found her unresponsive, and drove her to the ED. Upon discovery of the perforation, the patient was rushed into lifesaving surgery to repair her esophagus. The next thing the patient remembered was waking up in the ICU after being in a drug-induced coma for several weeks. The patient underwent additional surgeries and required intensive therapy to begin eating again and to regain her mobility.
The patient eventually filed suit against the hospital, the anesthesiologist, a certified registered nurse anesthetist, and a student registered nurse anesthetist, among other defendants, for medical malpractice. The complaint raised issues, including personal liability and vicarious liability, the extent of the plaintiff’s injuries, and significantly, whether she suffered a “catastrophic injury” as defined by Florida Statute § 766.118.
At trial, the plaintiff testified that she continued to suffer from pain throughout the upper half of her body and from serious mental disorders because of the traumatic incident and the loss of independence because of her body’s physical limitations following this incident.
The trial court submitted two questions to the jury: (1) whether the nurse acted as an agent of the university employee when he was supervising the student during the administration of the anesthesia to the plaintiff, and (2) whether the plaintiff suffered a catastrophic injury, defined as a “permanent impairment constituted by either ... [s]pinal cord injury involving severe paralysis of an arm, a leg, or the trunk ... [or] [s]evere brain or closed-head injury evidenced by a severe episodic neurological disorder” by the Florida statute.
The jury ultimately found in the plaintiff’s favor, allocating 50% liability to the anesthesiologist, 35% liability to the hospital, 10% liability to the certified registered nurse anesthetist, and 5% liability to the student registered nurse anesthetist. The jury awarded the plaintiff more than $4.7 million in total damages, the noneconomic damages amounting to $2 million for past pain and suffering and $2 million for future pain and suffering.
The trial judge reduced the award by almost $3.3 million pursuant to two controlling statutory provisions that capped noneconomic damages in Florida medical malpractice cases, and post-trial motions abounded from both sides. The District Court of Appeal of Florida applied a Florida Supreme Court case, Estate of McCall v. United States, 134 So.3d 894 (Fla. 2014), and held the statutory caps to be unconstitutional, ultimately reinstating the entire jury verdict. The defendants then appealed to the Supreme Court of Florida, who affirmed the appellate court.
What this means to you: To first address factual lessons, there are safeguards anesthesiologists can use before intubation to ensure there are no anatomical anomalies or respiratory issues that would put a patient at higher risk for injury during intubation. An inspection of the patient’s throat during the anesthesiologist’s preprocedural visit is the standard of care along with questions about previous experiences the patient may have had while under anesthesia, smoking history, and past or current respiratory illnesses.
Once in the recovery room, the patient’s complaints of severe pain should have been investigated further, as the type of pain the patient was experiencing was not typical following carpal tunnel surgery. Once a cardiac source was eliminated, the physician was required to investigate the source of the patient’s unusual pain, rather than mask it with analgesics.
The most salient legal warning from this case is Florida’s law regarding statutory caps is in flux. Both the Florida appellate court and the Florida Supreme Court applied the 2014 Florida Supreme Court case, Estate of McCall, and found the statutory cap to be unconstitutional. Estate of McCall involved the wrongful death of a mother following the birth of her son. The issue in that case was whether a statutory cap violated the equal protection clause because the cap “imposes unfair and illogical burdens on injured parties” and “does not bear a rational relationship to the stated purpose that the cap is purported to address, the alleged medical malpractice insurance crisis in Florida.”
In reaching its conclusion on this issue, the Florida Supreme Court focused on the arbitrary distinctions created by § 766.118(2) and (3), Florida statutes which, with narrow exceptions, generally prevent plaintiffs from recovering more than $500,000 in noneconomic damages against practitioner defendants, and $750,000 against nonpractitioner defendants. However, if the negligence “resulted in a permanent vegetative state or death” or “special circumstances” exist with a “particularly severe” noneconomic harm to the plaintiff, then the statute permits recovery up to $1 million against practitioner defendants, and $1.5 million against nonpractitioner defendants.
The court entertained a hypothetical involving three plaintiffs injured to varying degrees by the same defendant. It then noted that the plaintiffs would be treated differently under the statute based on the degree of their injury; i.e., a more severely injured plaintiff could fail to recover the full amount of their damages, whereas a lesser injured plaintiff would be successful in recovery. Thus, the court found that the statute discriminated between slightly and severely injured plaintiffs and defendants who cause minor or severe injuries. The court went on to hold that the statutory cap failed the rational basis test since its stated purpose, preventing the exodus of physicians from Florida, bore no rational relationship to the statutory cap.
The Florida Supreme Court applied Estate of McCall to the instant case and reached a similar result. The court again inquired into the arbitrariness of the statutory cap, and considered the same hypothetical group of injured plaintiffs and offending defendants. Sections 766.118(2) and (3) involving “catastrophic injury” capped noneconomic damages similarly to statute in Estate of McCall. The court noted that an amputated hand was as equally catastrophic as being put in a vegetative state, and found that the statute arbitrarily discriminated.
After concluding that the statute violated the state equal protection clause, the court noted the dearth of evidence showing an ongoing crisis in the medical community relating to an outflow of professionals, thus undermining the allegation that the statute prevented such an exodus.
Considering its analysis, the Florida Supreme Court affirmed the appellate court, holding § 766.118 unconstitutional and effectively reinstating the plaintiff’s jury award. It is important to note that as of the writing of this article, the final outcome case is not confirmed as the deadline for the parties to seek a rehearing has not yet expired.
The reasoning from this case can clearly extend to other jurisdictions that have a similar lack of evidence of an ongoing medical crisis. As such, it is possible that legislation may change elsewhere, but for now, § 766.118 of the Florida statutes will no longer be available to defendants to reduce noneconomic damages awards.
Decided on June 8, 2017 in the Supreme Court of Florida, Case No. SC15-1858.