As state legislatures work at right-sizing malpractice caps upward or downward, courts have been asked to address whether those caps apply retroactively. This was the question before the Florida Supreme Court recently. A Miami-Dade County case involved a jury award of $1.5 million in noneconomic damages to a melanoma victim. The patient in this case argued that, after an initial surgery on her leg, she had sought a second opinion from the defendant. The surgeon advised that additional surgery was needed. After a second surgery performed by the surgeon, the patient subsequently experienced infections, permanent swelling, and pain to her leg after what she alleged to be unnecessary surgery. Postoperative tests showed that no melanoma was present.

The surgeon’s attorneys appealed the decision, arguing that a 2003 state cap applied. The 2003 law limits damages to between $500,000 and $1,000,000 depending on the circumstances of each case and the number of people involved. The intent of that law, as the defendant’s attorneys stated in their brief, was “necessary to respond to an unprecedented medical malpractice insurance crisis.”

Although the Third District Court of Appeals agreed with the physician and reduced the award to $500,000, a 5-3 majority of Supreme Court judges stated that the cap did not apply because the purported damage had occurred prior to the law’s passage. In this instance, the surgery involved took place seven months before the law was enacted. The majority opinion, written by Justice James E.C. Perry, stated, “Our precedent establishes that, generally, a litigant’s substantive and vested rights may not be infringed upon by the retroactive application of a substantive statute.” The decision was reached even though the patient did not file her case until 2006.

In an unrelated case, the same Florida Supreme Court rejected part of the 2003 law, finding that limitations on caps for wrongful-death cases are unconstitutional.