A Florida doctor removes the wrong organ: He removes a man’s liver instead of his spleen.
The patient dies.
This is a real case being reported on by The New York Times and other media outlets.
And the law in Florida in this case is hard to wrap your head around. (Note: I practice in Georgia, but a few years ago we handled a Florida medical malpractice case and had to deal with this.)
In Florida, if the doctor doesn’t admit fault, the case goes to a jury, and non-economic damages are uncapped (because Florida’s traditional caps were struck down as unconstitutional).
But if the doctor says, “Yes, I was negligent,” and elects arbitration?...
The law says that the maximum non-economic damages are:
- $250,000 if the plaintiff agrees to arbitrate.
- $350,000 if they refuse and still go to court.
That’s it.
Let that sink in. The worse the negligence, the more incentive there is to admit fault and cap the value of the case.
So the most egregious cases might have limited damages, while closer calls can get uncapped noneconomics.
This patient was 70. The economic damages may be limited.
And the potential recovery of noneconomic damages for conduct so egregious it led to the doctor’s arrest? Capped.
Call it what you want. Efficiency. Predictability. Reform.
But at its core, it’s a system that puts an artificial ceiling on accountability in the very cases where accountability should matter most.
What are your thoughts? Join the conversation with me on LinkedIn.
