Court Declares Portion of Florida’s 2003 Medical Malpractice Tort Reform Act Unconstitutional

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A Circuit Court Judge in Seminole County, Florida, has found a portion of FloridaÂ?s 2003 medical malpractice reform legislation unconstitutional. It is believed this is the first case to address the constitutionality of the new law.

A Circuit Court Judge in Seminole County, Florida, has found a portion of Florida’s 2003 medical malpractice reform legislation unconstitutional. It is believed this is the first case to address the constitutionality of the new law.

The 2003 medical malpractice tort reform act was promoted heavily by Governor Bush, who forced a mostly reluctant Florida Legislature back for five special sessions last year to deal specifically with medical malpractice reforms. The 171 page malpractice package that finally passed made several controversial changes, including placing caps on damage awards against doctors and hospitals and granting complete immunity to HMO’s for the negligent conduct of their contract doctors. The new legislation went into effect in September 15, 2003, but under its terms it applies to malpractice incidents occuring both before and after that date.

On April 22, 2004, Circuit Court Judge Marlene Alva issued a short written order stating that the application of the new law was unconstitutional because it retroactively took away vested rights of patients who were already injured by malpractice before the date the new legislation was enacted. The case before Judge Alva concerned the liability of Cigna HMO for the alleged negligence of one of its member physicians leading to the death of a 16 year-old patient in October 2002. Although the medical incident occurred before the new law was passed, Cigna HMO claimed the new law granted it retroactive immunity from suit. Scott R. McMillen, the attorney for the teenager’s family, stated “The court’s ruling is limited solely to the retroactivity issue, and what it means is that there is no immunity for any negligence occurring before September 15, 2003. But the case has broader importance because the same legal reasoning should also apply to the retroactive application of the damage caps on doctors and hospitals.”

The court’s ruling was based on an earlier Florida Supreme Court case and on a provision in the Florida Constitution granting all Florida’s citizens the right of access to Florida's courts for redress of injury. McMillen stated “… other courts will eventually have to decide if even the future implementation of malpractice immunity or damage caps will be valid. But it’s clear Governor Bush can’t unilaterally take away fundamental rights granted by the Constitution based on short term partisan politics. If he wants to do that he will have to revoke the Constitution first.”

For additional information, or a copy of the court order or legal brief, contact:

Scott R. McMillen

McMillen, Reinhart & Voght, P.A.

Attorneys at Law

Orlando, Florida 32801

407-843-0126

http://floridamalpractice.com

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Scott McMillen