THIRD DISTRICT FINDS MED MAL CAPS ON NON-ECONOMIC DAMAGES TO APPLY RETROACTIVELY
Weingrad v. Miles, 35 Fla. L. Weekly D508 (Fla. 3rd DCA March 3, 2010):
A woman and her husband were awarded $1.5 million dollars in non-economic damages in a medical malpractice case. The sole issue before the court was whether the retroactive application (capping non-economic damages in certain med mal actions at $500,000) was constitutionally permissible as applied in a case where the incident occurred before the effective date of the statute, but the notice of intent and suit was filed after the law took effect.
The court began its analysis by quoting Justice Pariente from another case where she said “we do not take lightly a contention that a statute passed by the Legislature is unconstitutional and we start with the well-established principle that a legislative enactment is presumed to be constitutional.” The court then described the test for whether a statute may be retroactively applied, requiring an analysis of four issues: (1) whether the statute is procedural or substantive; (2) whether there is an unambiguous legislative intent for retroactive application; (3) whether the plaintiff’s right is vested or inchoate; and (4) whether the application of the law to the particular facts would be unconstitutionally retroactive.
While the court found this was a substantive statute, it found that the Legislature unambiguously provided that §766.118 was to apply retrospectively, and to apply to any medical incidents for which a notice of intent to initiate litigation was mailed on or after 9/15/03 (as long as the application would not be prohibited by state or federal constitutions).
Finding this clear intent, the court then analyzed whether the plaintiff had a vested right prior to the enactment of the law. Unfortunately, the court found that the plaintiff at most had a “mere expectation” that she had a cause of action, and possessed no vested right to pursue her common law tort to recover damages. It then cited numerous federal and cases from outside of Florida, in support of this principle which came from the decision of the Florida Supreme Court in Clausell v. Hobart Corp., 515 So. 2d 1275 (Fla. 1987).
The court went on to criticize the Fourth District’s “inconsistent ruling” on the vested right issue, citing the ruling in Raphael v. Shecter, 18 So. 3d 1152, 1156 (Fla. 4th DCA 2009)(which found retroactive application to be unconstitutional). The Third District said the Fourth ignored the Florida Supreme Court’s decision in Clausell when it found that a vested right occurs when a cause of action accrues, and criticized it for providing no analysis or authority for its conclusion to the contrary.
The court ultimately held that although the injury occurred in 2003–prior to the effective date of the amendment of §766.118–and because the notice of intent was not filed until after the effective date of the statute, the plaintiffs had no vested right to a particular damage award and thus suffered no due process violation when the caps were applied to their case. Judge Cope dissented.
ORDER REQUIRING DISCLOSURE OF DEFENDANT’S SUBSTANCE ABUSE TREATMENT INFORMATION AND RECORDS VIOLATED THE PSYCHOTHERAPIST-PATIENT PRIVILEGE – DEFENDANT DID NOT PLACE HIS MENTAL OR EMOTIONAL CONDITION AT ISSUE BY DENYING PLAINTIFF’S ALLEGATIONS THAT HE WAS UNDER THE INFLUENCE OF DRUGS, ALCOHOL OR MEDICATION AT THE TIME OF THE ACCIDENT
Cruz-Govin v. Torres, 35 Fla. L. Weekly D520 (Fla. 3rd DCA March 3, 2010):
After a car accident where the plaintiff’s wife was killed and he himself was injured, plaintiff filed suit and later learned that the defendant driver had recently been admitted to a drug rehabilitation facility. Plaintiff then sought the production of the defendant driver’s post-accident substance abuse treatment records. He also sought orders to compel defendant’s parents to answer interrogatories concerning their son’s treatment.
Plaintiff asserted that §90.503(4)(c) provides an exception to the psychotherapist patient statute requiring a party to produce communications relevant to an issue on the mental or emotional condition of a patient when that patient relies upon the condition as an element of his or her claim or defense.
The court concluded that the plaintiff did not meet his burden of showing that said exception applied. The statutory exception only applies when the patient, not the opposing party who seeks privileged information places his mental health at issue. The plaintiff cannot pierce the privilege by filing a claim that makes an issue of the person’s mental health.
Additionally, defendant did not place his mental or emotional condition at issue by merely denying the allegations or suggestions of impairment at the time of the accident. It was the plaintiff’s allegations of impairment that made the treatment part of the case. Absent the allegations, the defendant would not have addressed the issue. The defendant also did not rely on any mental or emotional condition as part of his defense. Accordingly, the court granted certiorari against the order compelling that discovery.
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