Surgical Errors: Can Newer Laws Affect Damage Awards from Older Injuries?

Doctors diagnosed Kimberly Ann Miles with melanoma in 2002 and successfully the tumor and all traces of the cancer in an outpatient procedure in December 2002. Just to be safe, Miles sought a second opinion from surgical oncologist Dr. Daniel Weingrad shortly thereafter. Dr. Weingrad recommended a second surgery, which Miles underwent in January 2003, despite the fact that postoperative test results showed no residual melanoma from her previous surgery.

After the second surgery, Miles experienced complications that hospitalized her for four days and did not resolve until April 2003. As a result of these complications she was left with permanent swelling, ongoing pain and limited mobility. She sued Dr. Weingrad for surgical malpractice in 2006. A jury verdict awarded her $16,104 in economic damages, $1.45 million in non-economic damages for pain and suffering, as well as, $50,000 to her husband for loss of consortium.

Dr. Weingrad filed a motion to limit the non-economic damages to $500,000 to comply with a statutory cap under Fla. Stat. 766.118, which came into effect on September 15, 2003. The trial court denied his motion noting that the statute was not retroactive, but the Third District Appeals Court reversed because they said that Miles had no vested right to a particular damage award.

On remand, the trail court entered judgment in accordance with the statutory cap, and Miles appealed. The case reached the Florida Supreme Court who disagreed with the decision of the appeals court. They ruled that retroactive application of a substantive statute cannot infringe upon a litigant’s substantive and vested rights.

Doctors and hospitals facing a surgical or medical malpractice lawsuit will often try to use statutory loopholes and other tricks to save money. There are many nuances and details that must be considered and addressed to get you the compensation you deserve. We see from the case above that medical professionals cannot infringe upon your substantive and vested rights by applying new laws to old injuries.

The Florida medical malpractice attorneys at Lytal, Reiter, Smith, Ivey & Fronrath have experience recognizing surgical errors and successfully litigating these types of medical malpractice cases. If you believe you have been the victim of a surgical error, contact a Florida medical malpractice attorney from our firm. We are here to help you recover the compensation you deserve. Call today at 561-655-1990 or toll free at 1-800-654-2024.