FOR IMMEDIATE RELEASE

Orlando, Florida, April 27, 2004 - 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 legislation 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 act 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 September 15, 2003, but under its terms it applies to malpractice incidents occurring 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."
 

While our firm started in Orlando and its main office is there, for many years we have handled cases throughout Florida, and even out of state.  To serve you better we have opened additional satellite offices in several major Florida cities.   We use these offices to conduct client interviews, take depositions, and as war rooms when we have trials in these cities.  When advantageous to you, we will also associate with other lawyers and law firms in some areas of the state to serve you better.  If we do associate with other lawyers on your case it will be at no additional attorney fee or expense to you. 

This site contains only general background information and is not intended to constitute specific legal advice or establish an attorney/client relationship.  Laws vary from state to state and are constantly changing.   If you think you may have a case you should promptly contact a lawyer in your state with experience in handling this type of case.

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