|
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."
Click here for Judge Alva's order
Click here for summary of arguments made in plaintiff's
brief
|
