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14 Fla. St. U. Bus. Rev. 31 (2015)
Noneconomic Damages Caps in Wrongful Death Medical Malpractice Cases - Are They Constitutional?

handle is hein.journals/fsubr14 and id is 38 raw text is: NONECONOMIC DAMAGES CAPS IN WRONGFUL DEATH MEDICAL MALPRACTICE CASES - ARE THEY CONSTITUTIONAL? SUE GANSKE* I. IN TRODU CTION ...................................................................... 31 II. MEDICAL MALPRACTICE WRONGFUL DEATH NONECONOMIC D AM AGES CAPS ..................................................................... 33 III. FLORIDA'S SUPREME COURT DECLARES NONECONOMIC DAMAGES IN MEDICAL MALPRACTICE WRONGFUL DEATH CASES UNCONSTITUTIONAL--ESTATE OF MCCALL V. U.S ....... 38 IV . C O N CLU SIO N ............................................................................. 50 I. INTRODUCTION Wrongful deaths from medical malpractice are an extremely se- rious issue in health care in the United States.1 It was estimated in 2013 that between 210,000 and 400,000 deaths occur each year from preventable medical errors.2 In 2010, the Office of the Inspector General for the Department of Health and Human Services stated that adverse events in hospitals led to an estimated 180,000 deaths of Medicare patients per year.3 Recoverable tort damages include compensatory damages, or damages sufficient in amount to indemnify the injured person for the loss suffered.4 Compensatory damages can include economic and noneconomic damages.5 Economic damages are for financial losses such as past and future medical expenses and loss of earning capacity.6 Noneconomic damages are for more intangible losses, such as pain and suffering and mental anguish.7 Punitive damages C 2015 Sue Ganske * Clinical Professor of Business Law, School of Accounting, College of Business, Florida International University; Distinguished Teaching Professor Emerita, Bowling Green State University; J.D., University of Toledo College of Law, Business Editor of the Law Review, Order of the Coif, M.A. and B.A., Bowling Green State University. 1. In full disclosure, this author has had a family member die due a preventable medical error. She has tried to maintain objectivity on the topic. 2. John T. James, A New, Evidence-Based Estimate of Patient Harms Associated with Hospital Care, 9 J. PATIENT SAFETY 121 (Sept. 2013). Preventable serious harm to patients is estimated at ten to twenty times higher. Id. 3. HHS Office of Inspector General, Adverse Events in Hospitals, National Incidence Among Medicare Beneficiaries, (visited August 7, 2014), available at http://oig.hhs.gov/oei/re- ports/oei-06-09-00090.pdff This represents 1.5% of Medicare patients. Id. 4. BLACK'S LAW DICT. 45 (9th ed. 2009). The term compensatory damages is used inter- changeably with actual damages. Id. 5. Texas Trial Lawyers Association, Glossary of Legal Terms, Damages, https://www.ttla.com/index.cfmpg-legalglossary (visited August 10, 2014). 6. States vary in their definitions. See, e.g., FLA. STAT. § 766.202(3) (2014). 7. Again, states vary in their definitions. See, e.g., FLA. STAT. § 766.202(8) (2014).

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