Articles Posted in Damages

Elizabeth McNamara was 63 when she underwent a right hip replacement that was done by an orthopedic surgeon, Dr. David Weissberg. After the surgery, she developed right foot drop and was diagnosed as having an injured peroneal nerve.

McNamara continued to suffer the foot drop and numbness in her right leg — problems that caused her to fall and necessitated the use of a leg brace for walking and modifications to her car so that she was able to drive.

McNamara and her husband filed a lawsuit against Dr. Weissberg, maintaining that the nerve injury resulted from either his misplacement of a surgical retractor or application of excessive force on the right leg during the surgery.
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The Florida Supreme Court has struck down a state law that capped noneconomic damages in medical malpractice injury lawsuits that stood at $1 million. The high court found that the law violates the equal protection clause of the Florida Constitution.

In this 4-3 decision, the Florida Supreme Court affirmed the Fourth District Court of Appeals’ 2015 decision that found that the cap, established by Florida statute, does not pass the rational basis test because the law arbitrarily reduces medical malpractice claimants’ rights to full compensation when there are multiple claimants and because it “does not bear a rational relationship” to its stated purpose of addressing an alleged medical malpractice insurance crisis in the state.

The decision relied heavily on the Florida Supreme Court’s 2014 decision in Estate of McAll v. United States that struck down the cap on noneconomic damages in wrongful death cases for many of the same reasons.
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