Raphael v. Shecter

• Decision Date: 23 September 2009
• Docket Number: No. 4D08-432.,4D08-432.
• Citation: 18 So.3d 1152
• Parties: Nadine RAPHAEL, as Personal Representative of the Estate of Harvey Raphael, Appellant, v. James SHECTER, and Emergency Physician Enterprises, Inc., Appellees.
• Court: Florida District Court of Appeals

18 So.3d 1152

Nadine RAPHAEL, as Personal Representative of the Estate of Harvey Raphael, Appellant, v. James SHECTER, and Emergency Physician Enterprises, Inc., Appellees.

No. 4D08-432.

District Court of Appeal of Florida, Fourth District.

September 23, 2009.

Rehearing Denied November 4, 2009.

Scott L. Henratty and Stephen L. Malove of Stephen L. Malove & Associates, P.A., Fort Lauderdale, and Adam Lawrence of Lawrence & Daniels, Miami, for appellant.

Robert E. Biasotti and Annette Marie Lang of Carlton Fields, P.A., St. Petersburg, for appellees.

Joel S. Perwin of Joel S. Perwin, P.A., Miami, for Amicus Curiae Florida Justice Association.

William W. Large of Florida Justice Reform Institute, Tallahassee, for Amicus Curiae Florida Justice Reform Institute.

George N. Meros, Jr. and Andy V. Bardos of GrayRobinson, P.A., Tallahassee, for Amicus Curiae Florida College of Emergency Physicians and Florida Hospital Association.

Mark Hicks and Brett C. Powell of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, for Amicus Curiae Florida Medical Association.

LEVINE, J.

This appeal presents the question of whether a statute that limits the non-economic damages of a plaintiff can be applied retroactively. We find in this particular case, the new statute cannot be utilized to retroactively limit non-economic damages, and therefore we reverse.

In April, 2003, Harvey Raphael suffered a heart attack and was treated in an emergency room. Dr. James Shecter treated Raphael and did not administer anti-clotting drugs at that time. A different doctor administered this particular drug more than an hour later. Evidence was presented at trial that the delay in administering this drug resulted in significant damage to Raphael's heart. In 2005, Raphael filed a negligence action against Dr. Shecter, Dr. Shecter's employer, and the hospital. The appellant died following an unsuccessful heart transplant in 2006.

At the time of the incident, this medical malpractice action was governed by section 766.209(2), Florida Statutes (2002), which stated that "[i]f neither party requests or agrees to voluntary binding arbitration, the claim shall proceed to trial or to any available legal alternative such as offer of and demand for judgment under s. 768.79 or offer of settlement under s. 45.061." The statute went on to further state that the claim shall proceed to trial "without limitations on damages" if the defendant refuses a claimant's offer of voluntary binding arbitration under section 766.209(3) and the limitation of non-economic damages would be set at $350,000 if the claimant rejects the defendant's offer to enter voluntary binding arbitration pursuant to section 766.209(4). In this case, neither party offered to arbitrate, so section 766.209(2) would have applied.¹

After a jury trial, there was a jury verdict awarding the appellant $9.5 million in non-economic damages. Then appellee moved to limit the non-economic damages to $150,000 per claimant pursuant to section 766.118(4), Florida Statutes (2003),² and the trial court granted the motion.

Section 766.118, which placed limits on non-economic damages in medical malpractice cases, was adopted after the incident of malpractice in this case occurred. The notice of intent to initiate litigation³ was sent and the suit was filed in 2005, nearly two years after this statute became effective on September 15, 2003.

Throughout history, courts and legal commentators have generally looked with disapproval and extreme caution at the retroactive application of laws. "It is a fundamental principle of jurisprudence that retroactive application of new laws is usually unfair." 2 Norman J. Singer, Statutes and Statutory Construction § 41:2, at 375 (6th ed. 2001). As the United States Supreme Court has explained,

[r]etroactivity is generally disfavored in the law, Bowen v. Georgetown Univ. Hospital, 488 U.S. 204, 208, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988), in accordance with "fundamental notions of justice" that have been recognized throughout history, Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 855, 110 S.Ct. 1570, 108 L.Ed.2d 842 (1990) (Scalia, J., concurring).... H. Broom, Legal Maxims 24 (8th ed. 1911) ("Retrospective laws are, as a rule, of questionable policy, and contrary to the general principle that legislation by which the conduct of mankind is to be regulated ought to deal with future acts, and ought not to change the character of past transactions carried on upon the faith of the then existing law").

E. Enters. v. Apfel, 524 U.S. 498, 532-33, 118 S.Ct. 2131, 141 L.Ed.2d 451 (1998). It is therefore well settled that retrospective laws are "generally unjust." Id. at 533, 118 S.Ct. 2131 (quoting 2 J. Story, Commentaries on the Constitution § 1398 (5th ed. 1891)).

In Florida, to determine whether a statute may be retroactively applied, "we consider two factors: (1) whether the statute itself expresses an intent that it apply retroactively; and, if so, (2) whether retroactive application is constitutional." Old Port Cove Holdings, Inc. v. Old Port Cove Condo. Ass'n One, Inc., 986 So.2d 1279, 1284 (Fla.2008) (citing Metro. Dade County v. Chase Fed. Hous. Corp., 737 So.2d 494, 503 (Fla.1999) (holding that where there is clear legislative intent to apply a statute retrospectively, the second inquiry is whether the legislature acted within "constitutionally acceptable parameters")).

When it adopted section 766.118(4), the Florida Legislature expressly stated the following intent to apply the statute retroactively to incidents that took place prior to its enactment:

It is the intent of the legislature to apply the provisions of this act to prior medical incidents, to the extent such application is not prohibited by the State Constitution or Federal Constitution, except that the changes to chapter 766, Florida Statutes, shall apply only to any medical incident for which a notice of intent to initiate litigation is mailed on or after the effective date of this act.

Ch. 03-416, § 86, Laws of Fla.⁴

However, the Legislature's clear intent to modify and allow new damages retroactively is not necessarily dispositive. In State Farm Mutual Automobile Insurance Co. v. Laforet, 658 So.2d 55, 61 (Fla.1995), the Legislature intended the retroactive application of a new statute for "bad faith" actions against insurers. The Supreme Court found that the legislature was within its rights to alter damages allowable under the statute prospectively. The question was whether the legislature could "modify the definition of damages retroactively to 1982 through a purported clarification of its intent." Id. at 61.

In Laforet, the Supreme Court decided that the Legislature, despite its clear intent, could not retroactively modify the definition of damages so as to alter or impair vested or substantive rights of the insurers. Id. The court reasoned that, generally, "retroactive abolition of substantive vested rights is prohibited by constitutional due process considerations." Chase Fed., 737 So.2d at 503 (citing Rupp v. Bryant, 417 So.2d 658, 665-66 (Fla. 1982)).

It is, therefore, well settled in Florida that,

[e]ven when the Legislature does expressly state that a statute is to have retroactive application, [courts have] refused to apply a statute retroactively if the statute impairs vested rights, creates new obligations, or imposes new penalties.

Laforet, 658 So.2d at 61; Young v. Altenhaus, 472 So.2d 1152, 1154 (Fla.1985); Rupp, 417 So.2d at 670; El Portal v. Miami Shores, 362 So.2d 275, 277 (Fla.1978).

Although a substantive statute will not operate retrospectively, the general rule is that a procedural or remedial statute may operate retrospectively. Laforet, 658 So.2d at 61. Thus, whether section 766.118(4), Florida Statutes, is a change or amendment that is substantive or procedural in nature is an issue that is determinative of this case.

Substantive law prescribes "duties and rights" and procedural law amendments concern "means and methods." Alamo Rent-A-Car v. Mancusi, 632 So.2d 1352, 1358 (Fla.1994). In Mancusi, the legislature limited the amount of punitive damages for causes of action arising on or after July 1, 1986, and the Legislature intended for a subsequent amendment to have an October 1, 1987, effective date. Although, the cause of action accrued in September 1986, the case was not filed until after the effective date of the change in punitive damages. "The establishment or elimination of such a claim is clearly a substantive, rather than procedural, decision of the legislature because such a decision does, in fact, grant or eliminate a right or entitlement." Id. at 1358. The limitation of non-economic damages in this case is no less a substantive decision than a limitation on punitive damages as demonstrated in Mancusi.

This court has recently examined in detail when a law change has affected a vested or substantive right, or merely an inchoate or procedural right. "Florida law is well established that the right to sue on an inchoate cause of action—one that has not yet accrued—is not a vested right because no one has a vested right in the common law, which the Legislature may substantively change prospectively." Williams v. Am. Optical Corp., 985 So.2d 23, 30 (Fla. 4th DCA 2008); see also Clausell v. Hobart Corp., 515 So.2d 1275, 1275-76 (Fla.1987). The other end of the "spectrum" is a "cause of action that has evolved into a money judgment. Here the right is indeed vested and may not be abrogated by legislation." Am. Optical Corp., 985 So.2d at 27.

Our court then looked at the instances that occur in the "spectrum" between the two prior manifest situations.

In these stages, an act or event has already occurred affecting a claimant and has been transformed into an accrued right to sue. Suit may not yet have been brought, on the one hand; or suit may have already been brought, on the other hand, but no outcome has been reached in any litigation. As it turns...