Fourth District Rejects Retroactive Application Of Statute Of Limitation In Pain And Suffering Lawsuit

UPDATE: On November 7, 2011, the Florida Supreme Court released THIS order and declined to review the Fourth District's decision discussed below. The Palm Beach Post published THIS article on November 9, 2011, about the Florida Supreme Court's order. The order stated:

Upon review of the response(s) to this Court's order to show cause dated September 1, 2011, the Court has determined that it should decline to accept jurisdiction in Case Nos. SC09-2153 and SC09-2154. Therefore, the petition for discretionary review is denied and the appeal is dismissed. See American Optical Corp. v. Spiewak, 36 Fla. L. Weekly S435 (Fla. 2011)....

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In Raphael v. Shecter (4D08-432), the Fourth District reviewed "whether a statute that limits the non-economic damages of a plaintiff can be applied retroactively."  This case was previously discussed in this post.  The lawsuit related to the alleged failure by a doctor to timely administer anti-clotting drugs.

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 litigation was sent and the suit was filed in 2005, nearly two years after this statute became effective on September 15, 2003.

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Throughout history, courts and legal commentators have generally looked with disapproval and extreme caution at the retroactive application of laws...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.”

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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...However, the Legislature’s clear intent to modify and allow new damages retroactively is not necessarily dispositive.

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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.  The court reasoned that, generally, “retroactive abolition of substantive vested rights is prohibited by constitutional due process considerations.”

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Although a substantive statute will not operate retrospectively, the general rule is that a procedural or remedial statute may operate retrospectively...Substantive law prescribes “duties and rights” and procedural law amendments concern “means and methods."...“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....In this case, the incident of medical malpractice occurred on April 10, 2003, and the claimant did not file an action for damages until after the new legislation substantively affecting this cause of action became effective, on September 15, 2003. Here, as in Mancusi, the new statute may not be retroactively applied to the cause of action which accrued previously. Id at 28. Section 776.118(4), Florida Statutes, cannot be retroactively enforced to impair the appellant’s vested rights.

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We find that the retroactive application of section 766.118(4) does not pass the test set out in Chase Federal and Old Port Cove, because it is an impairment of the substantive and vested rights of the appellant for the cause of action which accrued and vested on April 10, 2003.

Disclaimer: George N. Meros and GrayRobinson, P.A. filed an amicus brief in this appeal.