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                In Franks v. Bowers, a landmark decision involving medical malpractice arbitration provisions, the Florida Supreme Court yesterday (June 20, 2013) struck down a medical malpractice arbitration provision that differed substantially from Florida's statutory arbitration provision and violated public policy.  The case involved the wrongful death of Joseph Franks, a patient of Gary Bowers, M.D. at North Florida Surgeons, P.A.

                I attended the investiture of Judge Alan Fine today.  It was a remarkable event.  A testament to a man who is well loved and highly regarded, the event was natural, down to earth, and sincere.  Multiple speakers from Judge Fine's life came and expressed their admiration and their love for him.  They extolled his intellect, his perseverance, his success, and even his good looks.  But most importantly, they extolled his judicial demeanor and his judicial mindset.  Speaker after speaker conf

                 The Florida Supreme Court this week, in Samples v. Florida Birth Related Neurological Injury Compensation Association, upheld the constitutionality of Florida's $100,000 non-economic damage cap for babies who suffer brain injuries due to medical malpractice during labor and delivery.  The court, split 4-3, concluded that the statutory scheme known as NICA (it creates the "Neurologic Injury Compensation Association") satisfies constitutional scrutiny because it provides a reasonable alternative remedy to the civil justice system for brain injured babies.  The no-fault NICA system enables injured claimants to recover money for economic losses plus the $100,000 non-economic cap, on a no-fault basis, if they suffered a qualifying neurological injury during labor, delivery, or resuscitation in the immediate post delivery period in a hospital.

                Recently, there has been news and debate over nursing home legislation.  Over the past few years, nursing home neglect made its way into the public domain as The Miami Herald and other news outlets exposed the state of affairs in many of Florida's nursing homes and assisted living facilities ("ALFs").  Today, as I write this, there is legislation proposed in Tallahassee that seeks to increase government regulation of nursing homes with the hope of making nursing homes safer, cleaner, and more accountable.  Despite the legislation's good intentions, the Florida legislature is likely to let if fail. 

                In truth, the problem with nursing home safety and accountability has a much easier, less costly, and less bureaucratic solution than granting more power to the state's Agency for Health Care Administration: our civil justice system.  If we really want to improve the conditions at nursing homes and ALFs, the solution is simple: (a) eliminate the pervasive arbitration provisions nursing homes and ALFs require of their residents that extinguish the residents' rights to jury trials in negligence cases and seek to cap damages against nursing homes; (b) require nursing homes and ALFs to carry a minimum of $5 million of liability insurance; (c) eliminate the shell game of corporate ownership at nursing homes and ALFs so that anyone who owns or operates such a facility is subject to liability for their  nursing home's/ALF's negligence and for any attempt to put profits over safety; (d) create an enforceable attorney's fee provision for all cases against nursing homes and ALFs; (e) eliminate any damages caps, including punitive damage caps, that might ever apply to the negligent (or worse) conduct of nursing home or ALF facilities. Our state's trial bar and civil jury pool can and would fix this problem in a hurry.

"I meant what I said, and I said what I meant.  An elephant's faithful, one hundred percent!"

--Horton the Elephant            

                I loved Horton as a kid, and my kids loved him too.  For some reason, over the past few years, whenever I pondered the cigarette industry's challenge to the Florida Supreme Court's Engle opinion, I found myself repeating the elephant's famous line from the Dr. Seuss book Horton Hatches the Egg.  It is a silly book and the elephant is a silly character.  Clearly, most of us, including me, view the Suprme Court as an august and serious body.  But the silliness of the industry's challenge evokes silly images.  And so, like Horton the Elephant, the Florida Supreme Court, in Philip Morris USA, Inc., et al. v. Douglass, 2013 WL 978259 (Fla. 2013), made it clear that it meant what it said in Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla. 2006).    

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