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Hot Coffee Update: Democracy’s Big Florida Test as Supreme Court Hears Med Mal Caps Challenge on February 9, 2012

Something is wrong in America. What’s wrong is uncontrolled corporate greed. Enough is enough. They had their way in the Bush years. And they did their damage. It is now time to reset democracy. This is the first in a series of updates on the status of our legal rights around the country. First stop: my home state of Florida. Hot Coffee is an award winning HBO documentary about corporate America’s successful, high dollar campaign to mislead Americans and destroy consumer and patient rights in our country. It is a must see movie for anyone who cares about our democracy and our justice system in America. If something does not change, big corporations, big insurance companies, big medicine, and big tobacco will hijack our justice system, making it impossible to hold them accountable for injuries they cause our friends and family members. As Hot Coffee demonstrated, tort reform swept our country, in large part due to the efforts of the brothers Bush. In Florida, Governor Jeb Bush spearheaded legislation that capped damages in medical malpractice cases thereby preventing the most catastrophically injured victims of medical neglect from recovering full damages. The assault on catastrophically injured victims of malpractice was supposed to end frivolous litigation. Instead, it ended or severely limited the legal rights of those in dire need of a legal remedy; people with amputations, paralysis, vegetative brain injuries, quadriplegia, and death. These are the very people who most scared the big moneyed interests. They were way more afraid of the real, meritorious cases brought by people who were true victims of negligence. They were not scared of the frivolous cases because those cases, however abundant, posed no financial risk. So, they lied to us. They told us they wanted to end frivolity. We bought it. And we watched as they assaulted justice, lined their own pockets, and stripped the rights of legitimate malpractice victims with devastating injuries. They did not end frivolous litigation; they curtailed and ended meritorious litigation. It was cynical and it was wrong.

But the Florida Supreme Court, on February 9, 2012, will hear oral argument on whether this Bush era tort reform violates the constitution.

I believe it most certainly does. The Bush legislation of 2003, capping medical malpractice plaintiff damages at anywhere from $500,000 to $1.5 million depending on the case, makes it certain that only those people with minor, less devastating injuries will receive full compensation. The people most in need are segregated out and treated unfairly as compared to everyone else. This is a violation of the Equal Protection Clause. Also, why is the legislature, not a jury of well intentioned Floridians, deciding limits like this? Are we not all entitled to a jury trial, and to have jurors decide our cases based on the evidence. The Bush legislation is a violation of our right to a jury trial and to access the courts.

Also, how is it that a legislature and a governor who are politically motivated to hurt trial lawyers and protect big business and big hospitals and big medical malpractice insurance companies are qualified to act as a quasi judicial branch of government, determining the amount of damages in a cases now 9 years later? Cases where these elected officials have no idea what happened, who the parties are, or what the evidence is? This is a violation of the separation of powers provision of our constitution. Legislatures get to make laws, but they don’t get to decide verdicts or the outcome of cases that are brought pursuant to those laws. There are boundaries. And it is the Supreme Court’s job to set and regulate the boundaries. The legislature overstepped the line. Let’s hope the Court puts it back in its place. Let’s hope the Court stands up for democracy, a our system of three branches where everyone, even the rich and powerful, have to play by the same rules.