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Gov. Scott’s and the Florida Legislature’s Remedy for Medicaid Patients: “Let Them Eat Cake!”

“Let them eat cake!” These are the notorious words attributed to Marie Antoinette, the Queen of France and scion of elitist French society at the dawn of the French revolution. The words are associated with the aristocracy’s utter disdain for the underclass, working class poor in 18th century France. Then came the French Revolution, on the heels of the American Revolution. A new age was born where the interests of the working class would gain equal foothold with those of the power elite. It was a new age, the age of modern democracy.

Fast forward over two hundred years to modern day Florida. Governor Rick Scott, worth hundreds of millions of dollars after years as a health care executive, and the Florida legislature, heavily influenced by big money donors, are now in power in Florida. The interests of the power elite — large private hospitals, industry, big tobacco, and big business — rule the day. A modern day aristocracy has taken hold in Tallahassee. And they are passing laws that take direct aim at Florida’s poor and underprivileged. For example, take a look at Florida Statutes section 766.118(6).

As they concluded the legislative session in 2011, they came up with a law that sticks it to Florida’s poor. It would make Marie Antoinette proud. Florida Statues section 766.118(6) now makes it illegal for a Medicaid patient who is maimed or killed due to medical malpractice to recover more than $300,000 in noneconomic losses. This only applies to Medicaid patients. In black and white, this law chooses to discriminate against the poor, limiting their recovery, and making it almost impossible for them or their survivors to pursue a medical malpractice case against a wayward health care provider or hospital.

Talk about kicking them when they’re down!
The constitutional problems with this law include all the standard arguments regarding damage caps: unlawful restriction on the right to trial by jury; unlawful restriction on the right to access the courts; unlawful violation of the separation of powers/infringement by the legislature on the judicial branch’s role, also known as “legislative remittitur.”

But the Constitution, state and Federal, is also supposed to guarantee equal protection of the law. Permanently inscribed above the United States Supreme Court’s entry pediment are the words “Equal Justice Under Law.” The Equal Protection implications scream out from the words of this statute. Medicaid recipients are not entitled to equal protection of our laws now that section 766.118(6) is in place. It is hard to fathom how any Florida court can uphold this provision. I can imagine very few laws that more directly interfere with the founding principles of American democracy and American justice.

There is also the issue of retroactivity. This law, passed in 2011, has an effective date of July 1, 2011. Will it be applied retroactively? Not if the Florida courts follow American Optical Corp. v. Spiewak, 73 So. 3d 120 (Fla. 2011), where the Florida Supreme Court held that retroactive application of a tort statute cannot be upheld if it would deprive people of their vested rights. “This Court will not apply a statute retroactively if it ‘impairs vested rights, creates new obligations, or imposes new penalties.'” Id. at 131 (citing State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So. 2d 55, 61 (Fla. 1995) and McCord v. Smith, 43 So.2d 704, 708-09 (Fla. 1949)).

So, for those Medicaid patients whose doctors or hospitals maimed or killed them before July 1, 2011, this Draconian law will not apply. But for the rest of Florida’s Medicaid population, if you are maimed or killed by your doctor or hospital, well, get someone in your family to learn how to bake. Or hope that the Florida Supreme Court holds the legislature and the governor accountable for their actions, upholds the constitution, and kicks this law out.