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Legal Alert: Florida Supreme Court Zaps Medical Malpractice Caps on Damages

June 29, 2017

The Florida Supreme Court has now confirmed that the caps on noneconomic damages under section 766.118, Florida Statutes (2011), are unconstitutional and invalid as applied to both personal injury and wrongful death medical negligence actions.[1]

Section 766.118 Florida Statutes provides a range of caps on noneconomic damages in both personal injury and wrongful death medical negligence actions, from $500,000 to $1,500,000 in the aggregate, regardless of the number of claimants.  In Kalitan, the Florida Supreme Court considered an appeal from the Fourth District Court of Appeal, where the court held that these statutory caps on noneconomic damage awards in personal injury medical malpractice actions are unconstitutional, relying on the Florida Supreme Court’s 2014 decision in Estate of McCall v. U.S.[2] In McCall, the Florida Supreme Court held that the caps on wrongful death noneconomic damages violate the Equal Protection Clause of the Florida Constitution.[3]

Kalitan arose out of permanent injuries sustained by the plaintiff following complications during her carpal tunnel surgery, including a perforated esophagus, drug-induced coma, and resulting disabilities and pain and suffering.  The jury awarded the plaintiff $4,718,011 in total damages, $4,000,000 of which comprised noneconomic damages.  The trial court rejected the plaintiff’s challenge to the noneconomic damages caps under section 766.118, and reduced the award by close to $3,300,000.  The Fourth District reversed the trial court’s reduction of damages, and directed the court to reinstate the total damages.[4]  The Fourth District determined that the Florida Supreme Court’s decision in McCall was controlling and that the noneconomic damages caps under §766.118 are unconstitutional.  Specifically, the court adopted the Florida Supreme Court’s rationale, holding that the caps do not serve a legitimate state interest, and thus do not pass the rational basis test under the Equal Protection Clause of the Florida Constitution.[5]

In McCall, five justices of the plurality and concurring opinions agreed that the statutory caps on wrongful death noneconomic damages under section 766.118 violate the right to equal protection guaranteed by the Florida Constitution.  The plurality opinion, written by Justice Lewis and joined by Justice Labarga, began by addressing the arbitrary distinction between multiple claimants and single claimants under the statutory scheme.  Specifically, the Court explained that in a case with multiple survivors, their damages were reduced simply because the caps imposed an aggregate recovery, regardless of the number of claimants.  Therefore, the cap “irrationally impacts circumstances which have multiple claimants/survivors differently and far less favorably than circumstances in which there is a single claimant/survivor…”[6]

Further, pursuant to the first prong of the rational basis test, the Court challenged whether the statute served a legitimate governmental purpose.  The Court concluded that the Legislature’s determination that the increase in medical malpractice liability insurance rates is causing a ‘crisis’ in Florida, resulting in medical professionals leaving Florida or retiring early, was unsupported.[7] The plurality opinion also held that there was no rational relationship between the caps and alleviating the purported crisis.[8]  Finally, the plurality discussed the current status of medical malpractice in Florida, and noted there is no evidence based on current data to reflect such a crisis. Thus, even if a rational basis existed at the time of enactment, at the present time the cap “serves no purpose other than to arbitrarily punish the most grievously injured or their surviving family members.”[9]

In Kalitan, the Florida Supreme Court adopted the rationale of McCall, explaining that the noneconomic damage caps as applied to personal injury claims also violate the Equal Protection Clause of the Florida Constitution because there is no rational basis to impose a noneconomic damages cap in medical negligence actions. 

In light of Kalitan, the only noneconomic damages caps in medical malpractice actions yet to be considered by the Florida Supreme Court are the caps imposed under Florida Statutes sections 766.207 and 766.209.  These caps impose caps on noneconomic damages in medical malpractice actions submitted to voluntary arbitration of $250,000 per incident, per claimant.  If a claimant rejects a defendant’s offer to enter voluntary arbitration, the noneconomic damages are capped at $350,000 per incident, per claimant.

Although these caps have been interpreted to impose a “per claimant, per incident” cap[10], and therefore may not present the same “arbitrariness” concerns as the caps under section 766.118, they are still subject to the rational basis review outlined in McCall and Kalitan.  Accordingly, because the Florida Supreme Court has determined that the statutory noneconomic damages caps in medical malpractice actions no longer serve a legitimate state interest, the arbitration caps may also ultimately be deemed unconstitutional.  The constitutionality of the arbitration caps has yet to be directly addressed by an appellate court following McCall, and awaits a case ripe for review.[11]  

[1] N. Broward Hosp. District et. al. v. Kalitan, Case No. SC15-1858, 2017 WL 2481225, (Fla. June 8, 2017).

[2] 134 So. 3d 914 (Fla. 2014).

[3] Art. I, section 2, Fla. Const.

[4] N. Broward Hosp. District et. al. v. Kalitan, 174 So. 3d 403, 413-414 (Fla. 4th DCA 2015).

[5] Id. at 411-412.

[6] Id. at 901-02.

[7] McCall, 134 So. 3d at 909  

[8] Id. 

[9] Id. at 914-15.

[10] St. Mary’s Hosp., Inc. v. Phillipe, 769 So. 2d 961 (Fla. 2000).

[11] See, e.g., Dean v. Div. of Admin. Hearings,  92 So. 3d 36 (Fla. 2015).

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