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October 17, 2017 Practice Points

Florida Medical Malpractice Claims: Elimination of Noneconomic Damages Caps

Independent reevaluation involving reweighing of legislative findings is a rare endeavor for the Florida Supreme Court.

By James Bush and James Edgar

On June 8, 2017, the Florida Supreme Court decided North Broward Hospital District v. Kalitan, No. SC15-1858, 2017 WL 2481225, at *1, *8 (Fla. June 8, 2017) and, in conjunction with Estate of McCall v. United States, 134 So. 3d 894 (Fla. 2014), eliminated all statutory noneconomic damages caps in Florida medical malpractice claims. In each decision, the court examined the constitutionality of the damages caps on equal protection grounds, weighing and ultimately rejecting the findings of the Florida legislature. The Florida Supreme Court’s decisions in these cases are significant as wholesale reevaluation of legislative findings by the judicial branch to invalidate an entire enactment is relatively rare.  

Estate of McCall v. United States
In McCall, the plaintiff estate filed suit in 2005 against the United States, alleging medical malpractice and wrongful death damages after the decedent, McCall, unexpectedly died during labor induced by U.S. Air Force physicians. Though the estate prevailed, the U.S. District Court for the Northern District of Florida applied Florida’s statutory medical malpractice noneconomic damages cap, Fla. Stat. § 766.118 (2011), to limit recovery of such damages to $1 million.

On appeal, the Eleventh Circuit certified questions to the Florida Supreme Court on the constitutionality of the statutory caps on equal protection grounds, among others.

In a near-100-page opinion, the Florida Supreme Court held that damages caps in wrongful death medical malpractice claims violated the equal protection guarantees of the Florida Constitution. In a close plurality opinion, the court identified disparate treatment among wrongful death claimants alleging medical malpractice and those claimants whose wrongful death claims arose from other torts, noting that the latter were entitled to uncapped awards.

Applying the rational basis test, the court conducted an independent analysis of the Florida legislature’s findings supporting the statutory caps. In doing so, it found that the stated justification for the caps—a medical malpractice crisis—no longer existed. Thus, in the absence of a crisis, the court reasoned that there remained no rational basis to limit wrongful death damages arising from medical malpractice disparately. The holding suggested a similar fate for not just for wrongful death claims but also for all other claims for medical malpractice.

North Broward Hospital District v. Kalitan
In Kalitan, the plaintiff originally filed suit in 2008, alleging she sustained a perforated esophagus while undergoing carpal tunnel surgery, resulting in permanent impairment but not death. The plaintiff prevailed on her claims: a Broward County jury awarded her $4 million for her injuries. The trial court then reduced the award, pursuant, in part, to the noneconomic damages caps listed in Fla. Stat. § 766.188.

On appeal to Florida’s Fourth District Court of Appeal, Kalitan challenged the constitutionality of the damages caps, citing McCall. The Fourth District agreed, holding the cap unconstitutional pursuant to McCall.

An appeal to the Florida Supreme Court followed. On June 8, 2017, the Florida Supreme Court issued its opinion after hearing arguments on June 9, 2016. Extending the reasoning of McCall beyond wrongful death claims, the court now held that the statutory caps violated equal protection guarantees in all medical malpractice cases. It reasoned that the caps were unconstitutional as they “arbitrarily reduce[d] damage awards for plaintiffs who suffer the most drastic injuries [and because] there [was] no evidence of a continuing medical malpractice insurance crisis justifying the [caps].” Kalitan, No. SC15-1858, 2017 WL 2481225, at *8. The decision, in conjunction with McCall, fully overturned all noneconomic damages caps in Florida medical malpractice cases.

Reevaluation of Legislative Findings
Independent reevaluation involving reweighing of legislative findings is a rare endeavor for the Florida Supreme Court. In the past 50 years, the court has rather sparingly questioned legislative factfinding to strike down entire enactments. See, e.g., Archer v. Marshall, 355 So. 2d 781 (Fla. 1978); Moore v. Thompson, 126 So. 2d 543 (Fla. 1960); Miles Labs v. Eckerd, 73 So. 2d 680 (Fla. 1954).

Typically, such cases earn a sharp rebuke by the dissent, and McCall and Kalitan maintained this trend. In Kalitan, renewing similar dissent from McCall, Justice Ricky Polston stated, “The majority just discards and ignores all of the Legislature's work and fact-finding. But, under our constitutional system, it is the Legislature, not this Court, that is entitled to make laws as a matter of policy based upon the facts it finds.” Kalitan, No. SC15-1858, 2017 WL 2481225, at *10 (Polston, J., dissenting).

Other states, such as California, have evaluated similar damages caps, specifically declining to apply the rationale set out in McCall and Kalitan. See, e.g., Chan v. Curran, 237 Cal. App. 4th 601, 620–21, 188 Cal. Rptr. 3d 59, 74 (2015), review denied (Sept. 23, 2015). Thus, whether the approach of the Florida Supreme Court represents a regular and periodic occurrence or simply a new trend in Florida remains to be seen.

James Bush is a senior litigation attorney with the Florida Board of Governors Self-Insurance Programs and provides counsel to insured medical providers and academic medical centers within the State University System of Florida. James Edgar is a second-year law student at the University of Florida Levin College of Law.

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