Florida Supreme Court Strikes Down Non-Economic Damage Cap on Wrongful Death Medical Malpractice Claims
March 20, 2014
A sharply divided Florida Supreme Court ruled on March 13 that section 766.118 of Florida Statutes, the statutory cap on non-economic damages in medical malpractice claims, violates the right to equal protection under the Florida Constitution although it explicitly limited its holding to wrongful death claims only. As a result, Florida health care providers no longer have any statutory protection against unlimited awards of non-economic damages in medical malpractice claims involving a wrongful death, but section 766.118 still operates to limit the amount of non-economic damages that can be awarded on medical malpractice claims not involving wrongful death. However, it is anticipated that plaintiffs will seek to use the rationale of the decision to attack section 766.118 as it applies to non-wrongful death cases as well.
The decisive majority was divided into two camps a plurality opinion authored by Justice Fred Lewis and a concurring-in-result opinion authored by Justice Barbara Pariente. They agreed on the overarching principle that aggregate caps on non-economic damages violate equal protection when applied without regard to the number of claimants entitled to recovery. They also agreed on the somewhat dubious proposition that the cap on non-economic damages did not bear any rational relationship to the stated purpose of the cap, alleviating the medical malpractice insurance crisis.
The dissenting opinion, authored by Justice Ricky Polston, sharply disagreed with both conclusions, arguing that the Legislature’s policy choice of enacting a cap on non-economic damages was rationally related to the legitimate state interest of decreasing medical malpractice insurance rates and increasing the affordability and availability of health care in Florida. Under the properly applied “rational basis” test, the dissent concluded, the cap does not violate the right of equal protection under the Florida Constitution. The dissent critiqued the plurality opinion for misapplying the “rational basis” test for legislation that does not discriminate against a protected class, and engaging in a de novo review of the legislative factual findings regarding the existence of a medical malpractice insurance crisis and the likelihood that non-economic damage caps would lead to reduced malpractice premiums, rather than accepting the legislative factual findings absent evidence that they were “clearly erroneous.”
The case is McCall v. U.S., SC11-1148.
Analysis
Florida health care providers and insurers should brace for a future that does not include any caps on non-economic damages in any medical malpractice claim. Five of the seven justices announced their endorsement of the broad proposition that aggregate caps on non-economic damages violate equal protection when applied without regard to the number of claimants entitled to recovery. It therefore appears highly likely that the Florida Supreme Court, as currently constituted, would hold in a future case that the remainder of section 766.118 including the non-economic damage caps on medical malpractice claims involving personal injuries is also unconstitutional.
It appears possible that a differently worded statute, imposing caps on a per-claimant rather than an aggregate per-incident basis, might survive scrutiny by the current Florida Supreme Court. This may provide an avenue for legislative action to preserve the non-economic damage caps for the future.
About Edward J. Carbone, Florida Medical Malpractice Defense Attorney
Ed Carbone is the partner in charge of the medical malpractice group at the Florida defense law firm of Roig, Tutan, Rosenberg, Martin & Stoller, P.A. He is AV® Rated by Martindale-Hubbell, and is listed in the Best Lawyers in America (2013-2014) directory.
Prior to joining the firm, Ed was a shareholder in the Tampa office of Carlton Fields. He represents a wide variety of healthcare providers, including hospitals, physicians, and hospice services, in federal, state, and appellate courts. His litigation experience includes the defense of claims involving medical malpractice, birth injury, catastrophic brain injury, wrongful death, and the collection of medical debt. He can be reached at 813-514-1865.