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Summer 2014
IN THIS ISSUE
d&G Lawyer News

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  • Case Law Update: Estate of Michelle E. McCall, et. al. v. United States of America, 134 So.3d 894 (Fla. 2014)
  • By: Eric D. Nowak

    In case you hadn’t heard, the Florida Supreme Court has dramatically altered medical malpractice law in Florida by ruling that the caps adopted by the legislature under 766.118 violate the equal protection clause in the Florida Constitution. Id. at 901. The statute caps non-economic damages in any medical malpractice case against a practitioner (Physicians, Chiropractors, Dentists, etc.) i at $1,000,000 for a negligent act resulting in death and $500,000 for a negligent act that does not result in death. These caps apply regardless of the number of claimants. In other words, if a negligent act of a physician results in death and the person leaves 5 minor children and a spouse, the total amount of money that could be awarded for their pain and suffering would be $1,000,000. Similarly, if physician’s negligent act results in death and the decedent only had a surviving spouse, the surviving spouse would also be entitled to an award of $1,000,000 in non-economic damages.

    In McCall, there were three survivors who were entitled to claims for non-economic losses, Mrs. McCall’s son and both of her parents. Id. at 899. The trial court found that Mrs. McCall’s son suffered $500,000 in non-economic damages and that her parents each suffered $750,000 in non-economic damages, for a total of $2 million in non-economic damages. Id. The trial court thereafter applied Section 766.118 and lowered these awards to total of $1 million in non-economic damages. Id. The Florida Supreme Court held that the application of the cap in this case violates Florida’s Equal Protection clause and stated:

    The statutory cap on wrongful death noneconomic damages fails because it imposes unfair and illogical burdens on injured parties when an act of medical negligence gives rise to multiple claimants. In such circumstances, medical malpractice claimants do not receive the same rights to full compensation because of arbitrarily diminished compensation for legally cognizable claims. Further, the statutory cap on wrongful death noneconomic damages does not bear a rational relationship to the stated purpose that the cap is purported to address, the alleged medical malpractice insurance crisis in Florida.

    Id. at 901.

    Interestingly, the Court stated in a footnote that “…the legal analyses for personal injury damages and wrongful death damages are not the same. The present case is exclusively related to wrongful death, and our analysis is limited accordingly.” Id. at FN2. The court also chose not to answer three other questions certified to it by the 11th Circuit: (1) whether the cap on damages violates the right to a jury trial under article I, section 22 of the Florida Constitution; (2) whether the cap violates the right to access the courts under article I, section 21 of the Florida Constitution; and (3) whether the cap violates the separation of powers doctrine.

    Nevertheless, the Supreme Court thoroughly analyzed the legislative justifications for the adoption of the caps on damages under 766.118 and found that the caps bear no rational relationship to a legitimate state objective and found that the statute fails the rational basis test. Id. at 901. When the caps on medical malpractice non-economic damages were adopted the governmental interest that allegedly supported their adoption was to avert a medical malpractice insurance crisis. Id. at 906. At the time, the Legislature asserted that increases in medical malpractice insurance premiums were caused by large medical malpractice lawsuits/verdicts. This in turn was allegedly causing physicians to leave Florida, retire early, and refuse to perform high-risk procedures and, ultimately, limiting Floridians’ access to health care. Id. The Supreme Court held that the available data showed that at the time the Legislature adopted the caps, there was no such medical malpractice insurance crisis. The court noted that from 1991 to 2001 the number of physicians in Florida actually grew from 214 to 237 per 100,000 people in metropolitan areas and from 98 to 117 per 100,000 persons in non-metropolitan areas. Id. Additionally, the court stated that there was evidence available to the Legislature at the time it adopted the caps to show that of the medical malpractice payments made by insurance companies over $1 million only 7.5% resulted from a jury verdict. Id. at 907. Also, in the cases where a verdict was rendered for $4 million or more, the cases ended up settling post-verdict, on average, for 37% less than the verdict itself. Id. The Court found that there was evidence to suggest that the cause of high medical malpractice premiums was instead a result of the underwriting cycle in the insurance industry. Id. The Supreme Court noted that the justification for the caps on damages “… is dubious and questionable at the very best.” Id. at 909. The Court also concluded that even if there was a crisis in medical malpractice insurance premiums when the caps were adopted, currently, there is no longer any crisis. Id. at 913-15.

    The Supreme Court also concluded that even if there was a medical malpractice insurance premium crisis which was causing a physician shortage, that there was no evidence to suggest to the Legislature that the caps on damages would alleviate this crisis. Id. at 910. Data shows that from 1991 to 2002 the insurance premiums in states with caps on damages rose at a higher rate than in states that did not have caps on damages (48.2 percent rise in states with caps and 35.9 percent rise in states without caps). Id. Similarly, there was a decline in insurance premiums after the adoption of caps in only 10 percent of states with caps on medical malpractice damages. Id. Conversely, in states without caps, 18.7 percent of states experienced a decline in medical malpractice premiums. Id. Ultimately, the Court concluded that there was simply no legitimate relationship between lowering medical malpractice insurance premiums and the caps on wrongful death damages adopted by the Legislature. Id. at 912.

    While the court limited its holding to the facts before it, future cases will be able to use the plurality’s reasoning to support challenges to the caps on damages in other cases. Much of the plurality’s reasoning will likely be employed in cases challenging caps on damages for limiting those parties’ right to a jury trial and limiting their right to access the courts. At this point, it is unclear whether caps on damages will be held unconstitutional in other circumstances, but it is certain that future legal challenges to these caps on damages are on the horizon. Regardless, the McCall case represents a shift in the law and one that all injured patients and medical providers should be aware of.

    A full copy of the McCall decision can be found here: http://www.dgfirm.com/pdf/sc11-1148.pdf

    Eric Nowak practices primarily in general civil litigation. He can be reached at enowak@dgfirm.com or (813) 229-2775.

    i Under 766.118(1)(c), Florida Statutes, “‘Practitioner’ means any person licensed under chapter 458, chapter 459, chapter 460, chapter 461, chapter 462, chapter 463, chapter 466, chapter 467, or chapter 486 or certified under s. 464.012. ‘Practitioner’ also means any association, corporation, firm, partnership, or other business entity under which such practitioner practices or any employee of such practitioner or entity acting in the scope of his or her employment. For the purpose of determining the limitations on noneconomic damages set forth in this section, the term ‘practitioner’ includes any person or entity for whom a practitioner is vicariously liable and any person or entity whose liability is based solely on such person or entity being vicariously liable for the actions of a practitioner.”

    ii 766.118, Florida Statutes also provides a cap on non-economic damages for claims against non-practitioners (hospitals, clinics, etc.). §766.118(3), Fla. Stat. That cap is $750,000 per claimant and $1.5 million in the aggregate, regardless of the number of claimants and regardless of the number of non-practitioner defendants. §766.118(3)(a) - (d), Fla. Stat.

    iii McCall was a Federal Tort Claims Act case, so there was not a jury and the damages were determined by the trial court judge.

    iv This conclusion was joined by a majority of the Court, but some of the latter reasoning behind the decision was only joined by a plurality.

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