39 Fla. L. Weekly S104a
Wrongful death — Medical malpractice — Noneconomic damages
— Statutory cap on wrongful death medical malpractice noneconomic damages
violates the Equal Protection Clause of the Florida Constitution
AMERICA, Respondent. Supreme Court of Florida. Case No. SC11-1148. March 13,
2014. Certified Question of Law from the United States Court of Appeals for the
Eleventh Circuit – Case No. 07-00508CV-3-MCR/EMT.
law certified by the United States Court of Appeals for the Eleventh Circuit
that are determinative of a cause pending in that court and for which there
appears to be no controlling precedent. We have jurisdiction. Art. V, § 3(b)(6),
Fla. Const. In Estate of McCall v. United States, 642 F.3d 944 (11th Cir.
2011), the Eleventh Circuit certified the following questions:
(1) DOES THE STATUTORY CAP ON NONECONOMIC DAMAGES, FLA. STAT. §
766.118, VIOLATE THE RIGHT TO EQUAL PROTECTION UNDER ARTICLE I, SECTION 2 OF THE
FLORIDA CONSTITUTION?
(2) DOES THE STATUTORY CAP ON NONECONOMIC DAMAGES, FLA. STAT. §
766.118, VIOLATE THE RIGHT OF ACCESS TO THE COURTS UNDER ARTICLE I, SECTION 21
OF THE FLORIDA CONSTITUTION?
(3) DOES THE STATUTORY CAP ON NONECONOMIC DAMAGES, FLA. STAT. §
766.118, VIOLATE THE RIGHT TO TRIAL BY JURY UNDER ARTICLE I, SECTION 22 OF THE
FLORIDA CONSTITUTION?
(4) DOES THE STATUTORY CAP ON NONECONOMIC DAMAGES, FLA. STAT. §
766.118, VIOLATE THE SEPARATION OF POWERS GUARANTEED BY ARTICLE II, SECTION 3
AND ARTICLE V, SECTION 1 OF THE FLORIDA CONSTITUTION?
rephrase the first certified question as follows:
DOES THE STATUTORY CAP ON WRONGFUL DEATH NONECONOMIC DAMAGES, FLA.
STAT. § 766.118, VIOLATE THE RIGHT TO EQUAL PROTECTION UNDER ARTICLE I, SECTION
2 OF THE FLORIDA CONSTITUTION?
affirmative and hold that the cap on wrongful death noneconomic damages provided
in section 766.118, Florida Statutes, violates the Equal Protection Clause of
the Florida Constitution. We find it unnecessary to answer the remaining
certified questions because Florida’s Wrongful Death Act is of statutory origin,
and the present case is under the Federal Tort Claims Act and its procedures.
FACTS AND PROCEDURAL HISTORY
action filed by the estate of Michelle McCall, Ms. McCall’s parents, and the
father of Ms. McCall’s son (Petitioners) against the United States:
During June 2005, Michelle McCall received prenatal medical care at
a United States Air Force clinic as an Air Force dependent. Ms. McCall opted for
the Air Force’s family practice department to provide primary prenatal care and
delivery services throughout her pregnancy. She had a healthy and normal
pregnancy until the last trimester. On February 21, 2006, test results revealed
that Ms. McCall’s blood pressure was high and that she was suffering from severe
preeclampsia. Ms. McCall’s serious condition required that labor be induced
immediately.
Instead of transferring Ms. McCall to the OB/GYN department, the
family practice department continued to provide medical care. The Air Force
hospital was temporarily unavailable for obstetric and delivery services, so
members of the family practice department transferred Ms. McCall to the Fort
Walton Beach Medical Center instead. There, Air Force family practice doctors
treated Ms. McCall for hypertension and induced labor. When Ms. McCall dilated
to five centimeters, her contractions slowed and became weaker. The Air Force
family practice doctors treating Ms. McCall called an Air Force obstetrician,
Dr. Archibald, and asked if he could perform a cesarean section. Dr. Archibald
reported that he was performing another surgery and would not be available to
perform a cesarean section on Ms. McCall until after he finished that surgery.
The Air Force family practice doctors prepared Ms. McCall for a cesarean section
but did not call other obstetricians to determine if one was available to
provide immediate medical care.
On February 22, 2006, Dr. Archibald finally arrived to perform the
cesarean section, but Ms. McCall’s contractions had resumed and the Air Force
family practice doctors decided to allow Ms. McCall to deliver vaginally. Dr.
Archibald left the Fort Walton Medical Center. On February 23, 2006 at 1:25
a.m., Ms. McCall delivered a healthy baby boy. Family members who visited Ms.
McCall after the delivery expressed concerns about the amount of blood Ms.
McCall had lost during delivery. Medical personnel assured these family members
that Ms. McCall was stable.
Thirty-five minutes later, when the placenta had not delivered as
expected, two family practice doctors from the family practice department tried
without success to manually extract the placenta. An Air Force nurse anesthetist
administered additional epidural pain relief and gave Ms. McCall two separate
doses of Morphine intravenously. Around 2:35 a.m., the family practice
department doctors called Dr. Archibald, the obstetrician, for assistance when
they could not remove the placenta manually.
Ms. McCall’s blood pressure began to drop rapidly and remained
dangerously low over the next two and a half hours. The Air Force nurse
anesthetist monitoring Ms. McCall’s vital signs did not notify the family
practice doctors of the drop in Ms. McCall’s blood pressure. Dr. Archibald
arrived at 2:45 a.m. and removed the placenta within five minutes. The family
practice department doctors informed Dr. Archibald that Ms. McCall had not lost
much blood during delivery. Dr. Archibald, however, noticed severe vaginal
lacerations and worked to repair them over the next hour. During that time, the
Air Force nurse anesthetist monitored Ms. McCall’s vital signs, reported to Dr.
Archibald that they were stable, and failed to inform him that Ms. McCall’s
blood pressure was dangerously low and continuing to drop. Dr. Archibald never
checked the vital signs himself and relied exclusively on the nurse to inform
him of any blood pressure changes or problems.
At 3:50 a.m. when Dr. Archibald finished his work, he requested an
immediate blood count and, if needed, a transfusion to compensate for the blood
Ms. McCall lost during the procedure. Forty minutes later, the family practice
department physician ordered the blood count test. Forty minutes after that, and
over an hour after Dr. Archibald had requested immediate blood work, a nurse
attempted to draw blood from Ms. McCall. Ms. McCall was unresponsive. She had
gone into shock and cardiac arrest as a result of severe blood loss. It is not
clear how long Ms. McCall had been in this state, since no one had monitored her
or checked her status for the hour following Dr. Archibald’s procedure. Ms.
McCall never regained consciousness and was removed from life support on
February 27, 2006.
Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-80. Id. at 947. In
addition to finding the United States liable under the FTCA, the United States
District Court for the Northern District of Florida determined that the
Petitioners’ economic damages, or financial losses, amounted to $980,462.40.
Id. The district court concluded that the Petitioners’ noneconomic
damages, or nonfinancial losses, totaled $2 million, including $500,000 for Ms.
McCall’s son and $750,000 for each of her parents. Id.
death noneconomic damages to $1 million upon application of section 766.118(2),
Florida Statutes (2005), Florida’s statutory cap on wrongful death noneconomic
damages based on medical malpractice claims. Id.1 The district court denied a motion filed by the
Petitioners that challenged the constitutionality of Florida’s wrongful death
statutory cap under both the Florida and United States Constitutions. Id.
The district court also denied the Petitioners’ motion to alter or amend the
judgment. Id. at 947-48.
court’s rulings with regard to both the application and the constitutionality of
the cap mandated by Florida law on wrongful death noneconomic damages for
medical malpractice claims. Id. at 948. The Petitioners contended that
the statutory cap violates the Equal Protection Clause of the Fourteenth
Amendment of the United States Constitution and constitutes a taking in
violation of the Fifth Amendment of the United States Constitution. Id.
They also asserted that the cap violates the following provisions of the Florida
Constitution: (1) the separation of powers guarantee in article II, section 3
and article V, section 1; (2) the right to trial by jury under article I,
section 22; (3) the right of access to the courts under article I, section 21;
(4) the right to equal protection under article I, section 2; and (5) the
prohibition against the taking of private property without full compensation
under article X, section 6. Id.
noneconomic damages and held that the statute does not constitute a taking in
violation of article X, section 6, of the Florida Constitution. Id. at
953. The federal appellate court also held that the cap does not violate either
the Equal Protection Clause or the Takings Clause of the United States
Constitution. Id. However, the Eleventh Circuit granted a motion filed by
the Petitioners to certify four questions to this Court regarding the remaining
challenges to the statutory cap under the Florida Constitution. Id.
STATUTORY PROVISION
articulated in section 766.118. Section 766.118(2) states:
(2) Limitation on noneconomic damages for negligence of
practitioners. —
(a) With respect to a cause of action for personal injury or
wrongful death arising from medical negligence of practitioners, regardless of
the number of such practitioner defendants, noneconomic damages shall not exceed
$500,000 per claimant. No practitioner shall be liable for more than $500,000 in
noneconomic damages, regardless of the number of claimants.
(b) Notwithstanding paragraph (a), if the negligence resulted in a
permanent vegetative state or death, the total noneconomic damages recoverable
from all practitioners, regardless of the number of claimants, under this
paragraph shall not exceed $1 million. In cases that do not involve death or
permanent vegetative state, the patient injured by medical negligence may
recover noneconomic damages not to exceed $1 million if:
1. The trial court determines that a manifest injustice would occur
unless increased noneconomic damages are awarded, based on a finding that
because of the special circumstances of the case, the noneconomic harm sustained
by the injured patient was particularly severe; and
2. The trier of fact determines that the defendant’s negligence
caused a catastrophic injury to the patient.
(c) The total noneconomic damages recoverable by all claimants from
all practitioner defendants under this subsection shall not exceed $1 million in
the aggregate.
damages refer to “nonfinancial losses . . . including pain and suffering,
inconvenience, physical impairment, mental anguish . . . loss of capacity for
enjoyment of life, and other nonfinancial losses to the extent the claimant is
entitled to recover such damages under general law, including the Wrongful Death
Act.” § 766.202(8), Fla. Stat. (2005) (incorporated in § 766.118(1)(b), Fla.
Stat. (2005)).
EQUAL PROTECTION
Circuit which addresses whether the cap on wrongful death noneconomic damages
under section 766.118 violates the right to equal protection guaranteed by the
Florida Constitution. The Florida Constitution provides, in pertinent part:
§ 2, Fla. Const. This Court has stated “[t]he constitutional right of equal
protection of the laws means that everyone is entitled to stand before the law
on equal terms with, to enjoy the same rights as belong to, and to bear the same
burden as are imposed upon others in a like situation.” Caldwell v. Mann,
26 So. 2d 788, 790 (Fla. 1946).
Constitution is implicated by the challenged provision, the rational basis test
will apply to evaluate an equal protection challenge. See Amerisure
Ins. Co. v. State Farm Mut. Auto. Ins. Co., 897 So. 2d 1287, 1291 n.2 (Fla.
2005). To satisfy the rational basis test, a statute must bear a rational and
reasonable relationship to a legitimate state objective, and it cannot be
arbitrary or capriciously imposed. Dep’t of Corr. v. Fla. Nurses Ass’n,
508 So. 2d 317, 319 (Fla. 1987). Stated another way, the test for consideration
of equal protection is whether individuals have been classified separately based
on a difference which has a reasonable relationship to the applicable statute,
and the classification can never be made arbitrarily without a reasonable and
rational basis.
conclude that section 766.118 violates the Equal Protection Clause of the
Florida Constitution under the rational basis test. 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.
Arbitrary Distinctions
Phillipe, 769 So. 2d 961 (Fla. 2000), that the type of classification
addressed in this case is purely arbitrary and unrelated to a true state
interest. We clearly announced in Phillipe that aggregate caps or
limitations on noneconomic damages violate equal protection guarantees under the
Florida Constitution when applied without regard to the number of claimants
entitled to recovery. This inherently discriminatory action and resulting
invidious discrimination do not pass constitutional muster. We stated:
If we were to accept St. Mary’s contention that the Legislature
intended to limit noneconomic damages to $250,000 per incident in the aggregate,
then the death of a wife who leaves only a surviving spouse to claim the
$250,000 is not equal to the death of a wife who leaves a surviving spouse and
four minor children, resulting in five claimants to divide $250,000. We fail
to see how this classification bears any rational relationship to the
Legislature’s stated goal of alleviating the financial crisis in the medical
liability industry. Such a categorization offends the fundamental notion of
equal justice under the law and can only be described as purely arbitrary and
unrelated to any state interest.
the present case. The plain language of this statutory plan irrationally impacts
circumstances which have multiple claimants/survivors differently and far less
favorably than circumstances in which there is a single claimant/survivor and
also exacts an irrational and unreasonable cost and impact when, as here, the
victim of medical negligence has a large family, all of whom have been adversely
impacted and affected by the death. Three separate noneconomic damage
determinations were assessed by the federal district court based on the evidence
presented. The damages suffered by Ms. McCall’s parents were determined to be
$750,000 each, and Ms. McCall’s surviving son sustained damages determined to be
$500,000. Applying the cap, the federal court then reduced the amounts of
damages so each claimant would receive only half of his or her respective
damages. Yet, if Ms. McCall had been survived only by her son, he would have
recovered the full amount of his noneconomic damages: $500,000. Here, the
cap delineated in section 766.118 limited the recovery of a surviving child (and
surviving parents) simply because others also suffered losses. In a larger
context, under section 766.118, the greater the number of survivors and the more
devastating their losses are, the less likely they are to be fully compensated
for those losses.
upon a similar rationale. In holding that a $500,000 cap per plaintiff on
noneconomic damages in negligence and product liability actions violated the
state constitution,4 the Supreme Court of
Illinois aptly described how the cap operated to discriminate against claimants
who have suffered the most grievous injuries, while benefitting the tortfeasor
and/or the insurance company:
In the first example . . . three plaintiffs are injured as a result
of the same tortfeasor’s negligence. Plaintiff A is injured moderately, and
suffers pain, disability and disfigurement for a month. Plaintiff B is severely
injured and suffers one year of pain and disability. Plaintiff C is drastically
injured, and suffers permanent pain and disability. . . . [I]t is further
assumed that a jury awards plaintiffs A and B $100,000 in compensatory damages
for noneconomic injuries. Plaintiff C receives $1 million for his permanent,
lifelong pain and disability.
. . . With respect to plaintiff C, [the challenged legislation]
arbitrarily and automatically reduces the jury’s award for a lifetime of pain
and disability, without regard to whether or not the verdict, before reduction,
was reasonable and fair.
The tortfeasors in this example are also treated differently,
without any justification. The tortfeasor who injures plaintiffs A and B is
liable for the full amount of fairly assessed compensatory damages. In contrast,
[the challenged legislation] confers a benefit on the similarly situated
tortfeasor who injures plaintiff C. This tortfeasor pays only a portion of
fairly assessed compensatory damages because of the limitation [on noneconomic
damages]. Therefore, the statute discriminates between slightly and severely
injured plaintiffs, and also between tortfeasors who cause severe and moderate
or minor injuries.
(emphasis supplied). The Supreme Court of New Hampshire condemned on equal
protection grounds a $250,000 cap on noneconomic damages in medical malpractice
cases, concluding that it is “simply unfair and unreasonable to impose the
burden of supporting the medical care industry solely upon those persons who are
most severely injured and therefore most in need of compensation.” Carson v.
Maurer, 424 A.2d 825, 837 (N.H. 1980), overruled on other grounds,
Cmty. Res. for Justice, Inc. v. City of Manchester, 917 A.2d 707, 721
(N.H. 2007).
for many by imposing devastating costs on a few — those who are most grievously
injured, those who sustain the greatest damage and loss, and multiple claimants
for whom judicially determined noneconomic damages are subject to division and
reduction simply based upon the existence of the cap. Under the Equal Protection
Clause of the Florida Constitution, and guided by our decision in
Phillipe, we hold that to reduce damages in this fashion is not only
arbitrary, but irrational, and we conclude that it “offends the fundamental
notion of equal justice under the law.” Phillipe, 769 So. 2d at 972;
see also id. at 971 (“Differentiating between a single claimant
and multiple claimants bears no rational relationship to the Legislature’s
stated goal of alleviating the financial crisis in the medical liability
insurance industry.”).
Florida Birth-Related Neurological Injury Compensation Ass’n, 114 So. 3d 912
(Fla. 2013), Mizrahi v. North Miami Medical Center, 761 So. 2d 1040 (Fla.
2000), or University of Miami v. Echarte, 618 So. 2d 189 (Fla. 1993),
because a review of those cases reveals that they involved statutes or
challenges which are distinguishable from the present challenge to section
766.118. In Samples, the statute at issue created funding and authorized
a $100,000 award to parents under the Florida Birth-Related Neurological Injury
Compensation Plan (the Plan), which was structured with other benefits and
provided compensation without regard to fault for birth-related neurological
injury claims. 114 So. 3d at 914-15; see also § 766.303, Fla. Stat.
(2013). In rejecting an equal protection challenge on the basis that the statute
treats a parent who files for the $100,000 award alone differently than parents
who share or divide the award, this Court distinguished the decision in
Phillipe, upon which we rely today:
Whereas the provision of the Medical Malpractice Act at issue in
[Phillipe] expressly concerns fault-based noneconomic damages for
survivors of the deceased, the Plan at issue here establishes a system of
no-fault compensation. The no-fault character of the Plan sets the parental
award provision apart from the statutory limitation on fault-based damages at
issue in [Phillipe]. Limitations on damages that raise equal protection
concerns under a fault-based system are dissimilar and appropriately viewed
differently than limitations on compensation under a system where eligible
claimants are assured of a recovery without regard to fault.
award of damages in a traditional fault-based action. Further, section
766.118 arbitrarily reduces damages without regard to the fault of a tortfeasor
simply based upon the number of survivors who are entitled to recovery. This is
clearly distinguishable from the no-fault compensation award under the
Plan at issue in Samples. The Plan was created by the Florida Legislature
with the express purpose of “providing compensation, irrespective of
fault, for birth-related neurological injury claims.” § 766.303(1), Fla.
Stat. (2013) (emphasis supplied). We reiterate that the present case does
not involve a statutorily-created no-fault compensation plan. Thus, the
two statutory schemes are, quite simply, completely different and distinct.
Accordingly, Samples is distinguishable from the present case and,
contrary to the assertion of the dissent, does not control, or even inform, the
outcome here.
death victims from recovering noneconomic damages where the cause of death was
medical malpractice. 761 So. 2d at 1041. In rejecting an equal protection
challenge, we noted that under the common law an adult who was not dependant on
a parent had no action and could not recover damages for injuries to that
parent. Id. at 1042 (quoting Stewart v. Price, 718 So. 2d 205, 209
(Fla. 1st DCA 1998)). When the Legislature created the right for adult children
to recover damages for the injuries and wrongful death of a parent, it chose to
exclude those children from recovering noneconomic damages in one type of action
(medical malpractice). Id. We ultimately held that the statute, “which
created a right of action for many while excluding a specific class from such
action, and which exclusion is rationally related to controlling healthcare
costs and accessibility,” did not violate equal protection. Id. at 1043.
expand a class of individuals eligible to recover noneconomic wrongful death
damages. Instead, it treats similarly situated, eligible survivors
differently by reducing the damages awarded without regard to the fault of the
wrongdoer and based solely upon a completely arbitrary factor, i.e., how many
survivors are entitled to recovery. The greater the number of survivors who are
eligible to recover noneconomic damages in a medical malpractice wrongful death
action, the lesser the award that each individual survivor will receive. Thus,
the statute at issue in Mizrahi is also distinguishable from the
noneconomic damages caps in section 766.118.
noneconomic damages for medical malpractice claims where a party requested
arbitration violated the access to courts provision of the Florida Constitution.
618 So. 2d at 190, 193. In the present case, because we address only an equal
protection challenge — not an access to courts challenge — Echarte is
inapposite. Nevertheless, the holding in Echarte that the cap was
constitutional does not impact our decision today. In upholding the
constitutionality of the cap in medical malpractice arbitration proceedings,
this Court in Echarte noted that arbitration provided commensurate
benefits in exchange for the cap, such as saving the expense of attorney fees
and expert witnesses. Id. at 194. Conversely, under section 766.118,
survivors receive absolutely no benefit whatsoever from the cap on noneconomic
damages, but only arbitrary reductions based upon the number of survivors.
by this Court in Phillipe. In Phillipe, we held that the cap
applied per claimant rather than per incident, and noted that to
hold otherwise would create equal protection concerns. 769 So. 2d at 971. In
reaching this conclusion, we expressly stated that “Echarte does not
control our decision.” Id. Similarly, Echarte does not compel a
different result here. Rather, Phillipe, which recognized that
Echarte did not address a circumstance in which similarly situated
survivors would receive different, arbitrarily reduced noneconomic damage awards
solely based upon the number of survivors, is the decision which guides our
analysis as to the constitutionality of section 766.118. See
Phillipe, 769 So. 2d at 971 (noting that “the loss of a survivor is not
diminished by the mere fact that there are multiple survivors”).
assertion in the concurring in result opinion, our examination of the validity
of section 766.118 cannot simply conclude without further analysis. The statute
at issue in Phillipe, related to damage limits, is not identical
to the factors in the present case. Phillipe involved a very different
statutory scheme, based upon noneconomic damage awards in the arbitration
context, a factual scenario not presented here. Therefore, while Phillipe
provides guidance and may be considered persuasive, it is not dispositive of our
equal protection analysis today. We cannot take the drastic step of invalidating
a statute simply by declaring it so and relying upon an unrelated case which
evaluated an unrelated statute. Instead, a comprehensive equal protection
analysis of the cap on damages in section 766.118 is required under Florida law
to resolve the certified question. Accordingly, a description of the elements of
an equal protection review, and our evaluation of those elements, must follow.
This is a consideration of the facts and circumstances surrounding the
challenged statute and the subject matter it addresses.
The Alleged Medical Malpractice Crisis
malpractice claimants, the cap on noneconomic damages also violates the Equal
Protection Clause of the Florida Constitution because it bears no rational
relationship to a legitimate state objective, thereby failing the rational basis
test. See Fla. Nurses Ass’n, 508 So. 2d at 319. Although the
concurring in result opinion seeks to avoid a full proper legal analysis,
contrary to the view of that opinion, no single prior case provides a complete
answer and none provides any legal analysis which affords a basis for an answer
to the question we must address. Our precedent expressly states that a proper
equal protection analysis under the rational basis test “requires this
Court to determine: (1) whether the challenged statute serves a legitimate
governmental purpose, and (2) whether it was reasonable for the
Legislature to believe that the challenged classification would promote that
purpose.” Warren v. State Farm Mut. Auto. Ins. Co., 899 So. 2d 1090, 1095
(Fla. 2005) (emphasis supplied); see also Zapo v. Gilreath, 779
So. 2d 651, 655 (Fla. 5th DCA 2001); Fla. Dept. of Ins. v. Keys Title &
Abstract Co., 741 So. 2d 599, 602 (Fla. 1st DCA 1999). Thus, under
Warren, and contrary to the view of the concurring in result opinion,
both prongs of the rational basis test must be evaluated to determine the
constitutionality of a statute.
that the full rational basis test be ignored and the legitimacy of the purpose
for the cap not be addressed as part of our constitutional analysis. Further,
that concurring in result opinion argues that only a single decision which does
not set forth a proper analysis be applied. However, we would abandon our
obligation under Warren were we to simply rubber stamp the Legislature’s
asserted justification for the cap — as the concurring in result and dissenting
opinions suggest we do — and fail to consider the existing factors and
circumstances to determine whether there is legitimacy to that justification. We
decline to abdicate our responsibility under the law and, therefore, address
whether the cap “serves a legitimate governmental purpose” pursuant to
the first prong of Warren. 899 So. 2d at 1095 (emphasis supplied).
by claiming that “Florida is in the midst of a medical malpractice insurance
crisis of unprecedented magnitude.” Ch. 2003-416, § 1, Laws of Fla., at 4035.
The Legislature asserted that the increase in medical malpractice liability
insurance premiums has resulted in physicians leaving Florida, retiring early
from the practice of medicine, or refusing to perform high-risk procedures,
thereby limiting the availability of health care. Id.
heavily on a report prepared by the Governor’s Select Task Force on Healthcare
Professional Liability Insurance (Task Force), which concluded that “actual and
potential jury awards of noneconomic damages (such as pain and suffering) are a
key factor (perhaps the most important factor) behind the unavailability and
un-affordability of medical malpractice insurance in Florida.” Report of
Governor’s Select Task Force on Healthcare Professional Liability Insurance
(Task Force Report) (Jan. 29, 2003), at xvii.
by section 766.118, we are not required to accept the findings of the
Legislature or the Task Force at face value. Instead:
While courts may defer to legislative statements of policy and fact,
courts may do so only when those statements are based on actual findings of
fact, and even then courts must conduct their own inquiry:
The general rule is that findings of fact made by the legislature
are presumptively correct. However, it is well-recognized that the findings of
fact made by the legislature must actually be findings of fact. They are
not entitled to the presumption of correctness if they are nothing more than
recitations amounting only to conclusions and they are always subject to
judicial inquiry.
2d 612, 627 (Fla. 2003) (quoting Moore v. Thompson, 126 So. 2d 543, 549
(Fla. 1960)) (some emphasis supplied).
the conclusions reached by the Florida Legislature as to the existence of a
medical malpractice crisis are not fully supported by available data. Instead,
the alleged interest of health care being unavailable is completely undermined
by authoritative government reports. Those government reports have indicated
that the numbers of physicians in both metropolitan and non-metropolitan areas
have increased. For example, in a 2003 report, the United States General
Accounting Office found that from 1991 to 2001, Florida’s physician supply per
100,000 people grew from 214 to 237 in metropolitan areas and from 98 to 117 in
nonmetropolitan areas, or percentage increases of 10.7 and 19, respectively.
Physician Workforce: Physician Supply Increased in Metropolitan and
Nonmetropolitan Areas but Geographic Disparities Persisted, No. GAO-04-124,
(Oct. 31, 2003), at 23, available at http://www.gao.gov/new.items/d04124.pdf.Download Adobe Reader
Thus, during this purported crisis, the numbers of physicians in Florida were
actually increasing, not decreasing.
rational basis for the clear discrimination presented by the legislation.
Although assertions of a malpractice insurance crisis are often accompanied by
images of runaway juries entering verdicts in exorbitant amounts of noneconomic
damages, see, e.g., Task Force Report at xvii, one study revealed that in
Florida cases which resulted in payments of $1 million or more over a
fourteen-year period, only 7.5 percent involved a jury trial verdict.
See Neil Vidmar, Kara MacKillop & Paul Lee, Million Dollar Medical
Malpractice Cases in Florida: Post-Verdict and Pre-Suit Settlements, 59
Vand. L. Rev. 1343, 1345-46 (2006).5
Moreover, 10.1 percent of settlements that involved payments of $1 million or
more were resolved without a legal action ever being filed. Id. at
1360. Such statistics led the authors of the study to conclude that jury trials
constitute only a very small portion of medical malpractice payments. Id.
at 1345. The authors also concluded that “tort reform efforts focused on jury
verdicts are misdirected, at least with respect to $1 million verdicts in
Florida. Not only do jury trials constitute only a small portion of $1 million
payments, [but] the settlements following verdicts tend to be substantially
less than the jury awards.” Id. at 1381 (emphasis
supplied).6 Thus, available data indicates
the Task Force’s finding that noneconomic damage awards by juries are a primary
cause of the purported medical malpractice crisis in Florida is most
questionable.
employed extremely equivocal language and speculation when describing the
existence of a crisis. For example, the Task Force stated that it “believes” the
alleged crisis “could get worse in the coming years. . . . Medical
malpractice insurance premiums may become unaffordable, and/or coverage
may become unavailable at any price to many physicians and hospitals.”
See Task Force Report, at 211-12 (emphasis supplied). Further, despite
blaming “actual and potential jury awards of noneconomic damages” for this
ominous prediction, Task Force Report at xvii, the Task Force recognized that
there are other explanations for the dramatic rise in medical malpractice
insurance premiums. For example, the Task Force Report notes that in the opinion
of Joanne Doroshow, Executive Director of the Center for Justice and Democracy:
[T]his so-called “crisis” is nothing more than the underwriting
cycle of the insurance industry, and driven by the same factors that caused the
“crises” in the 1970s and 1980s. According to . . . Doroshow, with each crisis,
there has been a severe drop in the investment income for insurers, which has
been compounded by sever [sic] under-pricing of insurance premiums in the prior
years. . . . [D]uring years of high interest rates or excellent insurer profits
that are invested for maximum return, the insurance companies engage in fierce
competition for premium dollars by selling under-priced premiums and insuring
very poor risks. Then . . . when investment income drops, either due to
increases in interest rates or the stock market, or due to low income resulting
from unbearably low premiums, the insurance industry responds by sharply
increasing premiums and reducing coverage.
. . . The tort reform changes in the 1980s had nothing to do with
the flattening of rates. The flattening was caused instead by modulations in the
insurance cycle throughout the country.
acknowledged:
Medical malpractice insurance has been subject to sudden jolts, both
in availability of coverage and cost. An entire cycle has been defined as the
period of years in which insurer underwriting profits cycle from above average
to below average. These cycles have always occurred in the insurance
industry, particularly in medical malpractice insurance.
also Tom Baker, THE MEDICAL MALPRACTICE MYTH 53-54 (2005) (“[T]he two most
recent medical liability insurance crises did not result from sudden or dramatic
increases in medical malpractice settlements or jury verdicts. . . . [T]he
crises resulted from dramatic increases in the amount of money that the
insurance industry put in reserve for claims. Those reserve increases were so
big because the insurance industry systematically underreserved in the years
leading up to the crisis.”).
the Florida Senate raised questions concerning the magnitude of any purported
health care crisis. With regard to the former, the deputy director of the
Florida Office of Insurance Regulation testified he had found no evidence
to suggest that there had been a large increase in the number of frivolous
lawsuits filed in Florida, nor was there any evidence of excessive jury verdicts
in the prior three years. Testimony of Steve Roddenberry, Senate Judiciary
Committee Meeting, July 14, 2003, at 3, 10.
senator and the Chairman of the Senate Judiciary Committee:
SENATOR: Were you able to determine whether or not there is an
access to health care crisis in terms of the number of doctors licensed to
practice medicine, the number of hospital closures or the number of emergency
rooms closed?
. . . .
CHAIRMAN: [T]his is not what I found. What the testimony was from
both the Department of Health, the Agency for Health Care Administration and
various other people . . . was that there, in fact, are more doctors licensed
to practice today in the State of Florida than there were five years
ago.
Applications to the medical schools in the State of Florida are up
and have been up consistently for the past, for the past number of
years.
And also that emergency rooms have not been closing as a result of
medical malpractice.
As a matter of fact, the Department of Health and the Agency for
Health Care Administration both testified under oath that they could not cite
any incidents where because of a medical malpractice crisis patients were denied
some type of care or directed someplace else.
support for the testimony of the committee chairman exists in a report prepared
by the United States General Accounting Office, which states:
Reports of physician departures in Florida were anecdotal, not
extensive, and in some cases we determined them to be inaccurate. For example,
state medical society officials told us that Collier and Lee counties lost all
of their neurosurgeons due to malpractice concerns; however, we found at least
five neurosurgeons currently practicing in each county as of April 2003.
Provider groups also reported that malpractice pressures have recently made it
difficult for Florida to recruit or retain physicians of any type; however, over
the past 2 years the number of new medical licenses issued has increased and
physicians per capita has remained unchanged.
Care, No. GAO-03-836, (Aug. 2003), at 17-18, available at
http://www.gao.gov/new.items/d03836.pdf.
no concrete evidence to demonstrate that high malpractice premiums were the
cause of that departure. During her testimony before the Senate Judiciary
Committee, the CEO of the Florida Medical Association testified with regard to
two cases where physicians had relocated from Florida to North Carolina and New
York, after which the following testimony ensued:
SENATOR: The [American Medical Association] has identified the
states with national [crises], medical malpractice. One of the states is North
Carolina. One of the states is New York. So it seems like you get some
physicians that are leaving Florida for states that are also considered by the
AMA to be in national crisis. Why?
CEO: Maybe they haven’t figured that out yet.
CHAIRMAN: You better call the guy from North Carolina and —
CEO: I haven’t got the answer to that. I haven’t talked to any of
these people individually.
CHAIRMAN: You better call the guy from North Carolina and tell him
they don’t have caps there either.
2003, at 117, 129-30.
premiums in Florida were undoubtably high in 2003, we conclude the Legislature’s
determination that “the increase in medical malpractice liability insurance
rates is forcing physicians to practice medicine without professional liability
insurance, to leave Florida, to not perform high-risk procedures, or to retire
early from the practice of medicine” is unsupported. Ch. 2003-416, §1, Laws of
Fla., at 4035. Thus, the finding by the Legislature and the Task Force that
Florida was in the midst of a bona fide medical malpractice crisis, threatening
the access of Floridians to health care, is dubious and questionable at the very
best.
The Impact of Damage Caps on the Alleged Crisis
Florida was facing a dangerous risk of physician shortage due to malpractice
premiums, we conclude that section 766.118 still violates Florida’s Equal
Protection Clause because the available evidence fails to establish a rational
relationship between a cap on noneconomic damages and alleviation of the
purported crisis. See generally Fla. Nurses Ass’n, 508 So. 2d at
319 (stating that for legislation to be constitutional under the rational basis
standard, it must bear a rational and reasonable relationship to a legitimate
state objective).
and reduced malpractice premiums. Weiss Ratings, which evaluates the performance
of the malpractice insurance industry, has detailed two particularly salient
findings. First, based upon data acquired from 1991 until 2002, the median
medical malpractice premiums paid by physicians in three high-risk specialties
— internal medicine, general surgery, and obstetrics/gynecology — rose by 48.2
percent in states that have damages caps, but in states without caps, the
median annual premium increased at a slower rate — by 35.9 percent.
Martin D. Weiss, Melissa Gannon & Stephanie Eakins, Medical Malpractice
Caps: The Impact of Non-Economic Damage Caps on Physician Premiums, Claims
Payout Levels, and Availability of Coverage, at 7-8 (rev. ed. June 3, 2003),
available at http://www.weissratings.com/pdf/malpractice.pdf. Second, the study
noted that among states with caps on damages, only 10.5 percent (two of
nineteen states with caps) experienced static or declining medical malpractice
premium rates following the imposition of caps. In contrast, among states
without damages caps, 18.7 percent (six of thirty-two states7 without caps) experienced static or declining
medical malpractice premiums. Id. at 8.
Company (FPIC), testified during a Senate Judiciary Committee meeting that a
$500,000 cap on noneconomic damages would achieve “virtually nothing” with
regard to stabilizing medical malpractice insurance rates. Testimony of Robert
White, Senate Judiciary Committee Meeting, July 14, 2003, at 48, 50-51. Earlier
in 2003, Mr. White informed a group of Palm Beach physicians: “No responsible
insurer can cut its rates after a bill [that caps noneconomic damages at
$250,000] passes.” Phil Galewitz, “Underwriter Gives Doctors Dose of Reality,”
Palm Beach Post, Jan. 29, 2003, at 1A. Mr. White advised that “[e]ven if
a cap is approved by the legislature and survives the likely legal challenge . .
. it would yield on average only a 16 percent premium cut.” Id.
(emphasis supplied). Interestingly, during his testimony before the Senate
Judiciary Committee, Mr. White acknowledged that in 2002, the experience of FPIC
was more positive in Florida than in Missouri, a state which at that time had
implemented caps on damages. Testimony of Robert White, Senate Judiciary
Committee Meeting, at 59.
doubt as to whether a noneconomic damages cap would have the effect of reducing
premiums. During floor debate in the Senate, the following dialogue between a
senator and the Chairman of the Senate Judiciary Committee occurred:
SENATOR: [W]as there any testimony from either FPIC or any other
insurance company that may have testified . . . that they would immediately
reduce rates if they got a cap on damages?
SENATE PRESIDENT: [Chairman] to respond.
CHAIRMAN: No.
. . . .
SENATOR: Was there any testimony the only way that you could reduce
malpractice premiums was to cap damages?
SENATE PRESIDENT: [Chairman to respond.]
CHAIRMAN: No.
. . . .
SENATOR: . . . It’s my recollection, and maybe this might help [the
Chairman], I remember a Mr. Bob White, representing FPIC, in testimony relative
to the caps said, no, there wouldn’t be an immediate reduction in medical
malpractice premiums due to caps, but as soon as they would be affirmed by a
Court, there would be an immediate reduction available.
. . . .
CHAIRMAN: Senator . . . that was not the testimony given by Mr.
White. I believe he said that bad faith and a series of other things had to be
there, so the answer is no, it was not by placing a $250,000 cap that would give
a reduction.
. . . .
[T]he question was very specific, whether or not caps, whether or
not Mr. White said that caps would reduce insurance rates. That was the
question.
The answer is, he said no. I have the transcripts on my desk, and if
you would care to show me where it says otherwise, I would be happy to say
so.
. . . .
What he did say was you have to add several variables, bad faith is
one of them and I believe there were others. So if the question is on caps, the
answer is no.
debate in the House of Representatives, one representative expressed concern
that if the Florida Legislature implements a cap on noneconomic damages, there
is no requirement in the bill that insurers pass any savings onto physicians.
House Floor Debate Tr. 38-39 (Aug. 13, 2003) (“[A]t the end of the day,
actually, [the insurance companies] don’t have to pay anything back to the
doctors. It’s just a windfall, and there’s no provision in the bill that says
otherwise.”).
unfounded. While the cap on noneconomic damages limits the amount of money that
insurance companies must pay injured victims of medical malpractice, section
766.118 does not require insurance companies to use the acquired savings to
lower malpractice insurance premiums for physicians, and the argument and
reliance by the Respondent on rate reduction statutes is misplaced. When the
statutory cap on noneconomic damages was first enacted, the legislation
contained a provision, codified at section 627.062(8)(a)1., Florida Statutes
(2003), that simply required the Florida Office of Insurance Regulation (FLOIR)
to calculate a “presumed factor that reflects the impact that the changes
contained in such legislation will have on rates for medical malpractice
insurance and shall issue a notice informing all insurers writing medical
malpractice coverage of such presumed factor.” Ch. 2003-416 § 40, Laws of Fla,
at 4078. There was no mandated rate reduction. After FLOIR issued a notice of
the presumed factor, all medical malpractice insurance companies that offered
coverage in Florida were directed to submit a rate filing for medical
malpractice insurance that reflected “an overall rate reduction at least as
great as the presumed factor.” § 627.062(8)(a)2., Fla. Stat. (2003).
medical malpractice insurance companies to reduce their rates in response to the
2003 legislation, FLOIR nonetheless advised that “[e]ven after application of
the presumed factor, we anticipate insurers will file for rate increases.” Press
Release, Florida Office of Insurance Regulation, Office of Insurance
Regulation Releases Presumed Factor (Nov. 10, 2003), available at
http://www.floir.com/PressReleases/viewmediarelease.aspx?id=1316. Moreover,
despite any intended moderation of medical malpractice premiums based upon the
calculation of the presumed factor, the 2013 Annual Report on Medical
Malpractice Financial Information, Closed Claim Database and Rate Filings,
prepared by FLOIR compared the premiums of Florida doctors in four specialties
(family practice, obstetrics, emergency, and orthopedics) with other sampled
states and concluded that “Florida is either the highest (of nine states) or the
second highest state as far as premiums go in all but one of the scenarios.”
2013 FLOIR Annual Report (Oct. 1, 2013) at 57-58, available at
http://www.floir.com/Office/DataReports.aspx#rec (CY2012). Therefore, despite
assertions that the presumed factor created in section 627.062(8)(a) caused
massive rate reductions by medical malpractice insurers to pass savings onto
their customers, the data suggests otherwise. Subdivision (8) was even repealed
from section 627.062 in 2011, having been designated “obsolete” by the
Legislature. Ch. 2011-39, § 12, Laws of Fla., at 514, 536-37.
mandate that insurance companies lower their insurance premiums in response to
tort reform, the savings resulting from reforms such as damages caps may simply
increase insurance company profits. In Zeier v. Zimmer, Inc., 152 P.3d
861 (Okla. 2006), the Oklahoma Supreme Court held that a statute requiring a
medical malpractice claimant to obtain an affidavit of merit from a qualified
expert as a prerequisite to filing an action was unconstitutional under the
Oklahoma Constitution. See id. at 874. While Zeier did not
address caps, we find an observation of the Oklahoma Supreme Court to be just as
applicable to caps on noneconomic damages:
[An] unanticipated result of statutes similar to Oklahoma’s scheme
has been the creation of a windfall for insurance companies . . . which are not
required to implement post-tort reform rates decreasing the cost of medical
malpractice insurance to physicians. These companies happily pay less out in
tort-reform states while continuing to collect higher premiums from
doctors.
damages will lower insurance premiums. In Lucas v. United States, 757
S.W.2d 687 (Tex. 1988), the court noted that when the Texas Legislature enacted
medical malpractice damages caps, it stated that “adoption of certain
modifications in the medical, insurance, and legal systems . . . may or may
not have an effect on the rates charged by insurers for medical professional
liability coverage.” Id. at 691. In striking down the caps as
unconstitutional, the court concluded that “[i]n the context of persons
catastrophically injured by medical negligence, we believe it is unreasonable
and arbitrary to limit their recovery in a speculative experiment to
determine whether liability insurance rates will decrease.” Id. We
completely agree with and adopt the position of the Supreme Court of Texas.
relationship between the cap on wrongful death noneconomic damages and the
lowering of medical malpractice insurance premiums. Accordingly, we hold that
section 766.118 fails the rational basis test and violates the Equal Protection
Clause of the Florida Constitution. See generally Fla. Nurses
Ass’n, 508 So. 2d at 319.
The Current Status of Medical Malpractice in Florida
is not a permanent condition. Conditions can change, which remove or negate the
justification for a law, transforming what may have once been reasonable into
arbitrary and irrational legislation. The United States Supreme Court has
recognized that “[a] law depending upon the existence of an emergency or other
certain state of facts to uphold it may cease to operate if the emergency ceases
or the facts change even though valid when passed.” Chastleton Corp. v.
Sinclair, 264 U.S. 543, 547-48 (1924). See also Ferdon ex rel.
Petrucelli v. Wisconsin Patients Comp. Fund, 701 N.W.2d 440, 468 (Wisc.
2005) (“A statute may be constitutionally valid when enacted but may become
constitutionally invalid because of changes in the conditions to which the
statute applies. A past crisis does not forever render a law valid.” (footnotes
omitted)). Thus, even if section 766.118 may have been rational when it was
enacted based on information that was available at the time, it will no longer
be rational where the factual premise upon which the statute was based has
changed. It is for this reason that Florida courts consider both pre- and
post-enactment data in assessing the continued rationality of a statute.
justify continued application of the noneconomic damages cap of section 766.118.
The 2011 State Physician Workforce Data Book prepared by the Association of
American Medical Colleges (AAMC) reflects that in 2010, there were 254.8 active
physicians for every 100,000 people in Florida, a number higher than
twenty-eight other states. AAMC, 2011 State Physician Workforce Data
Book, at 9 (Nov. 2011), available at
https://www.aamc.org/download/263512/data/statedata2011.pdf. Further, data
collected through December 31, 2010, reflects that 59.4 percent of active
physicians who completed medical school in Florida are practicing in Florida.
Id. at 53. Only three other states retained a higher percentage of
medical students. Id.
that medical malpractice filings in Florida have decreased significantly.
During fiscal year 2003-04, a total of 5,829 professional malpractice and
product liability actions were filed in Florida circuit courts, comprising 3.2
percent of all civil actions filed that year.8 However, during fiscal year 2011-12, only 2,313
such actions were filed in Florida circuit courts, a decrease of more than 60
percent, and comprising just 0.76 percent of all civil actions filed. The Annual
Reports on Medical Malpractice Financial Information prepared by the Florida
Office of Insurance Regulation (FLOIR Annual Report) reflect a similar decrease
in both the number of claims and in the amount of noneconomic damages paid by
medical malpractice insurance companies. For example, 3,574 medical malpractice
claims were closed in 2004, and insurance companies paid $195,132,457 in
noneconomic damages. 2005 FLOIR Annual Report (Oct. 1, 2005) at 40, 44,
available at http://www.floir.com/Office/DataReports.aspx#rec (CY2004). On the
other hand, in 2012 only 2,491 medical malpractice claims were closed, and
insurance companies paid $140,941,965 in noneconomic damages, decreases of 30.3
percent and 27.7 percent, respectively. 2013 FLOIR Annual Report (Oct. 1, 2013)
at 10, 88, available at http://www.floir.com/Office/DataReports.aspx#rec
(CY2012).
medical malpractice insurance in Florida are far from struggling financially.
The 2013 FLOIR Annual Report notes:
It is estimated that the Florida medical malpractice line of
business standing alone generated a direct (before reinsurance) return on
surplus of 14.0% in 2012. This return compares very positively with the average
countrywide all-lines net return on surplus for Florida’s leading medical
malpractice writers of 5.3% (down from 7.1% in 2011, but not far out of line
with market returns in 2012). This represents the ninth consecutive year of
profitability. . . . Related financial information in the report also
suggests that the leading malpractice carriers as a class are financially
strong.
and reports of the Florida Office of Insurance Regulation, and the annual
reports of medical malpractice insurers, confirm that not only has the number of
insurers providing medical malpractice insurance coverage increased, see
2012 FLOIR Annual Report at 40-41 and 2013 FLOIR Annual Report at 44, the
profits would probably shock most concerned. Indeed, between the years of 2003
and 2010, four insurance companies that offered medical malpractice insurance in
Florida cumulatively reported an increase in their net income of more than
4300 percent.9 With such impressive
net income estimates, the insurance industry should pass savings onto Florida
physicians in the form of reduced malpractice insurance premiums,10 and it should no longer be necessary to continue
punishing those most seriously injured by medical negligence by limiting their
noneconomic recovery to a fixed, arbitrary amount.
turn of the century, the current data reflects that it has subsided. No rational
basis currently exists (if it ever existed) between the cap imposed by section
766.118 and any legitimate state purpose. See generally Fla. Nurses
Ass’n, 508 So. 2d at 319. At the present time, the cap on noneconomic
damages serves no purpose other than to arbitrarily punish the most grievously
injured or their surviving family members. Moreover, it has never been
demonstrated that there was a proper predicate for imposing the burden of
supporting the Florida legislative scheme upon the shoulders of the persons and
families who have been most severely injured and died as a result of medical
negligence. Health care policy that relies upon discrimination against Florida
families is not rational or reasonable when it attempts to utilize aggregate
caps to create unreasonable classifications. Accordingly, and for each of these
reasons, the cap on wrongful death noneconomic damages in medical malpractice
actions does not pass constitutional muster.
THE REMAINING CERTIFIED QUESTIONS
With regard to the second and third questions, the provision of the Florida
Constitution that governs access to courts protects those rights which existed
either at common law or by statute prior to the adoption of the 1968 Declaration
of Rights. See Kluger v. White, 281 So. 2d 1, 4 (Fla. 1973).
Similarly, the right to trial by jury is guaranteed only in those cases where
the right was enjoyed at the time the first Constitution of Florida became
effective in 1845. In re 1978 Chevrolet Van, 493 So. 2d 433, 434 (Fla.
1986).
death. White v. Clayton, 323 So. 2d 573, 575 (Fla. 1975) (“An action for
wrongful death was not authorized at common law, and is a creation of the
legislature.”). Moreover, although the Florida Legislature authorized an action
for wrongful death prior to 1968, see, e.g., § 768.01, Fla. Stat. (1941),
the right of survivors to recover noneconomic damages, such as pain and
suffering, did not become part of Florida statutory law until 1972. Lifemark
Hosps. of Fla., Inc. v. Afonso, 4 So. 3d 764, 769 (Fla. 3d DCA), cert.
denied, 23 So. 3d 711 (Fla. 2009).
medical malpractice actions and personal injury medical malpractice actions
where the victim survives. This case involves only a wrongful death medical
malpractice action. Because the right of Ms. McCall’s parents and son to recover
noneconomic damages for her death did not exist prior to 1972, their access to
courts and jury trial challenges to section 766.118 are not cognizable.
Accordingly, to answer the second and third questions certified by the federal
appellate court with regard to personal injury medical malpractice actions would
constitute an advisory opinion, which we are not authorized to provide.
Sarasota-Fruitville Drainage Dist. v. Certain Lands Within Said Dist., 80
So. 2d 335, 336 (Fla. 1955) (“We have repeatedly held that this Court was not
authorized to render advisory opinions except in the instances required or
authorized by the Constitution.”).
separation of powers challenge is based upon a similar rationale. As previously
stated, with regard to wrongful death, the Florida Legislature created a cause
of action where none previously existed. Clayton, 323 So. 2d at 575.
However, section 766.118 addresses both personal injury medical
malpractice actions, which previously existed under the common law, Maggio v.
Fla. Dep’t of Labor and Emp. Security, 899 So. 2d 1074, 1081 n.5 (Fla. 2005)
(noting that “unlike causes of action that are solely the creature of statute,
medical malpractice actions existed as common law torts”), and wrongful death
medical malpractice actions, which are purely a statutory creation. Were we to
answer the fourth certified question, it would constitute, in part, an
impermissible advisory opinion. Sarasota-Fruitville, 80 So. 2d at 336.
For this reason, we decline to do so.
CONCLUSION
the affirmative and hold that the cap on wrongful death noneconomic damages in
section 766.118, Florida Statutes, violates the Equal Protection Clause of the
Florida Constitution. We defer answering the remaining certified questions. We
return this case to the Eleventh Circuit Court of Appeals.
an opinion, in which QUINCE and PERRY, JJ., concur. POLSTON, C.J., dissents with
an opinion, in which CANADY, J., concurs.)
authored by Justice Lewis that the statutory cap on wrongful death noneconomic
damages provided by the medical malpractice statute violates the Equal
Protection Clause of the Florida Constitution. Like the plurality, I would
therefore answer the first rephrased certified question in the affirmative and
decline to answer the remaining questions certified by the Eleventh Circuit
Court of Appeals. In fact, as I explain, I agree with much of the plurality
opinion that declares the statutory damages cap unconstitutional as applied to
wrongful death actions.
disagree with the plurality’s application of the rational basis test in this
case. Specifically, my primary disagreement is with the decision not to afford
deference to the legislative findings in the absence of a showing that the
findings were “clearly erroneous.” Univ. of Miami v. Echarte, 618 So. 2d
189, 196 (Fla. 1993).
findings, I disagree with the plurality’s independent evaluation and reweighing
of reports and data, including information from legislative committee meetings
and floor debate, as well as an article published in the Palm Beach Post
newspaper, as part of its review of whether the Legislature’s factual findings
and policy decisions as to the alleged medical malpractice crisis were fully
supported by available data. See, e.g., plurality op. at 25-28 (Lewis,
J.) (quoting from the legislative floor debate and committee meeting testimony
and reviewing studies); id. at 29-31 (citing to and quoting from a
newspaper article and quoting additional legislative committee testimony and
floor debate). I emphasize, however, that although I do not fully join in the
plurality’s application of the rational basis test, I agree with the ultimate
conclusion that the arbitrary reduction of survivors’ noneconomic damages in
wrongful death cases based on the number of survivors lacks a rational
relationship to the goal of reducing medical malpractice premiums.
of the case, which frames the specific constitutional question in need of this
Court’s resolution — a resolution the plurality and I both agree on. With this
context in mind, I then explain how and why the plurality and I agree as to the
as-applied unconstitutionality of the statutory cap on noneconomic damages in
wrongful death actions. Finally, I discuss where my legal analysis diverges from
the plurality’s and why, despite my agreement with the ultimate conclusion, I am
unable to fully join in the plurality opinion.
I. Background
litigation began, at the time of her death, Michelle McCall was a “bright,
beautiful, and healthy, 20-year-old woman” who tragically “bled to death in the
presence of all medical staff who were attending her” in the course of receiving
prenatal care and delivery services for her pregnancy at Eglin Air Force Base’s
clinic. Estate of McCall v. United States, 663 F. Supp. 2d 1276, 1283,
1291 (N.D. Fla. 2009). The facts of the medical malpractice and the
circumstances of Michelle’s tragic death are not in dispute or at issue before
this Court. Rather, we are faced with a legal question as to the
constitutionality of Florida’s statutory limitation on noneconomic damages to
Michelle’s survivors, as set forth in section 766.118, Florida Statutes.
(2) Limitation on noneconomic damages for negligence of
practitioners. —
(a) With respect to a cause of action for personal injury or
wrongful death arising from medical negligence of practitioners, regardless of
the number of such practitioner defendants, noneconomic damages shall not exceed
$500,000 per claimant. No practitioner shall be liable for more than $500,000 in
noneconomic damages, regardless of the number of claimants.
(b) Notwithstanding paragraph (a), if the negligence resulted in a
permanent vegetative state or death, the total noneconomic damages recoverable
from all practitioners, regardless of the number of claimants, under this
paragraph shall not exceed $1 million. In cases that do not involve death or
permanent vegetative state, the patient injured by medical negligence may
recover noneconomic damages not to exceed $1 million if:
1. The trial court determines that a manifest injustice would occur
unless increased noneconomic damages are awarded, based on a finding that
because of the special circumstances of the case, the noneconomic harm sustained
by the injured patient was particularly severe; and
2. The trier of fact determines that the defendant’s negligence
caused a catastrophic injury to the patient.
(c) The total noneconomic damages recoverable by all claimants from
all practitioner defendants under this subsection shall not exceed $1 million in
the aggregate.
baby boy, who was born at the same time Michelle died. The federal district
court found as follows as to the child’s noneconomic damages:
W.W., who is now a healthy and active 3 ½ year-old boy [as of 2009],
has been deprived the privilege of ever knowing his mother, of having her
comfort and emotional support throughout his and her shared lifetimes, and of
benefitting from her guidance and companionship. The negligent conduct in this
case occurred within a matter of hours of his birth, but it leaves for W.W. a
void in his life that will never truly be filled. His pain and suffering are
difficult to quantify, but no one disputes the magnitude of his loss. On the
other hand, the court is mindful that W.W.’s pain is necessarily tempered by his
age at the time of his mother’s death. He lives with the pain of never knowing
her, but not with the pain that comes from suddenly losing the love and
companionship of a parent one has bonded with emotionally. W.W.’s life, while
shadowed by this tragedy, will be lived with the love of those who have
surrounded him from infancy — his father and his grandparents — not the pain
of a conscious memory of his mother’s death. The court does not intend to
minimize the loss of one’s mother; such is an obvious and enormous loss. The
court simply finds that the pain and suffering for W.W. is tempered by his
infancy at the time of his mother’s death, a factor that should be reflected in
the noneconomic damage award. To compensate for W.W.’s loss of parental
companionship, instruction, and guidance and for his mental pain and suffering,
the court awards $500,000.00.
district court awarded $750,000 to each for their pain and suffering, explaining
as follows:
There is no question, as shown by the evidence, that Mr. and Mrs.
McCall were both very close to their daughter and that this tragedy has greatly
impacted the quality of their lives, emotionally as well as physically. They
were otherwise healthy, active, and excited about helping their daughter and new
grandson. They went to the hospital with the happy and hopeful expectation of
bringing their daughter home with a healthy baby but instead found themselves
faced with the agonizing decision of whether to remove life support from her.
Mr. McCall struggled as he recounted their hope of Michelle possibly regaining
consciousness as they laid W.W. across her before she died, and also so they
could have one photograph of her “holding” her baby before she died. The pain
from the loss of their only daughter and the mental agony of having to make the
decision to remove her from life support will not soon abate, if ever in their
lifetimes. The court takes into consideration, however, that because of their
relationship as a married couple, they will both undeniably benefit from each
other’s noneconomic damage award.
noneconomic damages recoverable by all claimants at $1 million, each of these
three independent survivors had his or her award of noneconomic damages
significantly reduced so that the damages were proportionally divided so as not
to exceed the statutory cap. In other words, instead of receiving the full
amount of noneconomic damages awarded by the federal district court, none of
which individually exceeded $1 million, each individual survivor was treated
differently as to his or her noneconomic damages award because there was more
than one survivor entitled to noneconomic damages in this case.
becomes important. Critically, as I explain in the next section, despite not
fully joining in the plurality opinion, I do agree that the noneconomic damages
cap violates Florida’s Equal Protection Clause as applied to wrongful death
actions under the constitutional rational basis test.
II. Agreement with the Plurality Opinion
that there are two prongs to the rational basis test, requiring the Court to
consider both whether the statute serves a legitimate governmental purpose and
whether the Legislature was reasonable in its belief that the challenged
classification would promote that purpose. See, e.g., Hechtman v.
Nations Title Ins. of N.Y., 840 So. 2d 993, 996 (Fla. 2003). As this Court
explained in one of its most recent applications of the rational basis test in
the equal protection context, “[t]o be entitled to relief under the rational
basis test, the [challengers] must show that the [challenged statute] does not
‘bear some rational relationship to legitimate state purposes.’ ” Samples v.
Fla. Birth-Related Neurological Injury Comp. Ass’n, 114 So. 3d 912, 917
(Fla. 2013) (quoting Westerheide v. State, 831 So. 2d 93, 110 (Fla.
2002)). It is not this Court’s “task ‘to determine whether the legislation
achieves its intended goal in the best manner possible, but only whether the
goal is legitimate and the means to achieve it are rationally related to the
goal.’ ” Samples, 114 So. 3d at 917 (quoting Loxahatchee River Envtl.
Control Dist. v. Sch. Bd. of Palm Beach Cnty., 496 So. 2d 930, 938 (Fla. 4th
DCA 1986)).
the Legislature’s actions. Plurality op. at 20 (Lewis, J.). Indeed, although
this Court’s case law requires deference to the Legislature’s factual
determinations, see Echarte, 618 So. 2d at 196, this Court’s
precedent also clearly establishes that the Legislature’s findings “must
actually be findings of fact” and are not entitled to the presumption of
correctness “if they are nothing more than recitations amounting only to
conclusions.” Moore v. Thompson, 126 So. 2d 543, 549 (Fla. 1960) (quoting
Seagram-Distillers Corp. v. Ben Greene, Inc., 54 So. 2d 235, 236 (Fla.
1951)).
statutory cap on noneconomic damages is unconstitutional as applied to wrongful
death actions. In my view, the Court’s controlling precedent in St. Mary’s
Hospital, Inc. v. Phillipe, 769 So. 2d 961, 971 (Fla. 2000), is directly on
point in holding that this type of statutory scheme is improper because
“[d]ifferentiating between a single claimant and multiple claimants bears no
rational relationship to the Legislature’s stated goal of alleviating the
financial crisis in the medical liability insurance industry.” Id.
Phillipe that aggregate caps or limitations on noneconomic damages
violate equal protection guarantees under the Florida Constitution when applied
without regard to the number of claimants entitled to recovery.” Plurality op.
at 10 (Lewis, J.). I agree with the plurality that this “inherently
discriminatory action and resulting invidious discrimination do not pass
constitutional muster.” Id.
given that, in capping wrongful death noneconomic damages regardless of the
number of survivors, the only asserted legitimate State interest is the
alleviation of rising medical malpractice insurance premiums paid by the
affected doctors. However, as the plurality explains, there is no mechanism in
place to assure that savings are actually passed on from the insurance companies
to the doctors. See plurality op. at 31-34 (Lewis, J.) (explaining that
section 766.118 contains no requirement that insurance companies use the
acquired savings to lower malpractice premiums, discussing how subdivision (8)
was subsequently repealed, and reviewing the reasoning of other courts that have
expressed concern about the constitutionality of a damages cap in light of this
missing link).
benefit to the victims of medical malpractice, and if there is also no
commensurate benefit to the doctors and hospitals involved in medical
malpractice litigation, then only the insurance companies benefit in the form of
an increase in profits. See id. This critical missing link causes
me to believe that the statutory cap on noneconomic damages in medical
malpractice actions not only fails the smell test, but the rational basis test
as well, especially in light of the fact that subdivision (8) was repealed as
“obsolete.” See id. at 33. In other words, the statutory cap on
noneconomic damages fails the rational basis test because “the Legislature could
not have had any reasonable ground for believing that there were public
considerations justifying the particular classification and distinction made,”
North Ridge General Hospital, Inc. v. City of Oakland Park, 374 So. 2d
461, 465 (Fla. 1979), since an aggregate cap on damages without regard to the
number of claimants bears no rational relationship to the asserted State
interest in “alleviating the financial crisis in the medical liability insurance
industry.” Phillipe, 769 So. 2d at 971.
when section 766.118 was enacted, a crisis is not a permanent condition.”
Plurality op. at 35 (Lewis, J.). As I stated in my dissent in Mizrahi v.
North Miami Medical Center, Ltd., 761 So. 2d 1040 (Fla. 2000):
There is no indication that the past medical malpractice crisis
continues into the present. If the medical malpractice crisis does not continue
into the present, I fail to see how a past crisis can justify the permanent
exclusion of an entire class of victims from seeking compensation for pain and
suffering damages due to the wrongful death of their parents as a result of
medical malpractice.
Indeed, it is a “settled principle of constitutional law” that
although a statute is constitutionally valid when enacted, that statute may
become constitutionally invalid due to changes in the conditions to which the
statute applies. See Conner v. Cone, 235 So. 2d 492, 498 (Fla.
1970); see also Georgia S. & F. Ry. Co. v. Seven-Up Bottling Co.
of Southeast Ga., 175 So. 2d 39, 40 (Fla. 1965). Accordingly, while it is
not our role to reexamine legislative fact-finding, we also need not blindly
accept the Legislature’s conclusions, especially when such conclusions may no
longer be valid due to changed conditions. See Seagram-Distillers
Corp. v. Ben Greene, Inc., 54 So. 2d 235, 236 (Fla. 1951); see also
Conner, 235 So. 2d at 498.
. . . .
All other adult children who lose their parents as a result of other
negligent conduct have the right to recover pain and suffering damages if their
parent died without a spouse. See § 768.21(8), Fla. Stat. (1999).
However, in the case of adult children of medical malpractice victims, the
Legislature has denied compensation for mental pain and suffering not because
the claims of the adult children are meritless, but because of the adult
children’s age and because their parents died as a result of medical
malpractice. . . .
. . . .
In sum, there is no indication that the distinction drawn by the
statute bears a reasonable relationship to a legitimate state interest
associated with ensuring accessible health care. Further, there is no indication
that the medical malpractice crisis that formed the basis for treating this
class of survivors differently than all other adult children even continues to
this day. I therefore believe that the challengers of this statute have met
their burden and have demonstrated that the distinction drawn by the Legislature
is arbitrary.
omitted).
wrongful death actions to a class of survivors in medical malpractice actions
was a denial of equal protection in Mizrahi apply in this context as
well. There is no evidence of a continuing medical malpractice crisis that would
justify the arbitrary reduction of survivors’ noneconomic damages in wrongful
death cases based on the number of survivors. This arbitrary reduction punishes
the survivors of victims of medical malpractice without any commensurate benefit
to the survivors and without a rational relationship to the goal of reducing
medical malpractice premiums. Accordingly, like the plurality, I would answer
the first rephrased certified question in the affirmative and hold that
Florida’s statutory cap on noneconomic damages is unconstitutional as applied to
wrongful death actions.
III. Disagreement with the Plurality Opinion
ultimate conclusion as to the unconstitutionality of the statute, I cannot join
in all of the plurality’s legal analysis. In particular, my disagreement stems
from my view that our precedent does not allow this Court to engage in the type
of expansive review of the Legislature’s factual and policy findings that the
plurality engages in when undertaking a constitutional rational basis analysis.
scholarship regarding the flaws in the Legislature’s conclusions as to the
existence of a medical malpractice crisis. See plurality op. at 18-28
(Lewis, J.). In my view, however, the rational basis test articulated by this
Court, based on precedent from the United States Supreme Court, is a deferential
standard. As explained by this Court in Echarte, 618 So. 2d at 196, “the
Legislature’s factual and policy findings are presumed correct” in a rational
basis analysis unless there has been a showing made that the findings are
“clearly erroneous.”
Counseling Services, Inc. v. State, 866 So. 2d 612, 627 (Fla. 2003),
involving a fundamental right, for the proposition that “courts must conduct
their own inquiry” of the Legislature’s findings. See plurality op. at 21
(Lewis, J.). My primary disagreement with the plurality’s analysis begins with
the extensive discussion that questions the “alleged medical malpractice crisis”
and relies on North Florida Women’s Health to support the plurality’s
review of available data to consider the “factors and circumstances involved.”
Plurality op. at 18, 21 (Lewis, J.).
privacy, which required strict scrutiny review, rather than rational basis
review, and in North Florida Women’s Health, a trial court had made
findings of fact based on a trial where both parties had the opportunity
to present evidence on the underlying issues. See N. Fla. Women’s
Health, 866 So. 2d at 616. Although the plurality capably demonstrates that
the Legislature’s conclusions as to the existence of a medical malpractice
crisis may be questionable, I respectfully conclude that there is simply no
precedent for this Court to engage in its own independent evaluation and
reweighing of the facts and legislative policy findings, as done by the
plurality, when conducting a rational basis analysis.
Insurance Co., 899 So. 2d 1090, 1095 (Fla. 2005), stands for the proposition
that the rational basis test envisions judicial consideration of the existing
factors and circumstances to determine whether the legislative findings were
fully supported. My review of Warren and the cases on which it relied,
however, reveals that this Court has never engaged in the type of expansive,
independent review when conducting a rational basis inquiry that the plurality
undertakes in this case. Instead, as Warren explained, the rational basis
test must be undertaken “in a light deferential to the Legislature’s action.”
Warren, 899 So. 2d at 1096.
approach to analyzing the alleged justification for the medical malpractice
crisis, there has been no showing made in this case that the Legislature’s
findings as to the existence of a crisis at that time were “clearly erroneous.”
Echarte, 618 So. 2d at 196. I emphasize again, however, that I agree with
many aspects of the plurality opinion, particularly the conclusion that the
arbitrary reduction of survivors’ noneconomic damages in wrongful death cases
based on the number of survivors lacks a rational relationship to the goal of
reducing medical malpractice premiums.
IV. Conclusion
wrongful death noneconomic damages in medical malpractice actions
unconstitutional but do not join in all of the plurality opinion’s reasoning.
(QUINCE and PERRY, JJ., concur.)
disregards the rational basis standard prescribed by our precedent as well as
the Legislature’s policy role under Florida’s constitution. The Legislature’s
policy choice of enacting a cap of $1 million on noneconomic damages in medical
malpractice cases involving death is rationally related to the legitimate state
interest of decreasing medical malpractice insurance rates and increasing the
affordability and availability of health care in Florida. Therefore, under our
precedent, the cap does not violate Florida’s constitutional guarantee of equal
protection. It also does not violate the access to courts, jury trial, and
separation of powers provisions of the Florida Constitution. Accordingly, I
would answer the four certified questions posed by the Eleventh Circuit Court of
Appeals in the negative.
I. Background
description of Michelle McCall’s tragic death following the birth of her son.
Ms. McCall’s parents and her son’s father (on behalf of her son) filed suit
against the United States pursuant to the Federal Tort Claims Act (FTCA), which
provides that the United States is liable for torts to the same extent as a
private individual would be under the applicable state’s law. Estate of
McCall v. United States, 642 F.3d 944, 947 (11th Cir. 2011); Estate of
McCall v. United States, 663 F. Supp. 2d 1276, 1288 (N.D. Fla. 2009). After
a two-day bench trial, the federal district court ruled that the United States
was liable for Ms. McCall’s death and found that “Plaintiffs’ economic damages,
or financial losses, amounted to $980,462.40.” McCall, 642 F.3d at 947.
Additionally, the federal district court “found that Plaintiffs’ noneconomic
damages, or nonfinancial losses, totaled $2 million, including $500,000 for Ms.
McCall’s son and $750,000 for each of her parents.” Id. The federal
district court then applied Florida’s statutory cap pursuant to section
766.118(2), Florida Statutes (2005), to limit Plaintiffs’ recovery for
noneconomic damages to an aggregate of $1 million. Id. The $1 million
capped amount for noneconomic damages “will be equitably divided among the
eligible survivors in proportion to their respective awards.” McCall, 663
F. Supp. 2d at 1295. The federal district court “also denied Plaintiffs’ motion
challenging the constitutionality of Florida’s statutory cap under both the
Florida and United States Constitutions.” McCall, 642 F.3d at 947.
to Florida’s statutory cap on noneconomic damages. First, the Eleventh Circuit
applied rational basis review to hold that Florida’s cap does not violate the
equal protection clause of the Fourteenth Amendment to the United States
Constitution. Id. at 950-51. The Eleventh Circuit reasoned as follows:
Plaintiffs ask us to second guess the legislature’s judgment in
enacting a “per incident” rather than “per claimant” statutory cap. However,
“equal protection is not a license for courts to judge the wisdom, fairness, or
logic of legislative choices.” Beach Commc’ns, Inc., 508 U.S. at 313. The
legislature identified a legitimate governmental purpose in passing the
statutory cap, namely to reduce the cost of medical malpractice premiums and
health care. See Fla. Stat. § 766.201. The means that Florida chose, a
per incident cap on noneconomic damages, bears a rational relationship to that
end. The Florida legislature could reasonably have concluded that such a cap
would reduce damage awards and in turn make medical malpractice insurance more
affordable and healthcare more available.
argument that the cap fails rational basis review because “the Florida
legislature ‘had no objective, factual basis for believing’ that a cap on
noneconomic damages . . . would reduce the cost of medical malpractice
insurance.” Id. at 950. To the contrary, the Eleventh Circuit found the
Legislature issued a report on the issue, held public hearings, heard expert
testimony, and reviewed another report prepared by the Governor’s Task Force
that recommended a per incident cap to remedy the problem. Id. at 950-51.
does not constitute a taking either under the Fifth Amendment to the United
States Constitution or under section 6 of article X of the Florida Constitution.
Id. at 951. The Eleventh Circuit stated that the cap does not deprive the
plaintiffs of a vested right, explaining that the cap was enacted in 2003 before
the medical malpractice at issue in the case took place in 2006. Id.
under the Florida Constitution, the Eleventh Circuit certified to this Court the
following questions:
(1) Does the statutory cap on noneconomic damages, Fla. Stat. §
766.118, violate the right to equal protection under Article I, Section 2 of the
Florida Constitution?
(2) Does the statutory cap on noneconomic damages, Fla. Stat. §
766.118, violate the right of access to the courts under Article I, Section 21
of the Florida Constitution?
(3) Does the statutory cap on noneconomic damages, Fla. Stat. §
766.118, violate the right to trial by jury under Article I, Section 22 of the
Florida Constitution?
(4) Does the statutory cap on noneconomic damages, Fla. Stat. §
766.118, violate the separation of powers guaranteed by Article II, Section 3
and Article V, Section 1 of the Florida Constitution?
II. Florida’s Caps on Noneconomic Damages
damages11 in medical malpractice cases,
and the limitations vary depending upon the circumstances. For cases involving
the negligence of practitioners providing nonemergency care, the limitation is
$500,000 per claimant, per incident, and per practitioner:
With respect to a cause of action for personal injury or wrongful
death arising from medical negligence of practitioners, regardless of the number
of such practitioner defendants, noneconomic damages shall not exceed $500,000
per claimant. No practitioner shall be liable for more than $500,000 in
noneconomic damages, regardless of the number of claimants.
permanent vegetative state, the cap rises to $1 million:
Notwithstanding paragraph (a), if the negligence resulted in a
permanent vegetative state or death, the total noneconomic damages recoverable
from all practitioners, regardless of the number of claimants, under this
paragraph shall not exceed $1 million.
in the absence of death or a permanent vegetative state if the trial court
determines that a manifest injustice would occur or if the negligence resulted
in a catastrophic injury. Id. However, section 766.118(2)(c), Florida
Statutes (2005), emphasizes that “[t]he total noneconomic damages recoverable by
all claimants from all practitioner defendants under this subsection shall not
exceed $1 million in the aggregate.”
limitation is $750,000. § 766.118(3)(a), Fla. Stat. (2005). This cap rises to
$1.5 million if the negligence caused a permanent vegetative state or death or
if the trial court determines that a manifest injustice would occur or if the
trier of fact determines that a catastrophic injury resulted. § 766.118(3)(b),
Fla. Stat. (2005). And section 766.118(3)(d), Florida Statutes (2005), provides
that “[t]he total noneconomic damages recoverable by all claimants from all
nonpractitioner defendants under this subsection shall not exceed $1.5 million
in the aggregate.”
plan enacted in 2003 to address the rising costs of medical liability insurance
and the affordability and availability of healthcare in Florida. See ch.
2003-416, Laws of Fla. Other components of the plan include new healthcare
facilities regulations, insurance regulation, license requirements, and agency
requirements. Id.
on Medical Liability Insurance, which “conducted an inquiry into the possible
causes and potential solutions to the vexing problems associated with the
availability of medical liability insurance in Florida.” Fla. H. Select Comm. on
Med. Liab. Ins., Select Comm. on Med. Liab. Ins. Rep., at 2 (March 2003)
(available at Fla. Dept. of State, Fla. State Archives, Tallahassee, Fla.). The
Select Committee examined “how the reduced availability of affordable medical
liability insurance affects the availability of medical services” and was
“mindful of the need to maintain the right of access to redress when citizens
are harmed during the delivery of medical services.” Id. at 3. The Select
Committee held a series of meetings in Tallahassee, held four hearings outside
the capital, and published an 82 page report (not including appendices).
Id. It “received testimony from experts in each of the professional areas
impacted” and reviewed records from efforts to address prior crises. Id.
at 4.
Force on Health Care Professional Liability Insurance, which produced a “345
page report as well as thirteen volumes of supportive materials.” Id. at
9. The Governor’s Task Force “undertook a comprehensive review of published
studies and relevant literature” and held ten meetings at which it received
extensive testimony and information. Gov.’s Select Task Force on Healthcare
Prof. Liab. Ins., Gov.’s Task Force on Healthcare Prof. Liab. Ins. Rep.,
at 3, iv (2003). The five members of the Governor’s Task Force were (1) John
Hitt, President of University of Central Florida, (2) Richard Beard, Trustee of
University of South Florida, (3) Marshall Criser, Jr., President Emeritus of
University of Florida, (4) Fred Gainous, President of Florida A&M
University, and (5) Donna Shalala, President of University of Miami. Id.
at 3. In the end, the Legislature based many of its findings and its policies
upon the work of the Governor’s Task Force, including the per incident cap on
noneconomic damages. See, e.g., ch. 2003-416, § 1, Laws of Fla.
Legislature made the following findings:
(1) The Legislature finds that Florida is in the midst of a medical
malpractice insurance crisis of unprecedented magnitude.
(2) The Legislature finds that this crisis threatens the quality and
availability of health care for all Florida citizens.
(3) The Legislature finds that the rapidly growing population and
the changing demographics of Florida make it imperative that students continue
to choose Florida as the place they will receive their medical educations and
practice medicine.
(4) The Legislature finds that Florida is among the states with the
highest medical malpractice insurance premiums in the nation.
(5) The Legislature finds that the cost of medical malpractice
insurance has increased dramatically during the past decade and both the
increase and the current cost are substantially higher than the national
average.
(6) The Legislature finds that the increase in medical malpractice
liability rates is forcing physicians to practice medicine without professional
liability insurance, to leave Florida, to not perform high-risk procedures, or
to retire early from the practice of medicine.
(7) The Legislature finds that there are certain elements of damage
presently recoverable that have no monetary value, except on a purely arbitrary
basis, while other elements of damage are either easily measured on a monetary
basis or reflect ultimate monetary loss.
(8) The Governor created the Governor’s Select Task Force on
Healthcare Professional Liability Insurance to study and make recommendations to
address these problems.
(9) The Legislature has reviewed the findings and recommendations of
the Governor’s Select Task Force on Healthcare Professional Liability
Insurance.
(10) The Legislature finds that the Governor’s Select Task Force on
Healthcare Professional Liability Insurance has established that a medical
malpractice crisis exists in the State of Florida which can be alleviated by the
adoption of comprehensive legislatively enacted reforms.
(11) The Legislature finds that making high-quality health care
available to the citizens of this state is an overwhelming public
necessity.
(12) The Legislature finds that ensuring that physicians continue to
practice in Florida is an overwhelming public necessity.
(13) The Legislature finds that ensuring the availability of
affordable professional liability insurance for physicians is an overwhelming
public necessity.
(14) The Legislature finds, based upon the findings and
recommendations of the Governor’s Select Task Force on Healthcare Professional
Liability Insurance, the findings and recommendations of various study groups
throughout the nation, and the experience of other states, that the overwhelming
public necessities of making quality health care available to the citizens of
this state, of ensuring that physicians continue to practice in Florida, and of
ensuring that those physicians have the opportunity to purchase affordable
professional liability insurance cannot be met unless a cap on noneconomic
damages is imposed.
(15) The Legislature finds that the high cost of medical malpractice
claims can be substantially alleviated by imposing a limitation on noneconomic
damages in medical malpractice actions.
(16) The Legislature further finds that there is no alternative
measure of accomplishing such result without imposing even greater limits upon
the ability of persons to recover damages for medical malpractice.
(17) The Legislature finds that the provisions of this act are
naturally and logically connected to each other and to the purpose of making
quality health care available to the citizens of Florida.
(18) The Legislature finds that each of the provisions of this act
is necessary to alleviate the crisis relating to medical malpractice
insurance.
III. Equal Protection
pursuant to section 766.118(2)(b), Florida Statutes, violates the right to equal
protection under the Florida Constitution by imposing additional burdens when an
act of medical negligence gives rise to multiple claims as well as when the
negligent act causes severe injuries. However, under the rational basis test our
precedent requires, McCall’s argument is without merit.
persons, female and male alike, are equal before the law. . . .” Florida’s
courts have interpreted this provision consistently with interpretations of the
equal protection clause of the United States Constitution. See, e.g.,
Duncan v. Moore, 754 So. 2d 708, 712 (Fla. 2000); Sasso v. Ram Prop.
Mgmt., 431 So. 2d 204, 211 (Fla. 1st DCA 1983).
omitted),
[e]qual protection is not violated merely because some persons are
treated differently than other persons. It only requires that persons similarly
situated be treated similarly. In the absence of a fundamental right or a
protected class, equal protection demands only that a distinction which results
in unequal treatment bear some rational relationship to a legitimate state
purpose. This is known as the rational basis test.
damages creates unequal treatment between those with noneconomic damages over
the cap and those with noneconomic damages under the cap, claiming that the most
severely injured are discriminated against. McCall also claims that the per
incident cap creates a discriminatory classification between those who are
members of larger families and those who are not. Because these alleged
classifications do not involve a protected class or a fundamental right,
McCall’s equal protection claim must be analyzed using the rational basis test.
whether it is conceivable that the regulatory classification bears some rational
relationship to a legitimate state purpose[:]”
The burden is upon the party challenging the statute or regulation
to show that there is no conceivable factual predicate which would
rationally support the classification under attack. Where the challenging party
fails to meet this difficult burden, the statute or regulation must be
sustained.
1983); see also Westerheide v. State, 831 So. 2d 93, 112 (Fla.
2002). It is not the judiciary’s task under the rational basis standard “to
determine whether the legislation achieves its intended goal in the best manner
possible, but only whether the goal is legitimate and the means to achieve it
are rationally related to the goal.” Loxahatchee River Envtl. Control Dist.
v. Sch. Bd. of Palm Beach Cnty., 496 So. 2d 930, 938 (Fla. 4th DCA 1986).
involving equal protection challenges to limitations on damages in medical
malpractice cases. For example, in Pinillos v. Cedars of Lebanon Hospital
Corp., 403 So. 2d 365 (Fla. 1981), this Court applied a rational basis
analysis when rejecting an equal protection challenge under both the Florida and
federal constitutions to a statute that required judgments in medical
malpractice actions to be reduced by amounts received from collateral sources.
This Court explained that the Legislature, when enacting the statute, had
determined that there was a medical malpractice liability insurance crisis in
Florida that was threatening public health. Pinillos, 403 So. 2d at 367.
Then, this Court concluded that “the classification created by section 768.50[,
Florida Statutes (1979),] bears a reasonable relationship to the legitimate
state interest of protecting the public health by ensuring the availability of
adequate medical care for the citizens of this state.” Id. at 368.
Court held that caps on noneconomic damages in certain medical malpractices
cases did not violate equal protection under either the United States or Florida
constitutions. See Univ. of Miami v. Echarte, 618 So. 2d 189 (Fla.
1993) (“[W]e have also considered the other constitutional claims and hold that
the statutes do not violate the right to trial by jury, equal protection
guarantees, substantive or procedural due process rights, the single subject
requirement, the taking clause, or the non-delegation doctrine.”). The statutes
at issue in Echarte capped noneconomic damages in medical malpractice
cases at $250,000 if the parties agreed to arbitrate. Id. at 193
(describing section 766.207(7), Fla. Stat. (Supp. 1988)). They also capped
noneconomic damages at $350,000 if the plaintiff proceeded to trial after
refusing a defendant’s offer to arbitrate. Id. (describing section
766.209(4), Fla. Stat. (Supp. 1988)).
children from recovering noneconomic damages for a parent’s death due to medical
malpractice did not violate the equal protection guarantees of the Florida and
federal constitutions. See Mizrahi v. N. Miami Med. Ctr., 761 So.
2d 1040 (Fla. 2000). In Mizrahi, this Court employed the rational basis
test and explained that “the Legislature referred to and discussed the medical
malpractice crisis and its adverse impact on the accessibility of health care
during the passage of section 768.21.” Id. at 1042. And this Court stated
that it had previously recognized the medical malpractice crisis as a legitimate
state interest in Echarte. Id. at 1042 n.3. This Court further
explained that “limiting claims that may be advanced by some claimants would
proportionally limit claims made overall and would directly affect the cost of
providing health care by making it less expensive and more accessible.”
Id. at 1043. Thus, because the exclusion is rationally related to
controlling costs and healthcare accessibility, the statute at issue in
Mizrahi did not violate equal protection. Id.
concerns about the noneconomic damages caps that had previously passed
constitutional muster in Echarte. See St. Mary’s Hosp. v.
Phillipe, 769 So. 2d 961 (Fla. 2000). In Phillipe, this Court held
that the noneconomic damages caps under section 766.207 applied to claimants
individually rather than on a per incident basis. 769 So. 2d at 972. In reaching
this holding, this Court first concluded that “section 766.207(7)(b) is neither
clear nor unambiguous.” Id. at 968. Then, this Court found that the
Legislature’s intent with the statute was to “provide substantial incentives to
claimants and defendants to voluntarily submit their cases to binding
arbitration” and that this intent “can be obtained by interpreting section
766.207(7)(b) so that each claimant is fairly and reasonably compensated for his
or her pain and suffering.” Id. at 970. Moreover, this Court stated,
“were we to interpret the noneconomic damages cap to apply to all claimants in
the aggregate, we conclude that such an interpretation would create equal
protection concerns.” Id. at 971. Thus, this Court mentioned in
Phillipe that “[d]ifferentiating between a single claimant and multiple
claimants bears no rational relationship to the Legislature’s stated goal of
alleviating the financial crisis in the medical liability insurance industry.”
Id.
identical to the equal protection concern this Court had mentioned in
Phillipe. Specifically, in Samples v. Florida Birth-Related
Neurological Injury Compensation Ass’n, 114 So. 3d 912, 917 (Fla. 2013), the
Samples argued that the $100,000 parental award under the Florida Birth-Related
Injury Compensation Plan violated equal protection under the Florida and federal
constitutions because “those parents who apply for an award alone can receive
twice the amount awarded to parents who share or split a parental award.”
Applying the rational basis test, this Court in Samples concluded that
“[l]imiting the parental award to $100,000 per claim — as opposed to per parent
— is rationally related to maintaining the actuarial soundness of the Plan.”
Id. Therefore, this Court upheld the statutory provision. Id.
Ninth, and Eleventh Circuits have all upheld limitations on noneconomic damages
in medical malpractice cases against equal protection challenges. See
McCall, 642 F.3d at 951; Smith v. Botsford Gen. Hosp., 419 F.3d
513, 520 (6th Cir. 2005) (“By limiting at least one component of health care
costs, the noneconomic damages limitation is rationally related to its intended
purpose.”) (quoting Zdrojewski v. Murphy, 657 N.W.2d 721, 739 (Mich. Ct.
App. 2002)); Boyd v. Bulala, 877 F.2d 1191, 1197 (4th Cir. 1989) (holding
that cap on all damages, including economic damages, does not deny equal
protection because it “bears a reasonable relation to a valid legislative
purpose — the maintenance of adequate health care services in the Commonwealth
of Virginia”); Davis v. Omitowoju, 883 F.2d 1155, 1158 (3d Cir. 1989)
(“Clearly the Virgin Island’s decision to curb, through legislation, the high
costs of malpractice insurance and thereby promote quality medical care to the
residents of the islands, provides a rational basis for capping the amount of
damages that can be awarded a plaintiff.”); Lucas v. United States, 807
F.2d 414, 422 (5th Cir. 1986) (“Lucas has failed to convince us that there is no
reasonable basis for the Texas legislature to conclude that this ceiling on
recovery from certain institutions is not conceivably related to the
availability and cost of malpractice insurance and that such insurance and the
distribution of medical care in Texas are not conceivably linked.”); Hoffman
v. United States, 767 F.2d 1431, 1437 (9th Cir. 1985) (“The record clearly
supports a finding that the California Legislature had a ‘plausible reason’ to
believe that the limitations on noneconomic recovery would limit the rise in
malpractice insurance costs.”).
to statutory caps on noneconomic damages. See, e.g., Fein v.
Permanente Med. Grp., 695 P.2d 665 (Cal. 1985); Zdrojewski v. Murphy,
657 N.W.2d 721 (Mich. Ct. App. 2002); Adams v. Children’s Mercy Hosp.,
832 S.W.2d 898 (Mo. 1992), overruled on other grounds by Watts v.
Lester E. Cox Med. Ctrs., 376 S.W.3d 633, 636 (Mo. 2012); Judd v.
Drezga, 103 P.3d 135 (Utah 2004); Etheridge v. Med. Ctr. Hosps., 376
S.E.2d 525 (Va. 1989); Robinson v. Charleston Area Med. Ctr. Inc., 414
S.E.2d 877 (W. Va. 1991).
this case passes constitutional muster. When enacting the noneconomic damages
cap at issue here, the Legislature found that “Florida is in the midst of a
medical malpractice insurance crisis of unprecedented magnitude” and that “this
crisis threatens the quality and availability of health care for all Florida
citizens.” Ch. 2003-416, at § 1. The Legislature concluded that the “cost of
medical malpractice insurance has increased dramatically during the past decade”
and that “both the increase and the current cost are substantially higher than
the national average.” Id. As a result, physicians are being forced “to
practice medicine without professional liability insurance, to leave Florida, to
not perform high-risk procedures, or to retire early from the practice of
medicine.” Id.
insurance crisis as a legitimate state interest. See Mizrahi, 761
So. 2d at 1042 n.3; Echarte, 618 So. 2d at 196-97. Further, it is
undisputed that increasing the quality, availability, and affordability of
health care for Floridians is a legitimate state interest. And the Legislature’s
policy choice of enacting a cap on noneconomic damages in medical malpractice
cases is rationally related to these state interests. As this Court explained in
Mizrahi, 761 So. 2d at 1043, “limiting claims that may be advanced by
some claimants would proportionally limit claims made overall and would directly
affect the costs of providing health care by making it less expensive and more
accessible.” In fact, “it is hard to conceive a more rational means of assuaging
the fear of huge damage awards and reining in insurance costs in the case of a
victim’s death than by limiting noneconomic wrongful death damages.” Maurin
v. Hall, 682 N.W.2d 866, 890-91 (Wis. 2004).
that the cap on noneconomic damages under section 766.118(2)(b) would reduce
malpractice damage awards, which would thereby increase predictability in the
medical malpractice insurance market and lead to reduced insurance premiums.
Then, as a result of decreased insurance premiums, physicians would be more
willing to stay in Florida and perform high-risk procedures at a lower cost to
Floridians.12
protection guarantee because it applies on a per incident, rather than a per
claimant, basis. However, the Legislature could have reasonably believed that a
per incident cap would more effectively reduce noneconomic damages awards and
create more stability in the insurance market than a per claimant cap would. A
per incident cap leads to more predictability in the insurance market since the
noneconomic damages cannot exceed the cap in any particular instance of
malpractice regardless of the number of individual claimants. And the
Legislature could have reasonably believed that this increased predictability
would more effectively decrease medical malpractice insurance rates, thereby
keeping more physicians in Florida to provide more access to quality health care
(including high-risk procedures) at a lower cost to Floridians.
argument regarding the same statutory cap at issue here,
[t]he aggregate limit on non-economic damages — applying to each
incident regardless of the number of claimants — serves precisely the same
legitimate interest served by individual caps: by reducing damage awards, limits
on damages make medical malpractice insurance more affordable and quality
healthcare services more available. A cap applicable to each occurrence, in
cooperation with caps individually applicable to each claimant, reduces damage
awards as a matter of mathematical certainty, enhances needed predictability,
places a calculable limit on the exposure of healthcare and insurance providers,
reduces malpractice insurance premiums, and promotes the availability of quality
healthcare.
because the more severely injured may not recover their full damages, unlike
those whose damages fall under the cap. However, if this were an equal
protection violation, no cap on damages could survive equal protection review
because all caps have that effect. And this Court has rejected equal protection
challenges to caps on damages previously. See Echarte, 618 So. 2d
189; see also Phillipe, 769 So. 2d 961. In fact, in
Echarte, this Court rejected an equal protection challenge under the
Florida Constitution to statutory caps on noneconomic damages when the parties
and amici advanced the precise argument that McCall raises here, namely that the
noneconomic damages cap discriminated against the most severely injured.
Therefore, under this Court’s precedent, McCall’s equal protection argument
based upon the fact that some may not fully recover is without merit.
Ultimately, “the Legislature simply may have felt that it was fairer to
malpractice plaintiffs in general to reduce only the very large noneconomic
damage awards, rather than to diminish the more modest recoveries for pain and
suffering and the like in the great bulk of cases.” Fein, 695 P.2d at
683.
concludes that the statutory cap is “unfair” and “purely arbitrary” by citing
two other state supreme courts and improperly relying on dicta from our decision
in Phillipe, while ignoring the fact that this Court in Samples
very recently rejected an argument that was nearly identical to the dicta
expressed in Phillipe. See plurality op. at 9-13 (Lewis, J.).
inappropriate and unprecedented,13 Justice
Lewis’ plurality opinion addresses McCall’s equal protection challenge by
conducting a de novo review of medical malpractice issues, overruling the
findings made by the Legislature, and disregarding the evidence upon which those
findings were based. Justice Lewis’ plurality opinion reweighs the evidence and
disbelieves the Governor’s Task Force as well as the legislative testimony,
claiming that its own independent review has revealed that the other two
branches were incorrect and that a “bona fide medical malpractice crisis”
probably did not and certainly does not currently exist. See id.
at 18-28, 35-40. Additionally, despite the Legislature’s and the Task Force’s
conclusions on the matter after reviewing the evidence, this plurality’s
independent review has revealed that the “available data” “failed to establish a
direct correlation between damage caps and reduced malpractice premiums.”
Id. at 28, 35.
the Legislature based upon the hardly unambiguous data14 that the plurality could cull from the record and
the internet, that is not the point. Instead, our precedent dictates that we
employ the rational basis test, which is a relatively easy test for a statute to
pass and which recognizes and respects the Legislature’s role as the primary
policymaker in our constitutional system. See McElrath v. Burley,
707 So. 2d 836, 839 (Fla. 1st DCA 1998) (explaining that the rational basis test
provides “minimal scrutiny” under which the challenger bears “a heavy burden”);
see also Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307, 314
(1976) (“This inquiry employs a relatively relaxed standard reflecting the
Court’s awareness that the drawing of lines that create distinctions is
peculiarly a legislative task and an unavoidable one.”). In fact, the rational
basis standard is less stringent than the deferential competent substantial
evidence standard we employ when reviewing our own branch’s findings of
fact.15 Under the rational basis standard,
there just has to be a conceivable factual predicate that would provide a
rational reason for the Legislature to have done what it chose to do. See
Fla. High School Activities Ass’n, 434 So. 2d at 308 (“The burden is upon
the party challenging the statute . . . to show that there is no
conceivable factual predicate which would rationally support the classification
under attack. . . .”). The statute does not need to be supported by unequivocal
evidence in the record from the point in time when the statute was enacted or by
more recent and allegedly authoritative reports posted on the internet. In other
words, as Justice Pariente’s concurring in result opinion recognizes, this Court
is not supposed to conduct an independent review of available data. See
Heller v. Doe, 509 U.S. 312, 320 (1993) (“A State, moreover, has no
obligation to produce evidence to sustain the rationality of a statutory
classification. ‘[A] legislative choice is not subject to courtroom factfinding
and may be based on rational speculation unsupported by evidence or empirical
data.’ ”) (quoting F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 315
(1993)). Rather, if we can conceive of a possible factual predicate that
provides a rational basis in furtherance of a legitimate state interest, the
statute does not violate the equal protection provision of the Florida
Constitution.
noneconomic damages passes muster because it is rationally related to the
legitimate state interest of decreasing medical malpractice insurance rates and
increasing the affordability and availability of health care in Florida.
Accordingly, I would answer the Eleventh Circuit’s equal protection question in
the negative and then address its access to courts, jury trial, and separation
of powers questions.
IV. Access to Courts
507 So. 2d 1080 (Fla. 1987), McCall contends that section 766.118(2)’s $1
million cap on noneconomic damages does not satisfy the access to court test set
forth in Kluger v. White, 281 So. 2d 1 (Fla. 1973). I would hold
otherwise.
courts shall be open to every person for redress of any injury, and justice
shall be administered without sale, denial or delay.” In Kluger, 281 So.
2d at 4, this Court enunciated the following test for determining whether a
statute violates this constitutional guarantee:
[W]here a right of access to the courts for redress for a particular
injury has been provided by statutory law predating the adoption of the
Declaration of Rights of the Constitution of the State of Florida, or where such
right has become a part of the common law of the State pursuant to Fla. Stat. §
2.01, F.S.A., the Legislature is without power to abolish such a right without
providing a reasonable alternative to protect the rights of the people of the
State to redress for injuries, unless the Legislature can show an overpowering
public necessity for the abolishment of such right, and no alternative method of
meeting such public necessity can be shown.
eliminating redress for an injury must satisfy at least one of two possible
prongs: (1) either the statute must provide a reasonable alternative to redress
the injury involved, or (2) the Legislature must show that there was “an
overpowering public necessity for the abolishment” and that there was “no
alternative method of meeting such public necessity.” Id.
Kluger to hold that the statutory caps on noneconomic damages in medical
malpractice cases when a party requests arbitration do not violate the right of
access to courts. Specifically, this Court upheld the $250,000 cap on
noneconomic damages if the parties agree to voluntary binding arbitration as
well as the $350,000 cap if the plaintiff refuses a defendant’s offer to
arbitrate. In its analysis, this Court in Echarte ruled that the first
Kluger alternative was satisfied because “[t]he defendant’s offer to have
damages determined by an arbitration panel provides the claimant with the
opportunity to receive prompt recovery without the risk and uncertainty of
litigation or having to prove fault in a civil trial.” Echarte, 618 So.
2d at 194. Next, this Court held that “[e]ven if the medical malpractice
arbitration statutes at issue did not provide a commensurate benefit, we would
find that the statutes satisfy the second prong of Kluger.” Id. at
195.
restraint when reviewing the legislative findings necessary to satisfy the
second prong of Kluger. Specifically, this Court stated the “legislative
determinations of public purpose and facts are presumed correct and entitled to
deference, unless clearly erroneous.” Id. at 196. This Court explained
that “[t]he Legislature has the final word on declarations on public policy, and
the courts are bound to give great weight to legislative determinations of
facts.” Id.
of an overwhelming public necessity by explaining that the preamble to the
statute at issue “clearly states the Legislature’s conclusion that the current
medical malpractice insurance crisis constitutes an ‘overpowering public
necessity.’ ” Id. This Court also noted that the “Legislature made a
specific factual finding that ‘[m]edical malpractice liability insurance
premiums have increased dramatically in recent years, resulting in increased
unavailability of malpractice insurance for some physicians.’ ” Id.
(quoting § 766.201(1)(a)). Then, this Court concluded that the Legislature’s
findings were supported by the work of the Academic Task Force for Review of the
Insurance and Tort Systems, which found, among other things, that “a family
physician who performs no surgery and practiced outside Dade and Broward
Counties saw a 229% increase in medical malpractice insurance premiums.”
Id. This Task Force had based its findings upon seven public hearings and
meetings as well as surveys, research projects, and a literature review.
Id. at 196 n.17. Based upon this record, this Court concluded that “the
Legislature has shown that an ‘overpowering public necessity’ exists.”
Id. at 196-97.
matter, this Court in Echarte held that “the record supports the
conclusion that no alternative or less onerous method exists.” Id. at
197. This Court noted that “in determining whether no alternative means exists
to meet the public necessity of ending the medical malpractice crisis, the plan
as a whole, rather than focusing on one specific part of the plan, must be
considered.” Id. This Court explained that the Task Force believed that
“reforms of the civil justice system, of the medical regulatory system, and of
the insurance system complement each other” and that “all are necessary to
address the complex problems with multiple causes” of the medical malpractice
insurance crisis. Id. (quoting the Task Force’s recommendations to the
Legislature). And this Court in Echarte rejected the contention that
professional discipline alone would have been an alternative method to meet the
public necessity at issue, explaining that “the Task Force specifically found
that: ‘[s]trengthened regulation of medical care providers is not a substitute
for tort and insurance reform.’ ” Id. (quoting Task Force). “The Task
Force specifically stated that even though a small percentage of the physicians
were responsible for 42.2% of the total claims paid out, the facts did not
support the conclusion that these doctors were incompetent.” Id. Thus,
because it was “clear that both the arbitration statute, with its conditional
limits on recovery of noneconomic damages, and the strengthened regulation of
the medical profession are necessary to meet the medical malpractice insurance
crisis,” this Court in Echarte held that the second prong of
Kluger was satisfied. Id.
in this case expressly found that “Florida is in the midst of a medical
malpractice insurance crisis of unprecedented magnitude” and that “making
high-quality health care available to the citizens of this state,” “ensuring
that physicians continue to practice in Florida,” and “ensuring the availability
of affordable professional liability insurance for physicians” are overwhelming
public necessities. Ch. 2003-416, at § 1. The Legislature specifically found
that “Florida is among the states with the highest medical malpractice insurance
premiums in the nation” and that “the cost of medical malpractice insurance has
increased dramatically during the past decade and both the increase and the
current cost are substantially higher than the national average.” Id.
Further, the Legislature determined that “the increase in medical malpractice
liability insurance rates is forcing physicians to practice medicine without
professional liability insurance, to leave Florida, to not perform high-risk
procedures, or to retire early from the practice of medicine.” Id.
supported by the determinations of the Governor’s Task Force. For example, in
its report, the Governor’s Task Force concluded that the cost of medical
malpractice insurance had increased dramatically, explaining the following
particulars:
In 2002 the average medical malpractice premium per doctor in
Florida was 55 percent higher than the national average. Florida’s average
insurance premiums have increased 64 percent since 1996 while nationally the
average insurance premiums have increased 26 percent.
testimony indicating that “[i]n Georgia, physicians pay from $5,000 to $6,000
for $1,000,000 of coverage. Thirty miles south, in Jacksonville, that costs
$27,000.” Id. at 76. And the Task Force noted that:
[t]he Professional Medical Insurance Services, Inc., underwriters
for Florida physicians, estimates that, in 2003, for OB/GYNs who presently have
coverage, costs for $1 million dollar[s] of coverage will average between
$70,000 and $110,000 per year; $250,000 of coverage will cost between $50,000
and $60,000 per year. For OB/GYNs seeking new insurance in 2003, estimates show
that $1 million dollars in coverage will cost $150,000 per year[ ] and $250,000
in coverage will cost between $90,000 and $107,000 per year. As a result of
these escalating costs, physicians are simply either under insuring or becoming
uninsured with regard to their practices.
that 80 percent of the OB/GYNs carry no insurance and those who do are paying
over $207,000 per year for $1 million dollars worth of coverage.” Id. And
“[t]he number of insurance companies writing medical malpractice policies in
Florida went from a high of sixty-six companies in 1999 to twelve currently.”
Id. at v. The Task Force also described testimony indicating that, as a
result of these issues, over half the doctors in Florida that carry insurance
can only afford to carry a $250,000 policy even though the most prevalent rate
in the rest of the country is for a doctor to carry a $1,000,000 policy.
Id. at 76. The Task Force further found that “[t]he concern over
litigation and the cost and lack of medical malpractice insurance have caused
doctors to discontinue high-risk procedures, turn away high-risk patients, close
practices, and move out of the state.” Id. at vi. Indeed, “[i]n Broward
County alone, 400 physicians have left the state, or retired early in the past
year.” Id. at 72. The Task Force learned that “[i]n one instance, a Fort
Lauderdale pediatric orthopedic surgeon’s premiums went from $32,000 to $96,000
a year.” Id. Due to this increase, the surgeon reported a plan “to return
to his home state, Louisiana, as that state has tort reform.” Id.
Therefore, because the Legislature’s factual and policy findings are presumed
correct (as explained in Echarte), and because (as in Echarte)
these findings are supported by the work of the Governor’s Task Force, the
Legislature has shown the existence of an “overpowering public necessity.”
prong of Kluger, the Legislature expressly found that “the overwhelming
public necessities of making quality health care available to the citizens of
this state, of ensuring that physicians continue to practice in Florida, and of
ensuring that those physicians have the opportunity to purchase affordable
professional liability insurance cannot be met unless a cap on noneconomic
damages is imposed.” Ch. 2003-416, at § 1(14), Laws of Fla. The Legislature
determined that “the high cost of medical malpractice claims can be
substantially alleviated by imposing a limitation on noneconomic damages” and
that “there is no alternative measure of accomplishing such result without
imposing even greater limits upon the ability of persons to recover damages for
medical malpractice.” Ch. 2003-416, at § 1(15), (16), Laws of Fla. The
Legislature also found that “each of the provisions of this act is necessary to
alleviate the crisis relating to medical malpractice insurance.” Ch. 2003-416,
at § 1(18), Laws of Fla.
instance, the Governor’s Task Force stated that, “without the inclusion of a cap
on potential awards of non-economic damages in the package, no legislative
reform plan can be successful in achieving a goal of controlling increases in
healthcare costs and thereby promoting improved access to healthcare.” Gov.’s
Task Force Rep. at 218. The Task Force noted that various other alternatives
had been tried previously without success:
Since 1975, Florida has implemented (or attempted to implement)
numerous alternatives to the cap on non-economic damages and the other reforms
recommended in this Report. None, alone or together with the others, has solved
the crisis of medical malpractice insurance availability and affordability.
Instead, Florida’s numerous attempts to solve this problem are nothing more than
a failed litany of alternatives.
medical malpractice crisis is that a large percentage of medical malpractice
losses (77 percent in Florida) apply to non-economic damages (i.e., pain and
suffering).” Id. at 212. The Task Force also stated its belief that “caps
on non-economic damages are particularly effective, because they limit the
escalation of awards for pain and suffering, which fuels large increases for all
awards and settlements.” Id. In fact, the Task Force thought that a cap
on noneconomic damages was so important to alleviating the crisis and lowering
premiums that it recommended a $250,000 per incident cap on noneconomic damages,
rather than the $1 million per incident cap at issue in this case. See
id. at xi. Based upon this record, the Legislature has shown that “no
alternative or less onerous method exists.” Echarte, 618 So. 2d at 197.
necessity for the cap on noneconomic damages and that there is no alternative
method of meeting the public necessity, the second prong of Kluger (as
applied in Echarte) is satisfied. Therefore, section 766.118(2)(b) does
not violate the right of access to court guaranteed by the Florida Constitution.
V. Jury Trial
to a jury trial guaranteed by the Florida Constitution. However, I would
disagree and therefore answer the Eleventh Circuit’s certified question in the
negative.
of trial by jury shall be secure to all and remain inviolate.” Florida’s “first
constitution of 1838, which became effective upon Florida’s admittance to the
Union in 1845, and all subsequent constitutions have contained similar
provisions.” In re 1978 Chevrolet Van, 493 So. 2d 433, 434 (Fla. 1986).
Thus, section 22 of article I “guarantees the right to trial by jury in those
cases in which the right was enjoyed at the time this state’s first constitution
became effective in 1845.” Id.
wrongful death did not have the right to recover noneconomic damages in 1845.
“It is well known that at common law the cause of action died with the person
and that a parent had no right of action as parent for the wrongful death of a
minor child.” Klepper v. Breslin, 83 So. 2d 587, 592 (Fla. 1955). Parents
only gained this statutory right in 1899. Id. at 591. Other survivors
were not entitled to recover pain and suffering damages until the Legislature
enacted the Wrongful Death Act in 1972. See ch. 72-35, Laws of Fla.;
Lifemark Hosps. of Fla., Inc. v. Afonso, 4 So. 3d 764, 769 (Fla. 3d DCA
2009) (“A survivor’s right to recover pain and suffering did not become part of
the Wrongful Death Act until 1972. . . .”); see also Martin v. United
Sec. Servs., Inc., 314 So. 2d 765, 767-68 (Fla. 1975) (describing the
damages that were recoverable before and after the enactment of the Wrongful
Death Act in 1972). Therefore, because the petitioners would not have had the
right to recover damages from Ms. McCall’s death in 1845, the cap on noneconomic
damages under section 766.118(2)(b) does not violate the right to a jury trial
guaranteed by the Florida Constitution.
VI. Separation of Powers
Florida Constitution’s provision ensuring separation of powers because the cap
amounts to an impermissible legislative remittitur. I would reject this
argument.
of the state government shall be divided into legislative, executive and
judicial branches. No person belonging to one branch shall exercise any powers
appertaining to either of the other branches unless expressly provided herein.”
As this Court has explained, “[g]enerally, the Legislature is empowered to enact
substantive law while [the judicial branch] has the authority to enact
procedural law.” Massey v. David, 979 So. 2d 931, 936 (Fla. 2008).
Therefore, “[i]f a statute is clearly substantive and operates in an area of
legitimate legislative concern, this Court will not hold that it constitutes an
unconstitutional encroachment on the judicial branch.” Id. at 937.
1989) (footnote omitted), this Court explained remittitur as follows:
In its classic sense, the term “remittitur” means nothing more than
“[t]he procedural process by which a verdict of the jury is diminished by
subtraction.” Black’s Law Dictionary 1164 (5th ed. 1979). Indeed, when
remittitur was created in 1822 by Justice Story, it was for the express purpose
of subtracting a specific amount from an excessive verdict if the plaintiff
wanted to avoid the court’s alternative new-trial order. Blunt v. Little,
3 F. Cas. 760, 762 (No. 1578) (C.C.A. Mass. 1822). See Note,
Remittitur Practice in the Federal Courts, 76 Colum. L. Rev. 299, 300
(1976) (discussing history of remittitur). Thus, remittitur is proper where
liability clearly exists, but the total dollar amount of damages is merely
excessive.
damages back within the outer bounds of law.” Rowlands, 549 So. 2d at
1382 n.1.
because it does not operate as a legislative remittitur. The statutory cap
establishes a limit to noneconomic damages in medical malpractice cases
generally. It does not perform the judiciary’s function of reviewing the
specific support for particular damage awards in individual cases. Accordingly,
“[b]ecause the challenged law does not purport to vest the Legislature with
authority to make a fact intensive, case-by-case determination of the propriety
of damage awards in individual cases, it does not usurp the authority of the
judiciary.” M.D., 745 F. Supp. 2d at 1281.
argument that statutory limitations on punitive damages violated Florida’s
separation of powers provision. See also Echarte, 618 So. 2d at
191 (holding that the caps on noneconomic damages in medical malpractice cases
where a party offers arbitration do not violate “the non-delegation doctrine”);
Cauley, 403 So. 2d at 387 (holding that caps on damages in tort cases
against municipalities do not violate “the separation of powers rule”). This
Court in Smith explained that “[w]hen the legislature enacted these
provisions, it was addressing the substantive rights of plaintiffs and
defendants in civil litigation actions with regard to recovery of damages.” 507
So. 2d at 1092. This Court also approved the following reasoning the trial court
employed when rejecting the separation of powers claim:
Sections 51 and 52 deal with the subject of punitive damages.
Section 51 defines the conditions the plaintiff must meet to recover punitive
damages. Section 52 limits the amount of punitive damages available in certain
civil actions. In addition, section 52 specifies who shall receive any punitive
damages so awarded. Section 51 is clearly substantive because it sets the
standard for establishing a claim for punitive damages. The legislature, which
has the authority to abolish punitive damages can surely set the standard for
establishing such claims. The Court is of the view that both sections create
substantive rights and further that any procedural provisions of these sections
are intimately related to the definition of those substantive
rights.
on noneconomic damages at issue here addresses the substantive rights of parties
with regard to the recovery of damages. And because section 766.118(2)(b)
addresses substantive rights, it does not violate the separation of powers
clause of the Florida Constitution.
VII. Conclusion
standard prescribed by our precedent as well as the Legislature’s policy role
under Florida’s constitution. Under our precedent, Florida’s per incident cap
for a wrongful death action does not violate Florida’s constitutional guarantees
of equal protection, access to courts, jury trial, and separation of powers.
Therefore, I would answer the certified questions from the Eleventh Circuit in
the negative. I respectfully dissent. (CANADY, J., concurs.)
the law of the State where the tortious act was committed, 28 U.S.C. § 1346(b),
. . . subject to the limitations that the United States shall not be liable for
‘interest prior to judgment or for punitive damages.’ ” Hatahley v. United
States, 351 U.S. 173, 182 (1956) (quoting 28 U.S.C. § 2674).
damages and wrongful death damages are not the same. The present case is
exclusively related to wrongful death, and our analysis is limited accordingly.
noneconomic damages into two categories, providing different limitations on
damages for practitioners and nonpractitioners. See § 766.118(2), (3),
Fla. Stat. Section 766.118(3), Florida Statutes, limits noneconomic damages for
the negligence of nonpractitioner defendants. The Petitioners asserted that they
were entitled to recover under this subsection as well; however, the federal
district court noted that “no evidence at trial singled out a specific
nonpractitioner for negligent conduct.” McCall, 642 F.3d at 948-49
(quoting Estate of McCall v. United States, 663 F. Supp. 2d 1276, 1295
(N.D. Fla. 2009)). The federal district court concluded that the Petitioners had
failed to establish that Ms. McCall’s death resulted from the negligence of a
nonpractitioner, and the Eleventh Circuit affirmed this determination.
Id. at 949.
that the cap violated the special legislation clause of the Illinois
Constitution. Best v. Taylor Mach. Works, 689 N.E.2d 1057, 1078 (Ill.
1997). This clause “expressly prohibits the General Assembly from conferring a
special benefit or exclusive privilege on a person or a group of persons to the
exclusion of others similarly situated.” Id. at 1069. The Supreme Court
of Illinois noted that special legislation constitutional challenges are
generally “judged under the same standards applicable to an equal protection
challenge.” Id. at 1070-71.
from 1991 until 2003, judgments at trial accounted for only 4 percent of all
malpractice payments. Amitabh Chandra, Shantanu Nundy, & Seth A.
Seabury, The Growth Of Physician Medical Malpractice Payments: Evidence From
The National Practitioner Data Bank, Health Affairs at W5-240, W5-243 (May
31, 2005), available at
http://content.healthaffairs.org/content/early/2005/05/31/hlthaff.w5.240.full.pdf+html.
exception, cases with verdicts in excess of $4 million settled for, on average,
37 percent less than the verdict. Million Dollar Medical Malpractice Cases in
Florida, 59 Vand. L. Rev. at 1380.
Columbia is being referred to as a ‘state’ since it effectively operates as such
with regard to insurance regulation.” Medical Malpractice Caps, at 7 n.4.
legal actions for statistical purposes.
Doctors Company, Mag Mutual Insurance Company, ProAssurance Corporation, and
First Professionals Insurance Company. Each of the three remaining insurance
companies posts its annual reports online. See
http://www.thedoctors.com/TDC/Financials/CON_ID_000780;
http://www.magmutual.com/annual-reports; and
http://www.proassurance.com/investorrelations/annualreport.aspx. In October
2011, the Doctors Company merged with the parent company of FPIC. See
http://www.thedoctors.com/TDC/PressRoom/PressContent/CON_ID_004471. Since FPIC
is no longer an independent entity, the 2003 annual report for FPIC is not
available on the website for a specific insurance company, but is available at
http://www.rocketfinancial.com/IRVault.aspx?fID=6352&tID=1002. Every
insurance company authorized to conduct business in Florida is required to file
an annual statement “of its financial condition, transactions, and affairs” with
the Office of Insurance Regulation. Fla. Admin. Code R. 69O-137.001(2)(a).
2012 one medical malpractice insurance company nonetheless charged obstetricians
in Miami-Dade County more than $190,000 for $1 million of coverage. See
2013 FLOIR Annual Report at 57. The company charged obstetricians in other
Florida counties approximately $98,000 for the same coverage. Id. at 58.
During 2012, the same company charged orthopedists in Miami-Dade County more
than $115,000 for $1 million of coverage, whereas orthopedists in other Florida
counties were charged approximately $59,000. Id. at 57-58.
(2005), defines noneconomic damages as “nonfinancial losses that would not have
occurred but for the injury giving rise to the cause of action, including pain
and suffering, inconvenience, physical impairment, mental anguish,
disfigurement, loss of capacity for enjoyment of life, and other nonfinancial
losses to the extent the claimant is entitled to recover such damages under
general law, including the Wrongful Death Act.”
which the Legislature expressly relied, concluded as much:
[I]mposing caps on non-economic damages in medical malpractice cases
will significantly reduce the exposure of Florida healthcare providers to risk
of loss from jury awards of inherently subjective damages. Such a reduction of
risk will make malpractice losses much more predictable, and thereby lead to
stability in malpractice insurance premium rates.
A reduction in potential liability and resulting stability will
encourage more malpractice insurers to participate in the Florida market. This,
along with the reduced exposure to risk, will permit insurers to charge lower
premiums, on a sound financial basis. Lower premiums will encourage providers
(particularly those in high-risk specialties) to offer healthcare services to
Floridians, and persons visiting this state, and to do so at lower
prices.
54 (Pariente, J.) (“[T]here is simply no precedent for this Court to engage in
its own independent evaluation and reweighing of the facts and legislative
policy findings, as done by the plurality, when conducting a rational basis
analysis.”).
malpractice filings have decreased significantly since fiscal year 2003-04 and
that Florida, according to a 2011 report, is now retaining a fairly high
percentage of Florida-trained medical students. See plurality op. at
36-37 (Lewis, J.). While he uses this information to support the plurality’s
argument that the statutory caps are no longer justified because a medical
malpractice crisis does not currently exist, this information just as easily
(and perhaps more likely) supports the argument that the cap has had its
intended effect and that, if the cap is eliminated, the medical malpractice
crisis would return in full force.
substantial evidence to support the Legislature’s findings of fact. For example,
one actuary testified before the Governor’s Task Force that “[m]aking losses
more predictable is a key to attracting companies to provide coverage, and it is
also a key to getting more stable pricing in the marketplace.” And there was
testimony that “[i]n Georgia, physicians pay from $5,000 to $6,000 for
$1,000,000 of coverage. Thirty miles south, in Jacksonville, that costs
$27,000.” Moreover, “[i]n one instance, a Fort Lauderdale pediatric orthopedic
surgeon’s premiums went from $32,000 to $96,000 a year,” and, due to the
increase, the surgeon planned to move to a state with tort reform.
* * *