Torts
— Medical malpractice — Brain injury to child — Evidence — Collateral
source benefits — Trial court did not err in excluding evidence pertaining to
free or low-cost medical care available to child where the cost of the care
would be paid by Medicaid — Evidence of future benefits from Medicare or
Medicaid is inadmissible as collateral sources — Damages — Trial court erred
in limiting noneconomic damages on basis of statutory cap — Statutory caps on
noneconomic damages are unconstitutional

JEANNE UY GO, M.D., Appellant, v. FEDELINE NORMIL,
individually, and as Parent and Natural Guardian of DENS PIERRE, a minor,
BETHESDA MEMORIAL HOSPITAL, INC., LATHA SRINATH, M.D., MARIA D. ALVA, M.D., and
KIDZ MEDICAL SERVICES, INC., Appellees. 4th District. Case No. 4D13-88. January
6, 2016. Appeal and cross-appeal from the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; David E. French, Judge; L.T. Case No.
502008CA026517XXXXMB. Counsel: Adam D. Farber, Boynton Beach, and Marjorie
Gadarian Graham of Marjorie Gadarian Graham, P.A., Palm Beach Gardens
(withdrawn as counsel after filing brief), for appellant/cross-appellee.
Armando T. Lauritano of Morgan & Morgan, P.A., Tampa, and Philip M.
Burlington, Andrew A. Harris, Nichole J. Segal, and Adam J. Richardson of
Burlington & Rockenbach, P.A., West Palm Beach, for
appellees/cross-appellants.

(FORST, J.) Appellant Dr. Jeanne Go and a colleague were
sued for medical malpractice stemming from their treatment of Dens Pierre (“the
Child”), which resulted in a brain injury to the Child. A jury found Appellant
seventy-five percent liable for the damages sustained by the Child and awarded
the Child and his mother (“the Mother”) roughly $28.5 million in damages.
However, this award was reduced by the trial court pursuant to section 766.118,
Florida Statutes (2012). Appellant now appeals, while the Child and the Mother
cross-appeal. We reject Appellant’s arguments on appeal. Moreover, in light of
recent decisions concerning section 766.118, we agree with the position raised
in the cross-appeal; accordingly, we reverse with respect to the trial court’s
reduction of the damages award.

Background

The Child was admitted to Bethesda Hospital in Boynton Beach
in August 2006. The Child presented with a high fever, vomiting, and a stiff
neck. Appellant and a colleague were both responsible for the Child’s care.
After two weeks of treatment at Bethesda Hospital, the Child’s condition
worsened and he was transferred to Miami Children’s Hospital. Upon arrival at
Miami Children’s, it was determined that the Child had suffered a stroke. The
physicians at Miami Children’s ran additional tests, which indicated the
presence of both herpes and Epstein-Barr viruses. An expert witness testified
that “more likely than not this child . . . would not have suffered a stroke if
the initial herpetic infection was treated earlier.”

Although the Child’s physical development was largely
unaffected by the stroke, the Child’s neurological and behavioral development
was severely impacted. The plaintiff introduced testimony that the Child is
unable to communicate or follow directions, engages in self-injurious behaviors,
suffers from morbid obesity and an insatiable appetite, and has little to no
awareness for his own safety such that he requires constant supervision. A
witness also opined that the Child has “a total disability that is permanent”
and that he would be unable to ever live independently.

The jury returned a verdict in favor of the Child and the
Mother, finding Appellant to be seventy-five percent liable for the Child’s
injuries. The jury awarded the Child $16,450,104.74 in economic damages,
including $2,173,500 for medical care until the Child’s eighteenth birthday and
$13,395,300 for care thereafter. The jury also awarded $6 million each to both
the Child and the Mother for past and future noneconomic damages. In light of
the statutory cap on medical malpractice noneconomic damages, the trial court
limited the noneconomic damage award to $500,000 per claimant and entered a
final judgment reflecting this change.

Analysis

I.
Issues Raised by Appellant

Appellant raises three issues on appeal, arguing that: (1)
the trial court erred by excluding evidence pertaining to free or low-cost
medical care available to the Child; (2) the trial court erred by denying
Appellant’s request for a post-verdict juror interview and her request for new
trial; and (3) the trial court erred by denying Appellant’s motion for a
continuance. We will address the first issue and affirm the trial court’s
decision on the other two issues without further comment.

At trial, Appellant sought to introduce testimony that the
Child’s future medical expenses would be lowered significantly based on free or
low-cost medical care provided by the State of New York, where the Child now
resides. The plaintiffs initially argued against admitting any reference to
Medicaid or Medicare payments for past or future medical costs. The trial court
ruled that, under Florida Physician’s Insurance Reciprocal v. Stanley,
452 So. 2d 514 (Fla. 1984), evidence of governmental or charitable benefits was
admissible on the issue of future damages as an exception to the collateral
source rule, provided they were available to all citizens regardless of wealth.

Appellant’s expert testified that the Child had access to
free attendant care and therapy through his public school until he turned
twenty-two. The expert testified that the Child would have access to
customizable residential programs with nursing care and supervision at no cost
to the Mother. The expert stated that there are no private pay facilities
available to disabled persons, but later changed course and said “some of them
are private. But they accept governmental reimbursement.” The witness further
explained that the resources available to the Child or the Mother would not
affect his admission into the programs about which she was testifying. Upon
further questioning, the witness stated that the facility she was referring to
charged Medicaid for its patients’ care and in order to get into the facility,
the Child would need to qualify for Medicaid because “none of these places take
private pay.” The witness stated that the costs would be paid by Medicaid but
Medicaid would need to be reimbursed. The trial court struck the witness’s
earlier testimony and precluded further discussion of these programs because
“that’s not a charity . . . it is a private-payer situation that is paid for by
Medicaid, which means – which is specifically inadmissible according to the Stanley
case and so forth.”

“The collateral source rule functions as both a rule of
damages and a rule of evidence,” allowing a plaintiff to recover full compensatory
damages despite any compensation obtained from a source other than the
tortfeasor and prohibiting the introduction of evidence of such collateral
payments. Gormley v. GTE Prods. Corp., 587 So. 2d 455, 457 (Fla. 1991).
Florida courts have reasoned that “introduction of collateral source evidence
misleads the jury on the issue of liability,” as it may lead the jury to assume
that a party already has been adequately compensated for his or her injury or
that a plaintiff is seeking an undeserved windfall. Id. at 458.

The Florida Supreme Court carved out an exception to this
general rule in Stanley. In that case, a child and his parents brought a
medical malpractice action to recover for the child’s mental handicaps. Stanley,
452 So. 2d at 515. At trial, the plaintiffs presented evidence as to the
expected cost of therapy the child would need. Id. The trial court
allowed the defendants to cross-examine the plaintiffs’ witnesses about the
availability of free or low-cost charitable and/or governmental programs
available to the child. Id. The First DCA reversed, holding that
evidence of the available charitable or governmental care violated the
collateral source rule. Id.

The Florida Supreme Court, in turn, reversed the First DCA,
holding:

We
believe that the common-law collateral source rule should be limited to those
benefits earned in some way by the plaintiff. Governmental or charitable
benefits available to all citizens, regardless of wealth or status, should be
admissible for the jury to consider in determining the reasonable cost of
necessary future care.

Id. The Court echoed the logic of the
Illinois Supreme Court that “[T]he policy behind the collateral-source rule
simply is not applicable if the plaintiff has incurred no expense, obligation,
or liability in obtaining the services for which he seeks compensation.” Id.
(quoting Peterson v. Lou Bachrodt Chevrolet Co., 392 N.E.2d 1, 5
(1979)).

Recently, the Florida Supreme Court has receded from its
opinion in Stanley. In Joerg v. State Farm Mutual Automobile
Insurance Co., 40 Fla. L. Weekly S553 (Fla. Oct. 15, 2015), a disabled
adult was struck by a car while riding his bicycle. Id. at S555. The
man’s parents brought an action against State Farm, the insurer of the driver. Id.
The trial court allowed State Farm to introduce evidence of “future medical
bills for specific treatment or services that are available . . . to all
citizens regardless of their wealth or status.” Id. However, it
precluded State Farm from introducing evidence of the victim’s future Medicare
or Medicaid benefits. Id. The Second DCA, however, “concluded that,
under Stanley . . . Medicare benefits were free and unearned and
therefore should not have been excluded by the collateral source rule.” Id.

The Supreme Court reversed the Second DCA and held that
evidence of future benefits from Medicare or Medicaid is inadmissible as
collateral sources. Id. The Court reasoned that the right of
reimbursement meant that these government programs were not free and/or unearned.
Id. at S555-56. The Court further noted the future availability of such
programs is speculative and that allowing tortfeasors to introduce evidence of
payments from these governmental programs would allow them a windfall. Id.
at S556. While we believe the trial court properly barred evidence of benefits
under the test espoused in Stanley, the Florida Supreme Court’s opinion
in Joerg provides further support for the conclusion that the trial
court properly excluded this evidence.

II. Issue Raised by Mother and Child

The Mother and the Child also appeal the final judgment,
arguing the caps on noneconomic damages found in section 776.118(2) are
unconstitutional. We recently decided this issue in North Broward Hospital
District v. Kalitan, 174 So. 3d 403 (Fla. 4th DCA 2015). In that case, we
held that, based on the Florida Supreme Court’s decision in Estate of McCall
v. United States, 134 So. 3d 894 (Fla. 2014), “the section 766.118 caps are
unconstitutional not only in wrongful death actions, but also in personal
injury suits as they violate equal protection.” Kalitan, 174 So. 3d at
411. Under the principle of stare decisis and the mandate of McCall,
we again hold that these caps are unconstitutional.

Conclusion

We reject Appellant’s arguments on appeal. Additionally, we
reverse with respect to the cross-appeal. Per McCall and Kalitan,
the caps on noneconomic damages, found in section 766.118(2), are
unconstitutional and should not have been applied. On remand, the trial court
must amend the final judgment to reflect the full amount of noneconomic damages
awarded by the jury.

Reversed and remanded. (WARNER and TAYLOR, JJ.,
concur.)

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