41
Fla. L. Weekly D2393aTop of Form

Torts
— Medical malpractice — Damages — Statute imposing caps on noneconomic
damages in personal injury medical malpractice cases is unconstitutional — It
was error to set off pretrial settlement with a defendant physician against
economic damages awarded against defendant hospital

PORT
CHARLOTTE HMA, LLC, d/b/a PEACE RIVER REGIONAL MEDICAL CENTER, a Florida
corporation for profit, Appellant/Cross-Appellee, v. IALA SUAREZ, individually,
and as Parent and Natural Guardian of K.D.P., a minor,
Appellee/Cross-Appellant. 2nd District. Case No. 2D15-3434. Opinion filed
October 26, 2016. Appeal from the Circuit Court for Charlotte County; Lisa S.
Porter, Judge. Counsel: James E. Looper, Duane L. Cochenour, and Denise L.
Dawson of Hall Booth Smith, P.C., Atlanta, Georgia, for
Appellant/Cross-Appellee. Kimberly L. Boldt, Mario R. Giommoni, and Jeffrey D.
Mueller of Boldt Law Firm, P.A., Boca Raton; Stuart N. Ratzan and Stuart J.
Weissman of Ratzan Law Group, P.A., Miami, for Appellee/Cross-Appellant.
Lincoln J. Connolly of Lincoln J. Connolly Trials & Appeals, P.A., Miami,
for Amicus Curiae Florida Justice Association.

(MORRIS,
Judge.) Port Charlotte HMA, LLC, doing business as Peace River Regional Medical
Center (“Peace River”), appeals a final judgment entered in favor of Iala
Suarez, individually and as the parent of K.D.P., in a medical malpractice
action. Peace River raises nine issues on appeal, and Suarez raises two issues
on cross-appeal. We find no merit in the majority of the issues raised, but we
reverse the final judgment based on the trial court’s posttrial granting of a
setoff on economic damages. Further, we write to express our agreement with the
Fourth District’s conclusion that the statutory cap on noneconomic damages is
unconstitutional.

I.
FACTS

This
case arises from the alleged negligence of several health care providers in
connection with the obstetrical care and treatment of Iala Suarez during her
pregnancy with her daughter, K.D.P. Suarez presented to Peace River three times
between August 17, 2010, and August 29, 2010, with worsening symptoms of early
onset preeclampsia. Preeclampsia is a common condition of pregnancy, but it is
a progressive disease that is potentially life-threatening. Despite Suarez’s
worsening symptoms and the increased risk of premature delivery, Suarez’s
doctors did not promptly begin administering antenatal corticosteroids to enhance
the development of K.D.P.’s brain and lungs. Suarez’s health care providers
also failed to transfer her to a Level III facility equipped to handle a
premature birth of less than 33 weeks gestational age. On August 29, 2010,
K.D.P. was born at 26 weeks gestational age. K.D.P. has severe neurological
impairments that render her physically unable to do basic things; she will be
fully dependent on others for the rest of her life and will need 24-hour care.
Suarez alleged that K.D.P.’s neurological impairments were caused by the
negligence of her physicians, Peace River, and Peace River’s employees. Peace
River contended that neither it nor its employees were negligent.

Prior
to trial, Suarez settled with one of the physicians, Dr. Guzman. After a
lengthy trial, the jury found that the negligence of both Peace River and
another physician, Dr. Coffey, was the legal cause of K.D.P.’s injuries. The
jury attributed 30 percent of the liability to Peace River and 70 percent of
the liability to Dr. Coffey.1 The jury found that K.D.P. suffered
total damages in the amount of $13,550,000, including $1,250,000, in
noneconomic damages, and that Suarez suffered total damages in the amount of
$9,637,134, including $4,000,000 in noneconomic damages.

After
trial, Peace River filed a motion to reduce jury verdict pursuant to section
766.118(3), Florida Statutes (2010), claiming that Peace River’s liability for
noneconomic damages should be limited to $1.5 million. Suarez responded that
the statutory cap on noneconomic damages is unconstitutional. The trial court
denied Peace River’s motion and declined to apply the statutory cap in
766.118(3).

Peace
River also filed a posttrial motion for setoff based on Suarez’s pretrial
settlement with Dr. Guzman. The trial court granted Peace River’s motion and
set off the economic damages against Peace River in the amount of $193,395.30.
After applying the setoff to Peace River’s 30 percent liability for the total
damages awarded by the jury to both Suarez and K.D.P., the trial court entered
final judgment in favor of Suarez and K.D.P. and against Peace River in the
amount of $6,762,744.90.

II.
ANALYSIS

A.
Statutory Cap on Noneconomic Damages

In
denying Peace River’s request to apply the statutory cap for noneconomic
damages provided for in section 766.118(3), the trial court relied on North
Broward Hospital v. Kalitan, 174 So. 3d 403 (Fla. 4th DCA 2015), review
granted, No. SC15-1858. On appeal, Peace River contends that the statute is
constitutional and that the Fourth District in Kalitan improperly
extended the supreme court’s holding in Estate of McCall v. United States,
134 So. 3d 894 (Fla. 2014), to personal injury medical malpractice cases.
Suarez responds that the trial court properly applied Kalitan, which in
turn properly extended McCall to personal injury cases. The Florida
Justice Association filed an amicus curiae brief in support of Suarez and K.D.P.,
arguing that section 766.118 is unconstitutional under Florida’s equal
protection clause.

In McCall,
the majority of the Florida Supreme Court held that the cap on wrongful death
noneconomic damages in section 766.118 violates the equal protection clause of
the Florida Constitution. 134 So. 3d at 897, 901 (plurality opinion); id.
at 916 (Pariente, J., concurring). The court concluded that

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

Id. at
901 (plurality opinion); see id. at 919-20 (Pariente, J.,
concurring). The court reasoned that the statutory cap “irrationally impacts
circumstances which have multiple claimants/survivors differently and far less
favorably than circumstances in which there is a single claimant/survivor”
because “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.” Id. at 901-02 (plurality opinion); see
id. at 921 (Pariente, J., concurring). The court limited its analysis to
wrongful death cases, noting that “[t]he legal analyses for personal injury
damages and wrongful death damages are not the same.” Id. at 900 n.2
(plurality opinion).

However,
in Kalitan, 174 So. 3d at 404, the Fourth District considered whether,
in light of McCall, “the caps on noneconomic damage awards in
personal injury medical malpractice cases are similarly unconstitutional.”
(Emphasis added.) Recognizing that “section 766.118 applies to both personal
injury and wrongful death actions,” the court went on to conclude that “the
section 766.118 caps are unconstitutional not only in wrongful death actions[ ]
but also in personal injury suits as they violate equal protection.” 174 So. 3d
at 411. The court reasoned that there is no real distinction between the
situation in that case — a single claimant in a personal injury case who
suffers noneconomic damages in excess of the caps — and the situation in McCall
— multiple claimants in a wrongful death case. Id. The court concluded
that under section 776.118, “injured parties with noneconomic damages in excess
of the caps are not fully compensated.” Kalitan, 174 So. 3d at 411.

Turning
to the instant case, the trial court properly relied on Kalitan in
denying Peace River’s motion to apply the statutory cap on noneconomic damages,
as the opinion in Kalitan was the only district court opinion on the
issue and was thus binding precedent. See Pardo v. State, 596 So.
2d 665, 666 (Fla. 1992) (“[I]n the absence of interdistrict conflict, district
court decisions bind all Florida trial courts.” (citing Weiman v. McHaffie,
470 So. 2d 682, 684 (Fla. 1985)). Further, we conclude that the Kalitan
court properly applied the McCall holding to personal injury medical
malpractice actions and we agree with the Fourth District on this issue.

B.
Setoff Against Economic Damages

In
granting Peace River’s motion for setoff, the trial court relied on section
768.81(3), Florida Statutes (2010), and D’Angelo v. Fitzmaurice, 863 So.
2d 311 (Fla. 2003). On cross-appeal, Suarez argues that because the legislature
eliminated joint and several liability for economic damages after the D’Angelo
decision, Peace River is responsible for the damages that correspond to its
percentage of fault and Peace River is not entitled to a setoff based on a
settlement Suarez reached with another defendant.

In D’Angelo,
863 So. 2d at 314, the supreme court recognized that prior to the enactment of
section 768.81, the existing setoff statutes “presuppose[d] the existence of
multiple defendants jointly and severally liable for the same damages.” But in
1997, Florida enacted section 768.81(3), which read as follows:

APPORTIONMENT OF DAMAGES. —
In cases to which this section applies, the court shall enter judgment against
each party liable on the basis of such party’s percentage of fault and not on
the basis of the doctrine of joint and several liability; provided that with
respect to any party whose percentage of fault equals or exceeds that of a
particular claimant, the court shall enter judgment with respect to economic
damages against that party on the basis of the doctrine of joint and several
liability.

Thus,
by enacting section 768.81, Florida “eliminate[d] joint and several liability
for noneconomic damages and limit[ed] joint and several liability for economic
damages.” 863 So. 2d at 314. The court held that based on the language of the
statute,

it is appropriate to set off
against the economic damages portion of an award against one tortfeasor in a
medical malpractice action the economic damages portion of any settlement
recovered from a settling tortfeasor for the same incident causing the injury
where the settling tortfeasor was not included on the verdict form.

Id. at
319.

However,
in 2006, the Florida Legislature amended section 768.81(3) and specifically
deleted the provision applying joint and several liability to economic damages.
Ch. 2006-6 at 191, § 1, Laws of Fla. The current version of this subsection now
reads: “[T]he court shall enter judgment against each party on the basis of
such party’s percentage of fault and not on the basis of the doctrine of joint
and several liability.” § 768.81(3); see T & S Enters. Handicap
Accessibility, Inc. v. Wink Indus. Maintenance & Repair, Inc., 11 So.
3d 411, 412 (Fla. 2d DCA 2009) (recognizing that joint and several liability
was eliminated in section 768.81(3)). Therefore, the holding in D’Angelo,
which was based on specific language authorizing a setoff against economic
damages on the basis of joint and several liability, does not apply in this
case, and the trial court erred in applying a setoff to the economic damages
awarded against Peace River.

III.
CONCLUSION

We
reverse the final judgment and the order granting setoff and remand for the
trial court to reenter judgment in favor of Suarez without applying the setoff
amount of $193,395.30. In all other respects, the rulings of the trial court
are affirmed.

Affirmed
in part; reversed in part; remanded. (KELLY and KHOUZAM, JJ., Concur.)

__________________

1Dr.
Coffey was the on-call doctor during Suarez’s first two visits to Peace River,
and he was also Suarez’s treating obstetrician. This appeal does not involve
Dr. Coffey, who dismissed his separate appeal of his adverse judgment in 2015.