Caps

Published: September 2015
By Ted Babbitt

My thanks to Crane Johnston of Schlesinger Law Offices, P.A., Ft. Lauderdale, for an advance copy of the recent decision of the Fourth District Court of Appeals in North Broward Hospital District, et al. v. Kalitan, 40 Fla. L. Weekly D1531 (Fla. 4th DCA, July 1, 2015) which was an appeal of a trial court’s order reducing a jury verdict in accordance with the caps imposed by Fla. Stat. 766.118.  In a wrongful death case, the Florida Supreme Court held that statute unconstitutional in Estate of McCall v. United States of America, 134 So. 3d 894 (Fla. 2014).

In the North Broward Hospital District case, plaintiff entered the hospital for outpatient surgery to treat carpal tunnel syndrome in her wrist.  During anesthesia, it was alleged that her esophagus was perforated during the intubation and a medical nightmare ensued.  Despite awakening with excruciating pain, she was sent home only to return a day later on an emergency basis which resulted in her undergoing life-saving surgery to repair her esophagus, a drug induced coma for several weeks, multiple additional surgeries and permanent physical and mental disability.

The issue in North Broward, supra, was whether McCall, which found Fla. Stat. 768.118 unconstitutional in a wrongful death case, mandated its being held unconstitutional in a single personal injury action.

In McCall, supra, the Court applied the rational basis test to determine whether the statute was unconstitutional under the equal protection clause of the Florida Constitution.  The rational basis test requires a Court to determine whether a statute bears a rational basis to a reasonable State interest.  In McCall, supra, the Court answered that question in the negative both because the supposed medical malpractice crises that was the basis for imposing caps on damages no longer existed, if it ever existed in the first place, and also because a cap on wrongful death noneconomic damages imposes an unfair and illogical burden when medical negligence impacts multiple claimants.  The McCall case relied upon St. Mary’s Hospital v. Phillipe, 769 So. 2d 961 (Fla. 2000) which held unconstitutional a cap of $250,000.00 applied in the aggregate regardless of the number of survivors that existed in a wrongful death action.  Phillipe held that an application of damages in the aggregate violated the equal protection provision of the Florida Constitution and applied the cap individually to each survivor.

In North Broward Hospital District, supra, the issue of constitutionality was more broadly stated than in McCall since it did not involve multiple plaintiffs and the question was rather whether placing a cap on a plaintiff’s individual damages also violated the constitution’s equal protection guarantee because it treated the plaintiff differently than other similarly situated plaintiffs.  The Court found Fla. Stat. 768.118 unconstitutional in all cases.  At 1533, the Court held:

Although McCall’s plurality and concurring opinions
specifically addressed only the caps on noneconomic
damages awarded to survivors in wrongful death
actions, section 766.118 applies to both personal
injury and wrongful death actions.  See § 766.118(2)(a),
Fla. Stat. (2011).  Because addressing the medical
malpractice crisis was the Legislature’s stated
objective when passing section 766.118, if the
objective no longer exists, then there is no longer a
“legitimate state objective” to which the caps could
“rational[ly] and reasonabl[y] relat[e].”  McCall, 134 So.
3d at 901.  Per the McCall plurality and concurring
opinions, we are compelled to conclude that section
766.118 presently lacks a rational and reasonable
relation to any state objective, and thus fails both
the concurring opinion’s “smell test” as well as the
rational basis test.  Id. at 920 (Pariente, J., concurring).

 

Therefore, adhering to McCall, the section 766.118
caps are unconstitutional not only in wrongful death
actions, but also in personal injury suits as they violate
equal protection.  It makes no difference that the caps
apply horizontally to multiple claimants in a wrongful
death case (as in McCall) or vertically to a single
claimant in a personal injury case who suffers
noneconomic damages in excess of the caps (as in
the case here).  Whereas the caps on noneconomic
damages in section 766.118 fully compensate those
individuals with noneconomic damages in an amount
that falls below the caps, injured parties with
noneconomic damages in excess of the caps are not
fully compensated.

In North Broward Hospital District, Defendants also raised the question as to whether the McCall opinion should be applied retroactively or only prospectively.  The Court in North Broward Hospital District held that only the Florida Supreme Court had the power to determine that its opinions apply retrospectively and absent such holding found that the Courts of Florida are bound by the opinion in McCall at the time a decision is rendered.  At 1534, the Court held:

Here, the Supreme Court in McCall did not limit
its holding to prospective application.  Moreover,
the Fifth District Court of Appeal recently withdrew
its opinion in a wrongful death case for the
purpose of applying McCall retroactively.  Shoemaker
v. Sliger, 141 So. 3d 1225 (Fla. 5th DCA 2014).
Finally, Florida’s “pipeline rule” requires that
“disposition of a case on appeal should be made in
accord with the law in effect at the time of the
appellate court’s decision rather than the law in
effect at the time the judgment appealed was
rendered.”  Hendeles v. Sanford Auto Auction,Inc.,
364 So. 2d 467, 468 (Fla. 1978); see also
Stanley, 610 So. 2d at 541-42.  Accordingly, we apply the
dictates of McCall to the instant case.

This case definitively answers the question of whether the malpractice caps contained in Fla. Stat. 768.118 are constitutional and holds that they are not, applying that rationale to all cases currently extant in the state of Florida.