Estate of Michelle Evette McCall v. United States

Supreme Court of Florida
____________
No. SC11-1148
____________
ESTATE OF MICHELLE EVETTE MCCALL, et al.,
Petitioners,
vs.
UNITED STATES OF AMERICA,
Respondent.
[March 13, 2014]
LEWIS, J.
This case is before the Court to answer four questions of Florida 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?
Id. at 952-53. Because this case involves a wrongful death, we 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?
As explained below, we answer the first rephrased certified question in the
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
In its opinion, the Eleventh Circuit detailed the facts regarding the legal
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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
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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.
Id. at 946-47.
The Petitioners filed an action against the United States under the Federal
Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-80. Id. at 947. In addition
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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.However, the district court limited the Petitioners’ recovery of wrongful
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.
On appeal to the Eleventh Circuit, the Petitioners challenged the district
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
1. Under the FTCA, damages are “determined by 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).
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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.The Eleventh Circuit affirmed the application of the statutory cap on
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.-6-
STATUTORY PROVISION
At issue is Florida’s statutory cap on wrongful death 2 noneconomic damages
in medical negligence actions as 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.
2. The legal analyses for personal injury damages and wrongful death
damages are not the same. The present case is exclusively related to wrongful
death, and our analysis is limited accordingly.
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§ 766.118(2), Fla. Stat. 3 Noneconomic 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
We have rephrased the first question certified to this Court by the Eleventh
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:
All natural persons, female and male alike, are equal before the law.
Art. I, § 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
3. Section 766.118 separates the cap on 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.
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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).
Unless a suspect class or fundamental right protected by the Florida
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.
Having carefully considered the arguments of both parties and the amici, we
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
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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
This Court previously reasoned in St. Mary’s Hospital, Inc. v. 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.
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Id. at 972 (emphasis supplied).
The equal protection violation identified by Phillipe is evident in 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.
Other state supreme courts have struck down caps on noneconomic damages
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based 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].
4. The Supreme Court of Illinois concluded 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.
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Therefore, the statute discriminates between slightly and severely
injured plaintiffs, and also between tortfeasors who cause severe and
moderate or minor injuries.
Best v. Taylor Mach. Works, 689 N.E.2d 1057, 1075 (Ill. 1997) (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).
Section 766.118, Florida Statutes, has the effect of saving a modest amount
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
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stated goal of alleviating the financial crisis in the medical liability insurance
industry.”).
Our holding today is not inconsistent with the decisions in Samples v.
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
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compensation under a system where eligible claimants are assured of
a recovery without regard to fault.
114 So. 3d at 919. Here, as in Phillipe, section 766.118 concerns the 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.
Mizrahi involved a statute that precluded adult children of wrongful 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
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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.
Unlike Mizrahi, the statute under review here does not address and 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.
Finally, in Echarte this Court considered whether a $250,000 cap on
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
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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.
Moreover, the statute imposing the cap in Echarte was later addressed 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
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“the loss of a survivor is not diminished by the mere fact that there are multiple
survivors”).
Despite our discussion of Phillipe, we emphasize that, contrary to the
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
In addition to arbitrary and invidious discrimination between medical
malpractice claimants, the cap on noneconomic damages also violates the Equal
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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.
Despite this precedent, the concurring in result opinion loudly proclaims 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
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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).
The Florida Legislature attempted to justify the cap on noneconomic
damages 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.
In enacting the statutory cap on noneconomic damages, the Legislature
relied 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
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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.
To evaluate the constitutionality of the cap on noneconomic damages
imposed 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.
N. Fla. Women’s Health & Counseling Serv., Inc. v. State, 866 So. 2d 612, 627
(Fla. 2003) (quoting Moore v. Thompson, 126 So. 2d 543, 549 (Fla. 1960)) (some
emphasis supplied).
Our consideration of the factors and circumstances involved demonstrates
that 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
- 21 -
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.
Thus, during this purported crisis, the numbers of physicians in Florida were
actually increasing, not decreasing.
Additionally, an analysis of claim activity certainly does not provide a
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-
- 22 -
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.
Even the Task Force whose report was relied upon by the Florida
Legislature employed extremely equivocal language and speculation when
5. Further, a national study reflects that 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+ht
ml.
6. According to the authors, with one 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.
- 23 -
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.
Task Force Report, at 64 (footnotes omitted). The Task Force itself
- 24 -
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.
Task Force Report, at 31 (emphasis supplied) (footnotes omitted). See 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.”).
Finally, testimony before the Senate Judiciary Committee and debate within
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.
During the subsequent floor debate, the following dialogue occurred
- 25 -
between a 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.
Senate Floor Debate Tr. 22-23 (Aug. 13, 2003) (emphasis supplied). Further
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.
- 26 -
Medical Malpractice: Implications of Rising Premiums on Access to Health Care,
No. GAO-03-836, (Aug. 2003), at 17-18, available at
http://www.gao.gov/new.items/d03836.pdf.
Moreover, for those doctors who are leaving or have left Florida, there was
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.
Testimony of Sandra Mortham, Senate Judiciary Committee Meeting, July 14,
2003, at 117, 129-30.
Based upon these statements and reports, although medical malpractice
premiums in Florida were undoubtably high in 2003, we conclude the Legislature’s
determination that “the increase in medical malpractice liability insurance rates is
- 27 -
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
Even if these conclusions by the Legislature are assumed to be true, and
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).
Reports have failed to establish a direct correlation between damages caps
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
- 28 -
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 states 7 without caps) experienced static or declining
medical malpractice premiums. Id. at 8.
Additionally, Robert White, the President of First Professionals Insurance
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
7. The study states that “the District of 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.
- 29 -
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.
Members of the Florida Senate and the House of Representatives also
expressed 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
- 30 -
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.
Senate Floor Debate Tr. 45-47, 49 (Aug. 13, 2003). Further, during floor 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.”).
The concerns of that representative were very perceptive and were not
unfounded. While the cap on noneconomic damages limits the amount of money
that insurance companies must pay injured victims of medical malpractice, section
- 31 -
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).
Although at first glance this statutory subsection may appear to compel
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
- 32 -
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.
A number of state courts have expressed concern that without a statutory
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
- 33 -
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.
Id. at 869-70 (footnote omitted).
Moreover, the Texas Supreme Court has strongly questioned whether caps
on 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.
- 34 -
We conclude that the record and available data fail to establish a legitimate
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
Lastly, even if a “crisis” existed when section 766.118 was enacted, a crisis
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
- 35 -
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.
Having evaluated current data, we conclude that no rational basis exists to
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.
Additionally, the Office of the State Courts Administrator (OSCA) reports
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
- 36 -
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).
Finally, and perhaps most telling, is that the leading companies selling
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
8. The OSCA combines these two types of legal actions for statistical
purposes.
- 37 -
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.
2013 FLOIR Annual Report at 8-9 (emphasis supplied). The most recent records
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
9. The four insurance companies were The 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).
- 38 -
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.
Thus, even if there had been a medical malpractice crisis in Florida at the
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
10. Despite such increases in net income, in 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.
- 39 -
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
We conclude that the remaining certified questions need not be addressed.
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).
At common law, Florida did not recognize a cause of action for wrongful
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
- 40 -
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).
Section 766.118 caps noneconomic damages in both wrongful death 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.”).
Our decision not to answer the fourth certified question addressing the
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
- 41 -
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
Based on the foregoing, we answer the first rephrased certified question in
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.
It is so ordered.
LABARGA, J., concurs.
PARIENTE, J., concurs in result with an opinion, in which QUINCE and PERRY,
JJ., concur.
POLSTON, C.J., dissents with an opinion, in which CANADY, J., concurs.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
PARIENTE, J., concurring in result.
I agree with the plurality opinion authored by Justice Lewis that the statutory
cap on wrongful death noneconomic damages provided by the medical malpractice
- 42 -
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.
However, I do not fully join in the plurality opinion because I respectfully
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).
Although this Court is not bound to blindly defer to all legislative 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
- 43 -
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.
My analysis proceeds in the following way. I first set forth the background
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
As described in the findings of fact of the federal district court where this
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
- 44 -
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.
Section 766.118 provides in pertinent part as follows:
(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.
§ 766.118, Fla. Stat. (2005).
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As to noneconomic damages, Michelle left as survivors her parents and her
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 1/2 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.
Id. at 1293-94 (footnote omitted).
As to Michelle’s parents, Edward M. and Margarita F. McCall, the federal
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
- 46 -
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.
Id. at 1294.
As set forth by the plurality, because section 766.118(2) caps total
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.
This is where the equal protection argument addressed by the plurality
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
- 47 -
violates Florida’s Equal Protection Clause as applied to wrongful death actions
under the constitutional rational basis test.
II. Agreement with the Plurality Opinion
I agree with the plurality opinion as to the following issues. First, I agree
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)).
- 48 -
Second, I also agree that this Court’s role is not to simply “rubber stamp” 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)).
Third, and most importantly, I agree with the plurality’s conclusion that the
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.Indeed, as the plurality correctly notes, this Court “clearly announced in
Phillipe that aggregate caps or limitations on noneconomic damages violate equal
protection guarantees under the Florida Constitution when applied without regard
- 49 -
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.The rationale of Phillipe is particularly applicable in this case 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).
Of course, the statutory cap on noneconomic damages provides no
commensurate 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
- 50 -
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.
Finally, I strongly agree with the plurality that “even if a ‘crisis’ existed
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,
- 51 -
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.
Id. at 1043-44 (Pariente, J., dissenting) (emphasis added) (footnote omitted).
The same reasons that led me to conclude that the continued deprivation of
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
- 52 -
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
Although I agree with many aspects of the plurality opinion and with the
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.
I emphasize that I have no reason to question the plurality’s excellent
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.”
- 53 -
The plurality relies on a case, North Florida Women’s Health and
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.).
North Florida Women’s Health involved the fundamental right to 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.
The plurality asserts that Warren v. State Farm Mutual Automobile
Insurance Co., 899 So. 2d 1090, 1095 (Fla. 2005), stands for the proposition that
- 54 -
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.
Accordingly, in my view, despite the plurality’s thoughtful and scholarly
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
Based on the above, I concur with the plurality’s decision to hold the cap on
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.
- 55 -
POLSTON, C.J., dissenting.
I respectfully dissent because the plurality 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
Justice Lewis’ plurality opinion accurately quotes the Eleventh Circuit’s
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
- 56 -
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.
On appeal, the Eleventh Circuit considered multiple constitutional
challenges 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:
Plantiffs ask us to second guess the legislature’s judgment in enacting
a “per incident” rather than “per claimant” statutory cap. However,
- 57 -
“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.
Id. at 951. The Eleventh Circuit also rejected the plaintiffs’ 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.
Additionally, the Eleventh Circuit held that the cap on noneconomic
damages 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.- 58 -
Finally, rather than deciding the plaintiffs’ remaining challenges to the cap
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?
Id. at 952-53.
II. Florida’s Caps on Noneconomic Damages
Section 766.118, Florida Statutes (2005), places limitations on noneconomic
damages 11 in medical malpractice cases, and the limitations vary depending upon
the circumstances. For cases involving the negligence of practitioners providing
11. Section 766.202(8), Florida Statutes (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.”
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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.
§ 766.118(2)(a), Fla. Stat. (2005). If the negligence resulted in death or a
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.
§ 766.118(2)(b), Fla. Stat. (2005). The cap also rises to $1 million dollars 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.”
For cases involving nonpractitioners providing nonemergency care, the
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
- 60 -
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.”
These limitations on noneconomic damages are part of an overall legislative
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.
The legislative effort began with the convening of the House Select
Committee 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
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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.
The Select Committee also reviewed the record of the Governor’s Select
Task 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.
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Specifically, when enacting chapter 2003-416, Laws of Florida, the
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.
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(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
McCall argues that Florida’s cap of $1 million on noneconomic damages
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
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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.
Article I, section 2 of the Florida Constitution provides that “[a]ll natural
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).
As this Court explained in Duncan, 754 So. 2d at 712 (citations 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.
In this case, McCall argues that section 766.118(2)(b)’s cap on noneconomic
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
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involve a protected class or a fundamental right, McCall’s equal protection claim
must be analyzed using the rational basis test.
“Under a ‘rational basis’ standard of review a court should inquire only
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.
Fla. High Sch. Activities Ass’n v. Thomas, 434 So. 2d 306, 308 (Fla. 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).
This Court has employed the rational basis test in its prior decisions
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
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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.
In 1993, in a case primarily denying an access to courts challenge, this 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
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refusing a defendant’s offer to arbitrate. Id. (describing section 766.209(4), Fla.
Stat. (Supp. 1988)).
Thereafter, in April 2000, this Court held that the statute precluding adult
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.But, in June 2000, this Court in dicta expressed equal protection 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).
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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.However, this Court very recently rejected a challenge that was nearly
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
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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.Similar to this Court’s precedent, the Third, Fourth, Fifth, Sixth, 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
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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.”).
Additionally, multiple state courts have rejected equal protection challenges
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).
Applying our rational basis precedent, it is clear that the statutory cap in this
case passes constitutional muster. When enacting the noneconomic damages cap
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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.
This Court has previously recognized the existence of a medical malpractice
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
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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).
More specifically, the Florida Legislature could have rationally believed 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
McCall contends that the cap at issue in this case violates Florida’s equal
protection guarantee because it applies on a per incident, rather than a per claimant,
12. In fact, the Governor’s Task Force, upon 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.
Gov.’s Task Force Report, at xvii.
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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.
As a federal district court ably stated when rejecting a similar per incident
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.
M.D. v. United States, 745 F. Supp. 2d 1274, 1280-81 (M.D. Fla. 2010).
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McCall also argues that the noneconomic damages cap violates equal
protection 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.
Rather than applying the analysis prescribed by our precedent, the plurality
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
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an argument that was nearly identical to the dicta expressed in Phillipe. See
plurality op. at 9-13 (Lewis, J.).
Even more disturbingly, and as acknowledged by Justice Pariente to be
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.
13. See concurring in result op. at 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.”).
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While the plurality clearly would have come to a different policy choice than
the Legislature based upon the hardly unambiguous data 14 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
14. Justice Lewis notes that medical 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.
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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
15. Of course, there is competent 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.
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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.
Here, applying the proper rational basis test, it is clear that the cap on
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
Relying on this Court’s decision in Smith v. Department of Insurance, 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.
Section 21 of article I of the Florida Constitution provides that “[t]he 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
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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.
In other words, to survive an access to courts challenge, a statute 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.In Echarte, 618 So. 2d 189, this Court applied the second prong from 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.
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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.
In Echarte, this Court explained that the judiciary exercises 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.
This Court in Echarte began its discussion of the legislative showing 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,
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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.
Additionally, despite the lack of an express legislative finding on the 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
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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.
Similar to Echarte, the Legislature when enacting the statute at issue 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
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medicine without professional liability insurance, to leave Florida, to not perform
high-risk procedures, or to retire early from the practice of medicine.” Id.
These Legislative findings of an overwhelming public necessity are
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.
Gov.’s Task Force Rep. at v. The Task Force received specific 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.
Id. at 306. The Task Force found that “[i]n Miami, evidence reflects that 80
percent of the OB/GYNs carry no insurance and those who do are paying over
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$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.”
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Regarding the “no alternative method” showing necessary to satisfy the
second 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.
The record supports these legislative findings and determinations. For
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
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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.
Id. at 219.
The Task Force explained that “one of the primary drivers of the current
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.
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Accordingly, because the Legislature has shown an overpowering public
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
McCall also contends that the cap on noneconomic damages violates the
right 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.
Article I, section 22 of the Florida Constitution provides that “[t]he right 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.This right to a jury trial is not implicated here because survivors of a
wrongful death did not have the right to recover noneconomic damages in 1845.
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“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
Lastly, McCall contends that the cap on noneconomic damages violates the
Florida Constitution’s provision ensuring separation of powers because the cap
amounts to an impermissible legislative remittitur. I would reject this argument.
Article II, section 3 of the Florida Constitution provides that “[t]he powers
of the state government shall be divided into legislative, executive and judicial
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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.
In Rowlands v. Signal Construction Co., 549 So. 2d 1380, 1381-82 (Fla.
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.
In other words, “remittitur operates as a procedural device to bring the damages
back within the outer bounds of law.” Rowlands, 549 So. 2d at 1382 n.1.
Here, the challenged cap does not invade the province of the judiciary
because it does not operate as a legislative remittitur. The statutory cap establishes
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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.
Moreover, in Smith, 507 So. 2d at 1092, this Court rejected the 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
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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.
Id. at 1092 n.10.
Like the punitive damages statute at issue in Smith, the statutory cap 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
As explained above, the plurality chooses to disregard the rational basis
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.
Certified Question of Law from the United States Court of Appeals for the
Eleventh Circuit - Case No. 07-00508CV-3-MCR/EMT
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Henry T. Courtney and Sara Courtney-Baigorri of Courtney Law Firm, Coral
Gables, Florida; Stephen S. Poche of The Law Office of Stephen S. Poche, P.A.,
Shalimar, Florida; and Robert S. Peck and Valerie M. Nannery of Center for
Constitutional Litigation, P.C., Washington, District of Columbia,
for Appellants
Tony West, Assistant Attorney General, Pamela C. Marsh, United States Attorney,
Daniel J. Lenerz and Thomas M. Bondy, Attorneys, Appellate Staff Civil Division,
United States Department of Justice, Washington, District of Columbia; and
Pamela A. Moine, United States Attorney’s Office, Pensacola, Florida,
for Appellee
Raoul G. Cantero and David P. Draigh of White & Case LLP, Miami, Florida,
for Amici Curiae Coral Gables Hospital, Delray Medical Center, Good
Samaritan Medical Center, Hialeah Hospital, North Shore Medical Center,
North Shore Medical Center-FMC Campus, Palm Beach Gardens Medical
Center, Palmetto General Hospital, St. Mary’s Medical Center and West
Boca Medical Center
Thomas E. Warner and Dean A. Morande of Carlton Fields, P.A., West Palm
Beach, Florida,
for Amicus Curiae HCA Health Services of Florida, Inc.
Fred J. Hiestand, Sacramento, California,
for Amicus Curiae The Civil Justice Association of California
Jennifer A. Tschetter, General Counsel, Florida Department of Health, Tallahassee,
Florida; M. Drew Parker, General Counsel, and John Slye, Acting General
Counsel, Florida Department of Children & Families, Tallahassee, Florida; Dean
C. Kowalchyk, General Counsel, Florida Department of Elder Affairs, Tallahassee,
Florida; William H. Roberts, Acting General Counsel, Florida Agency for Health
Care Administration, Tallahassee, Florida; and Mike Palecki, General Counsel,
Florida Department of Agency for Persons with Disabilities, Tallahassee, Florida,
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for Amici Curiae Surgeon General Frank Famer and Florida’s Healthcare
Agencies
William W. Large, Tallahassee, Florida,
for Amicus Curiae Florida Justice Reform Institute
Stephen Hogge of Stephen Hogge, Esq., LLC, Tallahassee, Florida,
for Amicus Curiae Professor Paul H. Rubin
George N. Meros, Jr. and Allen Winsor of GrayRobinson PA, Tallahassee, Florida,
for Amici Curiae Florida College of Emergency Physicians and The Florida
Orthopaedic Society
Mark Hicks, Dinah Stein, and Shannon Kain of Hicks, Porter, Ebenfeld & Stein,
P.A., Miami, Florida,
for Amicus Curiae Florida Medical Association
Arthur J. England, Jr. and Christopher B. Carbot of Greenberg Traurig, P.A.,
Miami, Florida; Mark K. Delegal and Cynthia S. Tunnicliff of Pennington, Moore,
Wilkinson, Bell & Dunbar, P.A., Tallahassee, Florida,
for Amici Curiae The Florida Hospital Association and The Safety Net
Hospital Alliance of Florida
Pamela Jo Bondi, Attorney General and Diane G. DeWolf, Deputy Solicitor
General, Office of the Attorney General, Tallahassee, Florida,
for Amicus Curiae The State of Florida
Christopher L. Nuland and Brian Hart of Law Offices of Christopher L. Nuland,
P.A., Jacksonville, Florida,
for Amici Curiae The Florida Chapter of the American College of
Physicians, Florida Chapter of the American College of Surgeons, Florida
Obstetric and Gynecologic Society, Florida Society of Plastic Surgeons,
Florida Society of Thoracic and Cardiovascular Surgeons, Florida
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Neurosurgical Society, Florida Society of General Surgeons, Florida Society
of Dermatology and Dermatologic Surgery and Florida Gastroenterologic
Society
Michael L. Rosen of Shook Hardy & Bacon L.L.P., Tampa, Florida; Mark A.
Behrens and Cary Silverman of Shook Hardy & Bacon, Washington, District of
Columbia,
for Amici Curiae American Medical Association, American Academy of
Orthopaedic Surgeons, American Congress of Obstetricians and
Gynecologists, Chambers of Commerce of the United States of American,
Health Coalition on Liability and Access, Physicians Insurers Association of
America, Property Casualty Insurers Association of America, National
Association of Mutual Insurance Companies, and NFIB Small Business
Legal Center
Lincoln J. Connolly of Rossman, Baumberger, Reboso, Spier & Connolly, P.A.,
Miami, Florida,
for Amici Curiae Floridians for Patient Protections, Inc. and Florida
Consumer Action Network, Inc.
Barbara W. Green of Barbara Green, P.A., Coral Gables, Florida; and Joel S.
Perwin of Joel S. Perwin, P.A., Miami, Florida,
for Amici Curiae The Florida Justice Association, AARP, Florida AFL-CIO,
and Florida Public Employee Council 79, AFSCME, AFL-CIO
John S. Mills and Andrew D. Manko of The Mills Firm, P.A., Tallahassee, Florida
for Amici Curiae Professors Neil Vidmar, Tom Baker, Ralph L.
Brill, Martha Chamallas, Stephen Daniels, Thomas A. Eaton, Theodore
Eisenberg, Marc Galanter, Valerie P. Hans, Edward J. Kionka, Thomas
Koenig, Herbert Kritzer, Nancy S. Marder, Joanne Martin, Frank M.
McClellan, Deborah Jones Merritt, James T. Richardson, and Michael L.
Rustad
Stephen N. Zack, President, American Bar Association, Chicago, Illinois; and
Herman J. Russomanno, Robert J. Borrello, Herman J. Russomanno III, of
Russomanno & Borrello P.A., Miami, Florida,
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for Amicus Curiae The American Bar Association
George S. Christian, Austin, Texas,
for Amicus Curiae Texas Civil Justice League
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