Florida Appellate Court Rules Medical Malpractice Caps Unconstitutional: Florida Supreme Court to Weigh In
January 22, 2016
A case involving a medical malpractice claim, North Broward Hospital District, et al. v. Kalitan, Nos. 4D11-4806, 4D11-4833 and 4D11-4834 (Fla. 4th DCA July 1, 2015), came before the Florida Fourth District Court of Appeal following a judgment issued by the circuit court for the Seventeenth Judicial Circuit in Broward County. The circuit court judgment imposed caps on the noneconomic damages awarded to the plaintiff in the case per section 766.118, Florida Statutes.
The Fourth District reversed the circuit court’s decision directing it to reinstate the total damages award as found by the jury. Accordingly, the defendants/appellants, North Broward Hospital District, et al., appealed to the Florida Supreme Court requesting that the constitutionality of section 766.118, Florida Statutes be upheld as to personal injury caps. Appellants asserted that the case relied on by the Fourth District in its ruling, Estate of McCall v. United States, 134 So. 3d 894 (Fla. 2014), is not precedential. Appellants further argued that even if it was to be considered as such it is limited in its scope insofar as it was a finding as to the unconstitutionality of section 766.118 as it pertained to aggregate/per incident caps in a multiple claimant wrongful death case.
To read appellants’ full initial brief filed with the Florida Supreme Court, click here.
The Attorney General, on behalf of the State of Florida, the Florida Justice Reform Institute, and the Florida Hospital Association Inc. (FHA) followed suit by filing amicus curiae briefs with the Florida Supreme Court in support of the appellants’ position. To read the amicus curiae brief of the Florida Justice Reform Institute and the FHA, click here.
The Attorney General, in its amicus curiae brief, goes so far as to say, “Once the Fourth District’s flawed reading of McCall is properly set aside, it is clear Kalitan’s equal protection arguments cannot succeed [emphasis added].” To read the full amicus curiae brief of the State of Florida, click here.
An Overview of the Factual Background of North Broward Hospital District et al. v. Kalitan.
In 2007, plaintiff/appellee, Susan Kalitan, went to appellant, North Broward Hospital District, for outpatient surgery to treat carpal tunnel syndrome in her wrist. As part of the surgery, Kalitan was required to be placed under general anesthesia. Defendant/appellant, Dr. Robert Alexander, was Kalitan’s anesthesiologist of record, providing anesthesia care for Kalitan during her surgery. Dr. Alexander had a team working with him that make up the remainder of the defendants/appellants in the case.
The administration of the anesthesia to Kalitan involved intubation. During the intubation procedure, which Dr. Alexander claimed he personally performed, Kalitan’s esophagus was perforated by one of the tubes. At the time of the surgery and directly following the surgery, in recovery, no one was aware of the perforation of Kalitan’s esophagus. Kalitan was administered a drug for chest pain she was experiencing post-surgery, but was released from the hospital when no issue was found with her heart.
The next day, Kalitan’s neighbor found her unresponsive and rushed her to the emergency room of a nearby hospital where the diagnosis of the perforated esophagus was discovered. Kalitan underwent emergency life-saving surgery and woke up in the intensive care unit (ICU) several weeks later from a drug-induced coma. She had to have additional surgeries, undergo intensive therapy to learn how to eat again and regain mobility, and she testified that she still suffers from pain throughout the upper half of her body. Additionally, Kalitan testified she also suffers from serious mental disorders resulting from the traumatic experience and the physical limitations now imposed on her following the incident.
A Review of McCall.
In Estate of McCall v. United States, 134 So. 3d 894 (Fla. 2014), Michelle McCall, died during childbirth as a result of the Air Force doctors’ and nurses’ negligence. Accordingly, Mrs. McCall’s family (the plaintiffs) sued the United States under the Federal Tort Act. The district court issued a judgment awarding the plaintiffs $2 million in noneconomic damages. Following the application of Florida’s noneconomic damages cap, the plaintiffs’ recovery was limited to half of the original award.
The plaintiffs appealed to the Eleventh Circuit Court of Appeals challenging the application and constitutionality of the statutory cap on wrongful death noneconomic damages. The Eleventh Circuit affirmed the lower court’s decision, but granted petitioners leave to certify questions to the Florida Supreme Court regarding the challenges presented to the statutory caps.
Five of the seven Florida Supreme Court justices ultimately agreed that the caps, as applied to wrongful death actions and as encompassed in section 766.118, failed the rational basis test and violated an individual’s right to equal protection under the Florida constitution.
To read the full opinion of the Florida Supreme Court in Estate of McCall v. United States, click here.
Section 766.118: The Law At Issue.
Section 766.118, Florida Statutes, provides limitations on recovery of noneconomic damages resulting from the negligence of health care practitioners and other medical professionals. This law further mandates caps for noneconomic damages per practitioner regardless of the number of claimants to a cause of action.
The argument in this case is whether or not the law is still applicable and constitutional under the rational basis standard. The Fourth District held that although appellants attempted to distinguish McCall from the present case (where the court acknowledges clear distinctions do exist), “McCall mandates a finding that the caps in section 766.118 personal injury cases are similarly unconstitutional. To conclude otherwise would be disingenuous.”
Additionally, the Fourth District noted that insufficient evidence currently exists to support the Legislature’s determination of a direct correlation between damages caps and reduced malpractice premiums. The district court relied upon the Florida Supreme Court’s plurality opinion in McCall, which concluded, “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…the cap on noneconomic damages [presently] serves no other purpose than to arbitrarily punish the most grievously injured…”
However, the Attorney General, in support of appellants, contended that “the statutory damages cap […] was part of a comprehensive legislative solution to a medical malpractice crisis that the Legislature determined was threatening the health and [well-being] of Floridians. The Legislature enacted the law […] after extensive research and deliberation, and the cap has proven to be effective in reducing insurance costs, increasing the efficiency of the medical system and promoting the Legislature’s goals of ensuring access to affordable care.”
The Attorney General further asserted, “Because the Legislature’s enactments enjoy a strong presumption of constitutionality, a challenger like Kalitan must satisfy a heavy burden…”
Florida Supreme Court to Weigh In.
Kalitan has been granted an extension of time to January 28, 2016, in which to serve an answer brief on the merits. Only time will tell the fate of section 766.118, Florida Statutes, as we continue to follow this case and await the Florida Supreme Court’s opinion.