Florida Supreme Court Makes History by Rejecting Medical Malpractice Damage Caps on Noneconomic Damages in Wrongful Death

The Florida Supreme Court has sent shockwaves through the legal world with its recent pronouncement that the state's cap on noneconomic damages in medical malpractice cases is unconstitutional when applied to wrongful death actions.

The case involves a young woman who died shortly after giving birth due to a series of medical errors made during the delivery. Her estate filed a wrongful death lawsuit in federal court under the Federal Tort Claims Act, since the woman received her medical care at a clinic on a U.S. Air Force Base as an Air Force dependent.

The United States District Court for the Northern District of Florida applied Florida law, namely the Florida Wrongful Death Act, to determine the liability of the doctors and the amount of damages owed. In its 2009 Order and Final Judgment, the court awarded slightly under $1 million in economic damages and $2 million in noneconomic (pain and suffering) damages, with $500,000 of that amount going to the infant child and the other $1.5 to the deceased woman's parents. However, applying the Florida damages caps, the court was forced to cut the noneconomic damage award in half from $2 million to $1 million.

The plaintiffs argued that the damages cap was unconstitutional on several grounds. The District Court did not have authority to ask the Florida Supreme Court to rule on the constitutionality of the law, but stated that it did not believe the court would overturn the caps.

The case was appealed to the United States Court of Appeals for the Second Circuit, which in 2011 upheld the application of the damages cap by the District Court. The court held that the damages cap did not violate the Equal Protection clause or Takings clause of U.S. Constitution or the Takings clause of the Florida Constitution. As to the rest of the plaintiff's constitutional arguments, the Court certified those questions to the Florida Supreme Court, asking it to rule on the constitutionality of Florida's statute in relation to Equal Protection, Access to Courts, Trial by Jury, and Separation of Powers under the Florida Constitution.

The case was argued to the Florida Supreme Court in 2012, which after deliberating for two years, finally released its decision earlier this month. The court held "that the cap on wrongful death noneconomic damages provided in section 766.118, Florida Statutes, violates the Equal Protection Clause of the Florida Constitution." The court quoted Article I, Section 2 of the Florida Constitution, which states that "All natural persons, female and male alike, are equal before the law." Since it found the caps to be unconstitutional on equal protection grounds, the court did not need to address the other questions certified by the Eleventh Circuit.

According to the court, the cap on wrongful death noneconomic damages imposes "unfair and illogical burdens" in cases involving multiple claimants as compared to cases with only one claimant. Not only is this disparity arbitrary, it does not bear any rational relationship to the legislature's stated reason for adopting caps in the first place, which was to address an alleged crisis in Florida medical malpractice insurance. The court went on to question whether such a crisis ever actually existed or was merely manufactured to provide a premise for enacting "tort reform."

Florida Supreme Court Refuses to Implement Rule Restricting Expert Testimony in Medical Malpractice Cases

Earlier this month, the Florida Supreme Court declined to adopt a rule into the state's Evidence Code that would have limited which doctors could testify as expert witnesses in a medical malpractice case. The new rule was part of SB 1792, a pro-doctor medical malpractice bill passed into law earlier this year.

Medical experts are a critical part of any medical malpractice case. In order to be successful, an injured plaintiff must provide an expert who can testify as to what the appropriate standard of care was in the particular situation and also deliver an opinion that the defendant doctor violated that standard of care. Under Florida law currently, a plaintiff's medical expert can be a doctor practicing in the same specialty or a similar specialty that involves the same medical condition. The judge in a medical malpractice case decides whether or not a proposed expert is qualified before the doctor is permitted to serve as an expert witness.

Under the new rule, which modifies Florida Statute 766.102, a plaintiff's expert must practice the exact same kind of medicine as the defendant doctor. The law also limits the ability of judges to decide whether a proposed doctor is qualified or disqualified from serving as an expert witness.

Both sides of the issue disagree as to the effect of the court's decision not to amend the Florida Evidence Code to incorporate the change in the law. Proponents of the law say that even though the court declined to integrate the rule into the Evidence Code, it did not strike down the law as unconstitutional. Opponents of the law say that the court did exactly that. You can read the court's decision here. Medical malpractice lawyers in the state agree with the Board of Governors of the Florida Bar that to impose the rule would have a chilling effect on the ability to obtain expert witnesses and would be prejudicial to the administration of justice.

Florida Law More Restrictive than Colorado

Colorado statute 13-64-401 allows a doctor to testify as an expert witness so long as the doctor is a licensed physician who can demonstrate training, education, knowledge and experience in the evaluation, diagnosis and treatment of the subject disease or injury, and is substantially familiar with the applicable standards of care and practice related to the incident. Also under the law, a doctor who is an expert in one medical subspecialty cannot testify against a physician in another medical subspecialty, unless the standards of care and practice in the two fields are similar. This law arguably is more flexible than the rule in Florida even before the law was changed.