Power to the People! Florida’s Arbitrary and Capricious Medical Malpractice Damage Caps Declared Unconstitutional

scales of justice.jpgOn March 13, 2014, the Florida Supreme Court, by its decision in McCall v. United States of America, exposed the fraud of “Tort Reform” perpetrated on the American public by Karl Rove, George Bush, Jeb Bush and others of that ilk.

Michelle McCall, a U.S. military veteran, died from shock and cardiac arrest as a result of severe blood loss after giving birth. She was removed from life support on February 27, 2006. A medical malpractice lawsuit was brought by her survivors, Ms. McCall’s parents and the newborn child. Following a lengthy trial, the district court concluded that the survivors’ noneconomic damages, or nonfinancial losses, totaled $2 million, including $500,000 for Ms. McCall’s son and $750,000 for each of her parents.

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.

The Petitioners (the survivors) challenged the arbitrary damage caps of 766.118 by appealing to the United States Court of Appeals for the Eleventh Circuit. Even though the survivors lost the appeal, the Eleventh Circuit asked the Florida Supreme Court to take jurisdiction, pursuant to pursuant to Art. V, § 3(b)(6), Fla. Const., because there was no controlling precedent of the supreme court of Florida. The supreme court accepted the invitation.

While the supreme court was presented by the Eleventh Circuit with four constitutional questions, it rephrased the questions into just one question:


The supreme court answered the rephrased certified question in the affirmative and 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.

A good way of understanding the climate that allowed for the passage of arbitrary and capricious damage caps is to watch the documentary movie, Hot Coffee. The documentary exposes, in the eloquent and insightful words of Florida trial lawyer Stuart Ratzan,

“the insidious political tool Republicans, under the tutelage of Karl Rove and George and Jeb Bush, used to advance their agenda and win elections. Rove and the Bush brothers used tort reform to scare voters into believing that lawsuits, trial lawyers, and jury verdicts were the chief threat to our economy, to jobs, to reasonable prices, and to access to health care. By creating the bogeyman of “greedy trial lawyers” and runaway juries, Rove and the Bush brothers persuaded legislatures, like the Florida legislature, to eviscerate the jury system altogether. Ignoring the facts that jury verdicts are the product of weeks of intense and careful analysis of evidence, that juries are historically eloquent at determining the fairness and righteousness of a cause, and most importantly, that jury verdicts make us all safer by creating assurances and incentives that curb anti-social and dangerous behavior, Rove and the Bush brothers pulled the wool over our eyes and scared us into ideas that would destroy our judicial branch.”

The Florida Supreme Court’s McCall decision further exposes the lies. Writing for the court majority, Justice R. Fred Lewis states:

[T[he 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.

A proper equal protection analysis under the rational basis test requires the Supreme 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). In other words, rather than simply rubber stamp the Legislature’s asserted justification for the cap, the court is obligated to consider the existing factors and circumstances to determine whether there is legitimacy to that justification. The majority did this, and its conclusion is a resounding NO!

According to Justice Lewis, “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.”

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 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.

However, following a careful analysis of the Task Force report, the supreme court majority makes these strong statements:

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. (Bold and italics supplied for emphasis.)

[W]e conclude the Legislature’s determination that “the increase in medical malpractice liability insurance 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” 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. (Bold and italics supplied for emphasis.)

The report was prepared by Governor Jeb Bush’s Task Force.

While the McCall decision involved wrongful death resulting from medical malpractice, its analysis seems to be equally applicable to legislatively imposed medical malpractice damage caps imposed on those who survive malpractice with lifelong pain, suffering, and misery.

By its decision, Florida’s Supreme Court has given the power back to the people. America’s Founding Fathers, who waged a revolution for the right to a jury system, would be proud.

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Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

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