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North Broward Hospital District, et al. v. Susan Kalitan, Case Nos. 4D11-4806, 4D11-4833, 4D11-4834 (4th DCA

In Kalitan, the Fourth District ruled that the medical malpractice caps on non-economic damages under Fla. Stat. 766.118 are unconstitutional when applied in personal injury actions, based on the Florida Supreme Court’s Estate of McCall v. U.S. opinion. In 2007, the plaintiff went in for surgery to address carpal tunnel syndrome. During intubation for anesthesia, one of the tubes perforated the plaintiff’s esophagus. The perforation went unnoticed, and the plaintiff was ultimately rushed back to the hospital for life saving surgery and kept in a medically induced coma for several weeks. The plaintiff continued to suffer from pain well after the incident, and developed a mental disorder from the incident. The lawsuit followed. Eventually, a jury awarded substantial economic and non-economic damages to the plaintiff. The trial court reduced the non-economic damages based on the cap found in Fla. Stat. 766.118, and rejected the plaintiff’s argument that the cap was unconstitutional. The parties each appealed on various grounds.

The Fourth District began with an overview of the Florida Supreme Court’s recent decision in McCall, in which the court found unconstitutional the Fla. Stat. 766.118 caps when applied in wrongful death cases. The McCall court concluded that the caps “irrationally impact circumstances which have multiple claimants/survivors differently and far less favorably than circumstances in which there is a single claimant survivor.” The McCall court applied the rational basis test to the caps. The court found no support for the Legislature’s purported purpose for implementing caps on non-economic damages – a medical malpractice crisis in which increased medical malpractice liability insurance rates forced physicians to practice uninsured, to leave Florida, to avoid high-risk procedures and to retire early. The McCall court next found that even if a legitimate governmental purpose existed – i.e., a risk of a physician shortage – when the caps were enacted, there is no correlation today between damages caps and reduced malpractice premiums. Thus, there is no rational relationship between a cap on non-economic damages and alleviation of the purported medical malpractice crisis. The McCall court concluded that the cap on non-economic damages presently serves no purpose other than to arbitrarily punish the most grievously injured or their surviving family members.

Applying McCall to this case, the Fourth District ruled that the Fla. Stat. 766.118 caps are unconstitutional in personal injury claims. The Kalitan court similarly applied the rational basis test. To maintain constitutionality under the rational basis test, a statute must bear a rational and reasonable relationship to a legitimate state objective, and it cannot be arbitrarily or capriciously imposed. The Kalitan court noted that McCall concluded that the medical malpractice crisis that the Legislature intended for caps to address no longer exists. The Kalitan noted that Fla. Stat. 766.118 applies to both wrongful death and personal injury actions. If the medical malpractice crisis was the objective of Fla. Stat. 766.118, if the objective no longer exists, then there is no longer a legitimate state objective to which the caps could rationally and reasonably relate. Accordingly, the Fourth District ruled that the Fla. Stat. 766.118 caps lack a rational and reasonable relation to any state objective, and therefore, are unconstitutional not only in wrongful death actions but also in personal injury suits.

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