Amidst the many facets of medical malpractice litigation, noneconomic damage caps are once again at the center of the debate. Recently, several bills in the Florida Legislature attempted to reinstate the noneconomic damage caps in medical malpractice cases. While none of these bills passed and the legislative session for 2024 is over, an analysis of the failed bills, related case law, and other state laws could help ascertain the changes needed for future bills to pass into law.
I. Background on Noneconomic Damage Caps
A claimant in a medical malpractice suit can either be a patient that was injured from medical malpractice or the survivors of a patient that died from medical malpractice. A claimant can seek economic and noneconomic damages. Economic damages are typically lost wages, medical expenses, and funeral expenses. Noneconomic damages include pain and suffering, mental anguish, and loss of capacity for enjoyment of life.[i] In 2003, the Florida Legislature placed caps on a claimant’s recovery of noneconomic damages for suits against (1) practitioners, (2) nonpractitioner defendants, (3) practitioners providing emergency services and care, (4) nonpractitioner defendants providing emergency services and care, and (5) practitioners providing services and care to a Medicaid recipient.[ii] Economic damages are not capped.
Additionally, these caps apply to the recovery for all claimants, regardless of the number of claimants or defendants. For example, if a decedent’s five survivors obtained a jury verdict for $2,000,000 in noneconomic damages against the defendant practitioners (e.g., medical doctors), the cap would limit the survivor’s recovery to $500,000 for all five survivors to share, or $1,000,000 if manifest injustice would occur. Similarly, if a patient were injured by a practitioner’s medical malpractice and received a jury verdict of $2,000,000, that patient’s recovery would be reduced to $500,000.
II. Important Case Law
The Florida Legislature created the caps to limit unreasonably high jury awards, reduce patient medical care costs, and lower medical malpractice liability insurance premiums.[iii] Despite the legislature’s intent, two Florida Supreme Court rulings in 2014 and 2017 found these caps unconstitutional under Florida’s Equal Protection clause, thus eliminating them.
In Estate of McCall v. United States, the Florida Supreme Court overturned the caps as applied to a decedent’s survivors.[iv] Likewise, in N. Broward Hosp. Dist. v. Kalitan, the Florida Supreme Court struck down the caps for a patient injured by medical malpractice. [v] For both cases, the court applied Equal Protection’s rational basis test, which examines whether the law “bear[s] a rational and reasonable relationship to a legitimate state objective” and is not “arbitrary or capriciously imposed.”[vi] The Florida Supreme Court ruled that the alleged medical malpractice insurance crisis was not a legitimate governmental purpose since the noneconomic damage caps would not alleviate the purported insurance crisis. Additionally, the Florida Supreme Court viewed the caps as arbitrary since the caps unfairly treated different categories of plaintiffs.
The court was not convinced that the Florida Legislature’s findings adequately correlated to reduced insurance premiums. Going forward, the legislature should conduct a more thorough analysis of the caps’ effect on lowering insurance premiums to survive rational basis. For example, the American Medical Association has evaluated the caps’ effect and found in 2022 that “obstetricians and gynecologists faced base premiums ranging from $49,804 in Los Angeles County, California to $226,224 in Miami-Dade County, Florida.”[vii] Despite these caps being no longer in effect, many lawmakers and lobbyists continue to advocate for similar caps that they believe can pass constitutional scrutiny.
III. Florida’s 2024 Legislative Session
In the Florida Legislature’s 2024 session, five bills were proposed pertaining to the noneconomic caps and other medical malpractice issues, but none passed.[viii] One of the more popular bills was Senator Clay Yarborough’s bill, which removed Florida’s controversial “Free Kill” and included modified noneconomic damage caps.[ix] Florida’s “Free Kill” law refers to a law that prevents a decedent’s survivors from recovering when the decedent is under twenty-five years old, is unmarried or widowed, and has no children under twenty-five years old.[x] Like the Florida Legislature’s intention with the caps, the “Free Kill” law was intended to reduce medical malpractice insurance premiums. Since many lawmakers believe that Florida’s “Free Kill” should not be eliminated, Senator Yarborough’s bill to garner more support included modified caps that would have allowed each survivor to recover the full amount of the cap, regardless of the number of survivors.[xi] Thus, if a decedent had five survivors, each survivor could recover $500,000. In comparison to the prior law, all five survivors would be limited to sharing the $500,000 cap.
This significant change would provide the law with a better opportunity to survive Equal Protection’s rational basis test because it is fairer to the survivors, and the legislature specifically found the caps would reduce high medical malpractice insurance premiums that are causing expensive medical care and doctors to move to other states. Proponents of the bill also believe that the current Florida Supreme Court, with five justices appointed by Florida Governor Ron DeSantis, will view the caps more favorably than the prior court.
Another bill by Senator Jonathan Martin proposed keeping the same caps but amended Florida’s “Free Kill” law to allow parents to recover for the death of their adult child.[xii] However, the bill would have still prevented an adult child from recovering for the death of their unmarried parent. One step further, Senator Lauren Book’s bill would have allowed both parents and adult children to recover for their loved one’s death.[xiii] Both bills did not gain as much traction as Senator Yarborough’s bill. Nonetheless, both bills show the desire to change Florida’s “Free Kill” law must be balanced with a modification of the caps.
IV. Noneconomic Damage Caps in Other States
When creating new caps, the Florida Legislature should closely examine the states with and without medical malpractice noneconomic damage caps. About twenty-nine states have caps on medical malpractice, demonstrating the widespread need for caps to alleviate high insurance premiums. While some states, like Illinois and New Hampshire, have found caps on noneconomic damages unconstitutional, an examination of all states with caps is prudent.
In California, the medical malpractice noneconomic damage caps for personal injury are $350,000 and for wrongful death are $500,000.[xiv] Further, the statute provides that the caps will annually increase with inflation . In contrast, Florida’s prior caps did not adjust for inflation. Hypothetically, if Florida’s future caps were adjusted for inflation, the caps would be reasonable and likely pass rational basis review.
In Maryland, the noneconomic damage caps are lower in medical malpractice suits than in general negligence cases.[xv] Additionally, the medical malpractice caps increase if there are more than two survivors seeking damages for the decedent’s death. If Florida were to adopt Maryland’s distinction between medical malpractice and general negligence, the law would be unlikely to pass Equal Protection scrutiny. Yet, an increased cap for multiple survivors is a novel approach to help Florida’s caps survive constitutional muster.
V. Conclusion
In summary, medical malpractice noneconomic damage caps face two hurdles: the Florida Legislature passing new caps and the caps surviving rational basis review. For the law to be passed, there must be a compromise between modifying the caps and amending current laws, like Florida’s “Free Kill” law. Regarding an Equal Protection challenge, the legislature must examine the prior Florida Supreme Court opinions and other states’ caps to concretely demonstrate that the modified caps will directly lower medical malpractice insurance premiums.
[i] Fla. Stat. § 766.202(8) (2024).
Noneconomic damages” means 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. Id.
[ii] See Fla. Stat. § 766.118(2)–(6) (2024) (providing the five categories of noneconomic damage caps).
[iii] Fla. Stat. § 766.201(1)(a)–(e) (2024) (“Medical malpractice liability insurance premiums have increased dramatically in recent years, resulting in increased medical care costs for most patients and functional unavailability of malpractice insurance for some physicians.”) (“The primary cause of increased medical malpractice liability insurance premiums has been the substantial increase in loss payments to claimants caused by tremendous increases in the amounts of paid claims.”).
[iv] Estate of McCall v. United States, 134 So. 3d 894, 901 (Fla. 2014).
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 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. Id.
[v] N. Broward Hosp. Dist. v. Kalitan, 219 So. 3d 49, 59 (Fla. 2017).
We conclude that the caps on noneconomic damages in sections 766.118(2) and (3) arbitrarily reduce damage awards for plaintiffs who suffer the most drastic injuries. We further conclude that because there is no evidence of a continuing medical malpractice insurance crisis justifying the arbitrary and invidious discrimination between medical malpractice victims, there is no rational relationship between the personal injury noneconomic damage caps in section 766.118 and alleviating this purported crisis. Id.
[vi] Estate of McCall, 134 So. 3d at 901 (citing Dep’t of Corr. v. Fla. Nurses Ass’n, 508 So. 2d 317, 319 (Fla. 1987)).
[vii] See Surge in Medical Liability Premiums Increases Reaches Fourth Year, American Medical Association (Apr. 19 2023), https://www.ama-assn.org/press-center/press-releases/surge-medical-liability-premiums-increases-reaches-fourth-year.
[viii] See Jenna Bourne, 5 Bills Filed to Change Florida’s Controversial Medical Malpractice Law, 10 Tampa Bay (Dec. 26, 2023), https://www.wtsp.com/article/news/investigations/10-investigates/florida-free-kill-law-medical-malpractice-bills-filed/67-dd568397-bd2e-4c77-9854-601809084199.
[ix] S. 248 Leg. Reg. Sess. (Fla. 2024), https://www.flsenate.gov/Session/Bill/2024/248 (Senator Clay Yarborough’s bill).
[x] Fla. Stat. § 768.21(8) (2024) (“The damages specified in subsection (3) shall not be recoverable by adult children and the damages specified in subsection (4) shall not be recoverable by parents of an adult child with respect to claims for medical negligence as defined by s. 766.106(1).”).
[xi] See Jenna Bourne, Floridians Suing for Medical Malpractice Could Soon See Caps on How Much Money They Get, 10 Tampa Bay (Jan. 23, 2024), https://www.wtsp.com/article/news/investigations/10-investigates/florida-medical-malpractice-free-kill-caps/67-03a9d17a-b5b9-4a75-8a07-1f73565c1487 (speaking on the issue at the State Senate Judiciary Committee, Andy Bolin, an Ybor City attorney, stated “If we are going to expand the universe of claimants in the state of Florida, there must be some countermeasure, some counterbalance that is going to provide fairness and balance in the civil justice system.”).
[xii] See S. 310 Leg. Reg. Sess. (Fla. 2024), https://www.flsenate.gov/Session/Bill/2024/310 (Senator Jonathan Martin’s bill).
[xiii] See S. 442 Leg. Reg. Sess. (Fla. 2024), https://www.flsenate.gov/Session/Bill/2024/442 (Senator Lauren Book’s bill).
[xiv] See Cal. Civ. Code § 3333.2 (2024).
[xv] See Md. Code Ann., Cts. & Jud. Proc. § 3-2A09 (2024).
