blood-pressure-1573037_1920No, this is not déjà vu. On June 8, 2017, the Supreme Court of Florida struck down another legislative mechanism to limit damages in personal injury cases. In North Broward Hospital District v. Kalitan, the Supreme Court decided that non-economic damage caps on medical malpractice actions violate the Equal Protection Clause of the Florida Constitution. Non-economic damages are non-pecuniary harms such as permanent disability, disfigurement, blindness, loss of a limb, paralysis, trauma, or physical pain and suffering. While shocking to some, this decision is not entirely surprising due to the Supreme Court’s 2014 decision in Estate of McCall v. United States that invalidated non-economic damage caps for wrongful death actions under equal protection.

In 2003, the Florida Legislature decided to address the medical malpractice insurance crisis in Florida by enacting Florida Statute 766.118, which limits the non-economic damages that could be awarded in personal injury matters arising from medical negligence.  According to legislative findings at that time, as cited in the McCall opinion, the increase in medical malpractice liability insurance premiums 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.” To counter this crisis, Florida Statute 776.118(2) limits non-economic damages awards for medical negligence of practitioners to $500,000 per claimant except where the negligence resulted in a permanent vegetative state, death, or catastrophic injury and a manifest injustice would occur unless increased damages are awarded.  In that case, damages may be awarded in an amount up to $1 million. Section 766.118(3) limits damages to $750,000 and $1.5 million, respectively, when the injury results from the negligence of non-practitioners. By enacting theses caps, the Legislature anticipated that physicians’ medical malpractice insurance premiums would drop, physicians would remain in Florida, not opt for early retirement, the number of physicians practicing without insurance would decrease, and the number of physicians who refused to perform high-risk procedures would decrease.

While it was the Legislature’s position that this alleged crisis was said to be of an “unprecedented magnitude,” the Supreme Court in Kalitan determined that the Legislature’s findings were not supported by the available data. In fact, in the years since the cap’s implementation, the Court found that the intended effects have not manifested themselves.  Instead, physicians have chosen to remain in Florida, but still opt not to carry malpractice insurance; medical malpractice premiums are the same, if not slightly higher; and insurance income increased.

Even if the data were accurate, the Supreme Court declared that the statute nonetheless arbitrarily infringes upon the constitutional guarantee of equal protection under the laws, because there is a lack of evidence supporting a direct correlation between non-economic damage caps and reduced malpractice premiums. Relying on its McCall decision, the Supreme Court explained that the damage caps have the effect of saving a minimal amount for many by imposing devastating costs on the most catastrophically injured, and those who sustain the greatest damage and loss. Doing so “offends the fundamental notion of equal justice under the law.” To illustrate this example, the Supreme Court offered a helpful hypothetical: “Plaintiff A suffers a moderate injury; therefore recovery is capped at $500,000 if caused by a practitioner and $750,000 if caused by a non-practitioner. Plaintiff B suffers a statutorily defined ‘catastrophic injury,’ such as the loss of a hand, and therefore recovery may be capped at $1 million if caused by a practitioner and $1.5 million if caused by a non-practitioner. Plaintiff C suffers a drastic injury, such as a permanent vegetative state, and therefore recovery is capped at $1 million if caused by a practitioner and $1.5 million if caused by a non-practitioner. Under these circumstances, plaintiff A has the best chance of being fully compensated, plaintiff B may have a chance of being fully compensated, and plaintiff C has utterly no chance of being fully compensated.”

While this ruling leaves defendants in medical malpractice actions vulnerable to higher jury verdicts, it is also a reminder to implement a best practices approach in defending these claims at the pre-suit phase. Implementing a protocol for pre-suit investigations, including a thorough background investigation of the claimant and claimant’s medical expert, as well as a medical review, and the policies and procedures of the defendant, is key in assessing liability and providing your client an informed basis to consider early resolution when appropriate. Knowing when to vigorously pursue a defense is just as important as recognizing when you are fighting a losing battle. Invest your time and resources wisely by litigating cases that have likelihood of success, and save your client’s time and expense on cases that don’t.