We wanted to take the opportunity to inform you of a major change in Florida law which has eliminated the statutory caps for non-economic (pain and suffering damages) in medical malpractice cases resulting in death. On March 13, 2014, the Supreme Court of Florida, in Estate of McCall v. U.S. 2014 WL 959180 (Fla.2014), held that the cap on wrongful death noneconomic damages in medical malpractice actions imposed by section 766.118, Florida Statutes, violates the Equal Protection Clause of the Florida Constitution.
In reaching this decision, the Supreme Court of Florida applied a rational basis test in which it found that the differing treatment of malpractice claimants based on the number of claimants is arbitrary and rejected the prior findings of the Florida legislature regarding the existence of a legitimate state interest due to a medical malpractice insurance crisis resulting in Florida physicians discontinuing their practice or refusing to perform high-risk procedures, due to the increase in medical liability insurance premiums. Although the Supreme Court of Florida declined to answer certified questions addressing the caps in a more general nature, which would have necessarily included medical practice cases which did not result in death, on the basis that such answers would be impermissible advisory opinions, we believe that the court’s findings in McCall has laid an excellent foundation for challenges to the existence of the caps in their entirety. We would anticipate such a challenge in any case in Florida where a request for a reduction of a verdict based on the non-economic damages caps is requested.
Finally, the court’s findings in McCall have laid an excellent foundation for challenges to the existence of the caps in their entirety. We note that the McCall decision has not yet been released for publication in the permanent law reports, but the court’s docket does not reflect that rehearing has been sought, so we do expect that will occur in short order.