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The Not So Wrongful Death of Florida’s Wrongful Death Caps

By Geoffrey W. Vance

Mark Twain once said, "I didn't attend the funeral, but I sent a nice letter saying I have approved of it." The Florida Supreme Court, however, recently scheduled the funeral and wrote its letter approving the death of Florida's statutory caps on wrongful death noneconomic damages. On March 13, 2014, Florida's highest court handed down a long anticipated ruling in Estate of McCall v. United States, Case No. SC11-1148, 2014 WL 959180 (March 13, 2014), that found Florida Statute §766.118 unconstitutional due to its violation of Florida's Equal Protection clause.

In 2003, the Florida Legislature claimed, "Florida is in the midst of a medical malpractice insurance crisis of unprecedented magnitude." In asserting this claim, the legislature relied heavily upon a report prepared by the Governor's Select Task Force on Healthcare Professional Liability Insurance (Task Force). In short, this Task Force purportedly found that the noneconomic damage awards granted by juries were causing a medical crisis that included rising insurance premiums, physicians fleeing Florida due to potential liability, and the consumer left bare with only limited healthcare options. To stem this "crisis," the Legislature enacted Florida Statute §766.118 that limited the noneconomic damages for medical malpractice claims through statutory caps, including a cap of $500,000 per claimant and $1 million recoverable from all practitioners for wrongful death claims. Thus, under Florida's statutory cap found in §766.118, one's pain, suffering, and other noneconomic damages were capped at $500,000 for the wrongful death of a loved one.

After her death during child birth on a military base, Michelle McCall's estate filed a medical malpractice and wrongful death claim against the United States. The district court awarded the petitioners a total of $2 million in noneconomic damages: $500,000 for McCall's son and $750,000 for each of her parents. This award was then reduced to $1 million with each claimant receiving half of what was originally awarded in accordance with Florida's statutory cap on wrongful death noneconomic damages found in §766.118. On appeal, the United States Court of Appeals for the Eleventh Circuit affirmed the application of the statutory cap but granted a motion by the petitioners to certify four questions that challenged the constitutionality of the cap under the Florida Constitution. Be-cause the case revolved around a wrongful death, the Florida Supreme Court only reviewed the following question: "Does the statutory cap on wrongful death noneconomic damages, Fla. Stat. §766.118, violate the right to Equal Protection under Article I, Section 2 of the Florida Constitution?"

Florida Constitution Article I, Section 2 provides, "All natural persons, female and male alike, are equal before the law" and that "No person shall be deprived of any right because of race, religion, national origin, or physical disability." In a Florida constitutional Equal Protection analysis, Florida's Constitution provides the following four suspect classes: race, religion, national origin, and physical disability. Should a law make a distinction based upon one of those suspect classes, Florida courts will apply a strict scrutiny analysis wherein the law must be narrowly tailored to meet a compelling government interest. However, should the law not make a classification upon a suspect class, the courts will apply a rational basis test that only requires the law to be reasonably or rationally related to a legitimate government interest - a much easier test to satisfy than the strict scrutiny analysis.

The McCall court found that §766.118 discriminated based upon the number of claimants, stating that the statute "irrationally impacts circumstances which multiple claimants/survivors differently. . ." For example, the more family a deceased victim has, the less that family can recover. Therefore, the Court ruled that the statute was making a distinction based upon the number of claimants instead of a suspect class, thereby requiring a rational basis analysis.

Contrary to the findings of the Governor's Task Force, the McCall court further found that "the number of physicians in Florida were actually increasing, not decreasing," and that there was no medical malpractice crisis in Florida. The Court also took note that a mere 7.5% of Florida cases resulting in awards of $1 million or more actually involved a jury trial verdict. Without a medical malpractice crisis, the Florida Supreme Court determined that the Legislature did not have a legitimate interest to pass §766.118 capping the noneconomic damages for wrongful death claims. Moreover, the court ruled that even if there was a medical malpractice crisis, the Legislature lacked proof of a rational relationship between §766.118 and the alleviation of that crisis.

While the Florida Supreme Court limited their purview to that of noneconomic damages in wrongful death claims, courts could easily apply the same rationale to the remaining statutory caps in medical malpractice cases. The Florida Supreme Court has already determined that there was no legitimate interest in passing §766.118. Therefore, the Florida Supreme Court seems likely to apply their reasoning to the statutory caps of medical malpractice cases where the victim survives. While the axe has already swung on Florida's wrongful death caps, McCall has rung the death knell for the remainder of §766.118