Mark Perenich is a medical malpractice attorney in Clearwater/Tampa area, after 30 years we he has seen everyday people become barred from the court.  After the legislature made unjust law based on wrong/misguided/incorrect information, our law makers decided to limit your rights.  The statutory scheme created is not fair, and it does not accomplish the goals the legislature sought out to accomplish.  We explore these issues and more in the expose below.  I would like to thank Mr. Siegel for the contribution below, it was well written and well-thought-out; I instantly felt compelled to post it to my site.


Access to the Courts: Constitutional Protection vs. Legislative Limitation

 I.         Introduction

The right for every American to have their day in court is the foundation for American jurisprudence. As Justice Marshall wrote, “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.” Marbury v. Madison, 5 U.S. 137, 163 (1803). If an injured individual was not guaranteed the opportunity to seek proper redress in the courts, our civil laws would lack any significant means for enforcement. Although the United States Constitution does not contain a specific provision guaranteeing access to courts, the Florida Supreme Court “has held that there is such a right arising from several constitutional provisions including the First Amendment, the Due Process Clause, and the Equal Protection Clause.” Mitchell v. Moore, 786 So.2d 521, 525 (Fla. 2001). Tellingly, 39 states do expressly guarantee their citizens remedies from tortious injuries. David Schuman, The Right to A Remedy, 65 Temp. L. Rev. 1197, 1201 (1992).

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law books

Guaranteed access to the courts for Florida’s citizens has been engrained in Florida’s Constitution since its first adoption in 1838. Fla. Const. of 1838, art. I, §9. Unlike the U.S. Constitution, Florida’s Constitution expressly guarantees a citizen’s access to seek proper redress in the court system. Traylor v. State, 596 So.2d 957, 963 (Fla. 1992). Because the right to access the courts is expressly stated in Florida’s Constitution, “it deserves more protection that those rights found only by implication.” Mitchell v. Moore, 786 So.2d 521, 527 (Fla. 2001). Article 1, section 21 of the Florida Constitution states, “The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.” Fla. Const. art. I, § 21. Because it is included in the Declaration of Rights of the Florida Constitution, “[t]he right to go to court to resolve our disputes is one of our fundamental rights.” Psychiatric Associates v. Siegel, 610 So.2d 419, 424 (Fla. 1992).

Historically, courts have liberally interpreted article I, section 21to ensure “broad accessibility to the courts for resolving disputes.” Id. As time has passed, the Florida Constitution’s access to courts provision has been applied to everything from prisoners’ rights to the right to redress for injuries in tort. The access to courts provision provides a check on the powers of legislative and administrative bodies. “State constitutional remedy guarantees were adopted against a backdrop of centuries of concern about governmental interference with people’s ability to obtain justice in the courts.” 3 Litigating Tort Cases § 29:15. Throughout Florida’s history, the legislature enacted laws infringing on citizens’ access to the courts, and over time the Florida Supreme Court came to develop a test to determine whether such legislative action could be held constitutional.

The primary purpose of this discussion is to explain Florida’s constitutional right of access to the court, and how the courts handle when the legislature infringes on the right. In particular, tort reform measures have placed significant limitations on an injured claimant’s constitutional right to access the courts. Under Florida’s current framework of laws dealing with medical malpractice lawsuits, it is evident that a claimant’s right to access the courts has been infringed upon. Powerful stakeholders in the “tort reform” battle have many competing interests constantly clashing with each other. Although the focus should be on the patient, and is often claimed to be when a particular stakeholder crusades for a cause, other less altruistic motives also appear to be a driving force behind action taken to limit damage awards.

This discussion will also illustrate and explain the various constitutional issues arising from liability “caps” on noneconomic damages in medical malpractice lawsuits. Beyond the justifications for or against enacting such legislation, compelling public policy reasons exist as to why medical malpractice liability caps should be held invalid by the courts. Although the laws in place may allow for less burdensome litigation for injured parties with small claims, the people who are injured most by medical negligence pay the price. Finally, action limiting attorney fees, while on its face appearing to benefit a potential party or cause, can also have adverse consequences on a party’s ability to access the courts.

II.         Access to the Courts and the Kluger Test

Embodying the principles of Florida’s Constitution and case precedent, the Florida Supreme Court’s decision in Kluger v. White, 281 So.2d 1 (Fla. 1973), is “[t]he seminal case in a constitutional challenge to the right of access to courts.” Univ. of Miami v. Echarte, 618 So.2d 189, 193 (Fla. 1993). Kluger’s holding articulates the modern test for whether a statute violates the constitutionally protected rights for citizens to access the courts. The Florida Supreme Court has held:

[W]here a right of access to the courts for redress for a particular injury has been provided by statutory law predating the adoption of the Declaration of Rights of the Constitution of the State of Florida, or where such right has become a part of the common law of the State pursuant to Fla.Stat. s 2.01, F.S.A., the Legislature is without power to abolish such a right without providing a reasonable alternative to Personal injury lawprotect the rights of the people of the State to redress for injuries, unless the Legislature can show an overpowering public necessity for the abolishment of such right, and no alternative method of meeting such public necessity can be shown.

Kluger v. White, 281 So.2d 1, 4 (Fla. 1973). For legislative action to pass an access to the courts constitutional challenge, it must satisfy the Kluger test.

Specifically, in Kluger the issue was whether the legislature could abolish a common law or statutory right of action in existence prior to the adoption of the Florida Constitution in 1968 without providing an adequate alternative. Id. There, the plaintiff’s vehicle was damaged in a car accident caused by the negligence of the other party. Id. at 2. But, the legislature had passed a statute in 1971 essentially barring tort actions for property damage from car accidents when an automobile owner did not carry property damage insurance and suffered damages of $550 or less. Id. Because the plaintiff’s vehicle was only worth $250, and the plaintiff did not carry their own property damage insurance, they fell within the class of those barred from bringing a tort action. Id. at 3. The plaintiff challenged the statute on the grounds that abolishing a cause of action in tort without providing any other means for redress violated the access to courts provision of the Florida Constitution. Id.

For the first time, the Florida Supreme Court specifically considered whether the legislature had the power to abolish an existing remedy without providing alternative means for an injured party to seek proper redress. Id. at 3. Following previous Florida Supreme Court decisions, the court reiterated that the “Declaration of Rights of the Constitution of the State of Florida does apply to State government and the Legislature.” Kluger v. White, 281 So.2d 1, 4 (Fla. 1973) (citing Spafford v. Brevard County, 110 So. 451 (Fla. 1926)). Thus, the legislature is not exempt from abiding by the Florida Constitution, and constitutional guarantees such as access to the courts are protected from legislative action that offends such constitutional rights. Furthermore, the Court acknowledged that a tort law cause of action existed prior to 1968 for damage resulting from automobile negligence. Kluger, 281 So.2d at 4. Therefore, because a common law right to sue for the particular injury caused was abolished by the statute in question, and since the legislature is not shielded from adhering to the protections of the Florida Constitution, the court had to consider whether the legislature had the power to pass the statute in question. Id.

The defendant argued that the rule expressed by the Court did not comport with previous rulings on similar legislative actions. Id. To support their theory, the defendant raises, among other examples, the issue of workers’ compensation rights. Id. However, the court rejects the defendant’s argument and differentiates the workers’ compensation laws from the type at issue here. Id. With the workers’ compensation system, the legislature abolished the employee’s right to sue an employer in tort for a workplace injury, “but provided adequate, sufficient, and even preferable safeguards for an employee who is injured on the job.” Id. So, the employee did lose their right to sue an employer, but in return benefited from a system being put in place to facilitate timely receipt of benefits for an injured employee. Thus, the workers compensation laws provided a tradeoff to the benefit of the employee. Therefore, the statute satisfied the first prong of the Kluger test because it provided a reasonable alternative to protect the rights of injured employees. Id.

Here, the legislature neither provided a reasonable alternative for the plaintiff to seek redress for their injuries nor demonstrated a public necessity requiring the total abolition of the right to sue in tort. Id. at 5. As the facts of this case illustrate, the plaintiff is in a position where they cannot seek proper redress for injuries caused to them through the negligence of another. Id. If the legislature had required the plaintiff to carry mandatory property damage insurance, it is possible that a reasonable alternative could have existed. Id. But, without showing any public necessity or providing any other means of adequate protection, the legislature lacked the power to abolish the common law right of action to sue for automobile negligence. Id. Therefore, the statute in question was held to be an unconstitutional infringement on the plaintiff’s right to access the courts. Id.

III.         Tort Reform and Florida Jurisprudence Dealing with Medical Malpractice Claims

After Kluger, tort reform efforts over the years have resulted in laws limiting liability in medical malpractice lawsuits. A prime example of legislative action infringing on rights guaranteed under article 1, Doctor Clearwatersection 21 of the Florida Constitution is the legislature limiting liability in medical negligence actions. As evidenced in the cases below, the Kluger test has been used as a barometer to determine whether such legislative actions are constitutional. Primarily, the legislature has attempted to limit liability in medical malpractice lawsuits by enacting statutory “caps” on noneconomic damages to injured plaintiffs. Over time, these “caps” have evolved from only being applied in limited circumstances, into now a full blown limitation on a plaintiff’s ability to seek proper redress in the courts for their injuries.

  1. The 1986 Tort Reform and Insurance Act

The legislature enacted the 1986 Tort Reform and Insurance Act in response to a perceived crisis found to have existed in the commercial liability insurance market. Smith v. Dep’t of Ins., 507 So.2d 1080, 1084 (Fla. 1987). In particular, there was a public concern that commercial liability insurance was becoming both unaffordable and unavailable. Id. at 1095. As a result, the legislature created and commissioned the Academic Task Force to review the insurance industry and tort system and make findings to the legislature. Univ. of Miami v. Echarte, 618 So.2d 189, 191 (Fla. 1993). Those findings, and subsequently the laws passed by the legislature, are the foundation for Florida’s modern system for limiting liability in medical malpractice suits.

The Florida Supreme Court first examined the constitutionality of provisions of the 1986 Tort Reform and Insurance Act in Smith, 507 So.2d at 1080. After the act was passed into law, both trial lawyer and insurance interests challenged its constitutionality. Id. at 1083. In particular, the trial lawyers challenged the validity of the $450,000 limitation on noneconomic damages in medical malpractice lawsuits. The trial lawyers argued that capping noneconomic damages unconstitutionally denies claimants access to the courts under article 1, section 21 of the Florida Constitution. Id. at 1087.

In response, the appellee argued that the legislature did not abolish the cause of action to sue in tort for medical negligence, but that it only limited the amount of damages that could be recovered. Id. at 1088. Because a plaintiff was still able to bring suit, the appellee argued that the plaintiff had not been denied the right to access the courts. Id. But, the court rejected that argument and said that access to the courts must be read in conjunction with the constitutional right to trial by jury, guaranteed under article 1, section 22 of the Florida Constitution. Id. By arbitrarily capping noneconomic damages, the court found that the plaintiff is not getting the benefit of either constitutional right. Id. at 1088-89.

First, “[a] plaintiff who receives a jury verdict for, e.g., $1,000,000, has not received a constitutional redress of injuries if the legislature statutorily, and arbitrarily, caps the recovery at $450,000. Id. at 1088. Furthermore, if a jury finds that the proper redress for a plaintiff’s injuries is a particular amount, and that amount is then arbitrarily capped and reduced, the plaintiff is not receiving the constitutional benefit of a jury trial. Id. at 1088-89. Finally, the court expresses concern that accepting the appellee’s reasoning would mean that the legislature could limit recovery to “even $1” and not be totally abolishing the right for a plaintiff to sue. Id. at 1089. As the Court aptly states, “There are political systems where constitutional rights are subordinated to the power of the executive or legislative branches, but ours is not such a system.” Id.

Having determined that the $450,000 cap on noneconomic damages infringes on a plaintiff’s constitutional right to access the courts, the court applies the Kluger test to determine whether the limit should nonetheless be held constitutional under one of the Kluger exceptions. Id. at 1088. Under the first prong of the Kluger test, the court determined that the legislature provided no alternative remedy or commensurate benefit to the plaintiff in imposing a $450,000 cap on noneconomic damages. Id. In the court’s view, the cap’s benefits were only in favor of potential defendants. Id. Furthermore, the court stated that any benefit to a potential plaintiff was speculative, and that the court could not interfere with a constitutional right under such circumstances. Id. at 1089. Finally, the court mentioned that no argument was ever raised that the legislature passed the $450,000 cap “based on an overpowering public necessity for the abolishment of such right, and no alternative method of meeting such public necessity can be shown.” Smith, 507 So.2d at 1089 (quoting Kluger, 281 So.2d at 4). Therefore, because neither of the Kluger exceptions was satisfied, the Court held the $450,000 cap on noneconomic damages unconstitutional. Id. at 1095.

The Smith Court’s decision reflects the view that a universal cap on noneconomic damages in malpractice lawsuits benefits only the defendant, in that a patient or claimant is unlikely to be negligent. Id. at 1088. Smith’s holding demonstrates the court’s desire to protect the constitutional right for all injured claimants to access the courts and seek proper redress. Here, the legislature attempted to limit damages awarded to those claimants with the highest dollar value to their injuries. Id. In this situation, the court was unwilling to give the legislature the power to take away a severely injured party’s right to have his day in court based only on justifications it found to be speculative. Id. As later cases will demonstrate, the court became more deferential to the legislature as time passed.

  1. Voluntary Arbitration

After the Florida Supreme Court held the $450,000 cap on noneconomic damages unconstitutional in 1987, the legislature continued to pursue ways to address the perceived crisis in liability insurance rates, specifically in the context of medical malpractice lawsuits. Univ. of Miami v. Echarte, 618 So.2d 189, 191 (Fla. 1993). Several significant findings were made by the legislature. Id. First, the Task Force found that Picture of a brain injury in a medical malpractice case.the primary reason medical malpractice premiums had increased dramatically was the large increase in loss payments, “and not excessive insurance company profits nor the insurance industry underwriting cycle.” Id. Specifically, the large increase in loss payments was primarily due to the size of paid claims, as the amount of claims against physicians had not significantly increased. Id. Furthermore, the Task Force found that defending a malpractice claim had increased at a seventeen percent yearly rate for the past eleven years. Id. In addition, “attorneys’ fees and other litigation costs were found to represent approximately 40 percent of the total costs of insurance companies,” while tort victims were only receiving about 43 percent “of the insurers total costs.” Id.

To combat these problems, the Task Force recommended a comprehensive scheme “to stabilize and reduce medical liability premiums.” Id. First, the Task Force recommended that parties conduct a reasonable investigation before allowing a malpractice claim to move forward, the goal being to eliminate frivolous lawsuits and defenses. Id. In addition, the Task Force recommended an arbitration system be put in place that provided “incentives for parties to arbitrate medical malpractice claims in order to reduce litigation expenses.” Id. Presumably, the comprehensive scheme was meant to create a more efficient system for resolving disputes between tort victims and negligent parties.

Relying on the Task Force, the legislature adopted its findings into law through section 766.201, Florida Statutes (Supp. 1988). Id. The legislature’s plan under section 766.201 contained two separate components, presuit investigation and voluntary arbitration. “Sections 766.203-.206 set out the presuit investigation procedure that both the claimant and defendant must follow before a medical negligence claim may be brought in court.” Id. at 192. Before a plaintiff can provide notice to a defendant of intent to bring a malpractice suit, a plaintiff must conduct an extensive investigation that includes demonstrating reasonable grounds that a defendant’s negligence caused the claimant’s injury, and furthermore must provide an expert opinion to corroborate such a claim. Fla. Stat. Ann. § 766.203(2) (2004). In response to a plaintiff’s corroborated malpractice claim, a defendant must engage in a similar process to establish any viable defenses it has against a plaintiff’s claim. Fla. Stat. Ann. § 766.203(3) (2004).

If the presuit investigation establishes preliminary reasonable grounds to move forward with a claim, either party may offer to have damages determined by an arbitration panel. Fla. Stat. Ann. § 766.207(2) (2003). Under section 766.207, an agreement between the parties binds both parties to the arbitration panel’s determination and precludes a plaintiff from any other remedy against a participating defendant. Echarte, 618 So.2d at 193. If both parties agree to move forward with arbitration, the plaintiff’s damages are limited to up to $250,000 per incident, but are reduced on a percentage basis based on the arbitration panel’s determination of the plaintiff’s loss of capacity to enjoy life. Fla. Stat. Ann. § 766.207(7) (2003). In the event that a claimant rejects a defendant’s offer to arbitrate, that claimant may proceed to trial but noneconomic damages are capped at $350,000 under section 766.209(4), Florida Statutes (2004).

Five years after the legislature adopted binding arbitration, the Florida Supreme Court in Echarte, 618 So.2d at 190, decided whether capping the amount of noneconomic monetary damages a plaintiff can recover under sections 766.207 and 766.209 violates a plaintiff’s right to access the courts. In Echarte, a minor child’s parents had given the defendant hospital notice of their intent to file a medical malpractice lawsuit over injuries to their daughter. Id. The hospital responded by requesting that the parents agree to have damages determined by a medical negligence arbitration panel under section 766.207(2). Id. At that point, the claimants file for a declaratory judgment as to whether sections 766.207 and 766.209 were constitutional. Id.

The trial court ruled in favor of the Echartes and held that the statutes violated multiple constitutional provisions, including equal protection guarantees, substantive due process rights, right to trial by jury, an improper taking without compensation and right of access to the courts, among others. Id. at 191. Afterwards, the district court affirmed but expressly limited its opinion to the access to courts issue. Id. Significantly, the Florida Supreme Court also limited its opinion to the access to courts challenge, but stated that “we have also considered the other constitutional claims and hold that the statutes do not violate” any of the other constitutional provisions raised by the trial court. Id. at 191. As the history of litigation and uncertainty surrounding the statute in questions illustrate, this superficial analysis did little to settle the constitutional arguments in question.

Like other cases dealing with a constitutional challenge to the right to access the courts, the court applies the Kluger test to determine whether the arbitration statutes impermissibly infringed on a plaintiff’s right to fully recover noneconomic damages for their injuries. Id. at 194. The issue under the first exception of the Kluger test was whether the statutes provided a commensurate benefit for an injured party losing their right to fully recover noneconomic damages. Id. Here, the court found several reasons why the statutes did provide such a commensurate benefit. First, the parties agreeing to arbitration results in expedited resolution of cases without the inherent risk of litigation, or the burden of proving fault in a civil lawsuit. Id. Next, “the claimant benefits from the requirement that a defendant quickly determine the merit of any defenses and the extent of its liability.” Id. Furthermore, a claimant saves litigations costs, including attorneys’ fees and expert witness fees. Id. Finally, the claimant’s ability to collect damages is greatly improved by the statutes mandating joint and several liability of defendants, prompt payment of damages, and interest and penalties for a defendant’s failure to pay in a timely fashion. Id.

In addition, the court found that the arbitration statutes also satisfied the second exception of the Kluger test because there was an overpowering public necessity to ensure liability insurance, and no alternative to accomplish that goal. Id. at 195. In determining whether an overpowering public necessity existed, the court stated that the “[l]egislature has the final word on declarations on public policy, and the courts are bound to give great weight to legislative determinations of facts.” Id. at 196.The court cites the legislature’s findings adopted in section 766.201(1) (a) that sharply rising medical malpractice insurance rates were leading to “increased unavailability of malpractice insurance for physicians.” Id. “Because the Legislature’s factual and policy findings are presumed correct and there has been no showing that the findings … are clearly erroneous … the Legislature has shown that an “overpowering public necessity” exists.” Id. at 196-197.

Next, the question under the second prong of Kluger was whether an alternative method existed to alleviate the malpractice insurance crisis. Id. at 197. The Echartes argued that the Task Force had found that alternative methods for reducing malpractice insurance rates existed, for example strengthening regulation and professional discipline of doctors who had committed malpractice frequently. Id. But, to determine whether an alternative means existed, the court stated that “the plan as a whole, rather than focusing on one specific part of the plan, must be considered.” Id. Based on the Task Force’s findings the court found that it was “clear that both the arbitration statute, with its conditional limits on recovery of noneconomic damages, and the strengthened regulation of the medical profession are necessary to meet the medical malpractice insurance crisis.” Id. Therefore, because there was no alternative or less onerous means for managing the insurance crisis, an overpowering public necessity, the statutes satisfied the second prong of the Kluger test. Id.

In conclusion, the court’s finding that the voluntary arbitration statutes provide a commensurate benefit to injured claimants is the crux of the public policy debate. The issue is whether those claimants who are most severely injured should have their damages arbitrarily capped to facilitate a system that benefits claimants with small claims. Although the court stresses their deference to legislative findings, something seems amiss for the court to determine that the voluntary arbitration statutes benefit injured claimants without once mentioning the effect it has on those whose damage awards will be arbitrarily reduced. Is there no merit to the argument that a claimant whose damage award is arbitrarily capped in fact gains no commensurate benefit from the liability caps? Surely, those most severely injured by medical malpractice are part of that same group of injured claimants which voluntary arbitration provides such a benefit for.

  1. Current State of Noneconomic Damage Caps

In 2003, the legislature went a step further and enacted broad limitations on noneconomic damages, regardless of whether a defendant initiated voluntary arbitration or not. Under section 766.118(2), Florida Statutes (2011), practitioners such as doctors and hospitals are generally individually liable for noneconomic damages of no more than $500,000 in the aggregate. If a severe injury, such as death or permanent coma occurs, a claimant may be able to collect up to $1,000,000. Fla. Stat. Ann. § 766.118(2) (2011). In passing section 766.118, the legislature again adopted an across-the-board cap on noneconomic damages, limiting such awards without providing any reasonable alternative or commensurate benefit for an individual plaintiff seeking redress for their injuries. But this time, after learning their lesson from the $450,000 cap held unconstitutional in Smith, 507 So.2d at 1089, the legislature did “find” that there was an overwhelming public necessity, and no other way to deal with the crisis. Estate of McCall v. United States, 663 F.Supp.2d 1276, 1302 (N.D. Fla. 2009) aff’d in part, question certified sub nom. Estate of McCall ex rel. McCall v. United States, 642 F.3d 944 (11th Cir. 2011).

As of yet, neither voluntary arbitration nor the across-the-board cap on noneconomic damages under section 766.118 have been found to violate the access to courts provision of the Florida Constitution. But, both continue to be attacked as unconstitutional. In 2010, the constitutionality of voluntary arbitration was certified to the Florida Supreme Court in Parham v. Florida Health Sciences Ctr., Inc., 35 So.3d 920, 929 (Fla. 2d DCA 2010) review dismissed, 38 So.3d 771 (Fla. 2010). There, the appellant made two novel arguments not previously considered by the court. First, the appellant argued that legislative findings should not last forever, and that the legislature should have to show that a valid medical malpractice insurance crisis still exists. Id. at 925. Next, the appellant argued that the $250,000 cap in section 766.207, as well as the $350,000 cap in section 766.209, were established in 1988 and have never been adjusted for inflation. Id. at 925-926. Based on the appellant’s arguments, the court certified whether the $350,000 noneconomic damage cap in section 766.209(4) remained constitutional in light of the fact that the legislature had never adjusted the amount of the cap, nor had they ever been asked to confirm that the “overpowering public necessity” that justified the cap in 1988 still existed in 2009. Id. at 925. Unfortunately, the case settled while the certified question was waiting for review by the Florida Supreme Court. Thus, the issues raised by the appellant are still up in the air.

Interestingly, this case settled after making it all the way to the Florida Supreme Court. One could wonder as to why the defendant was motivated to settle after successful decisions at trial and on appeal. Arguably, stakeholders interested in preserving voluntary arbitration in its current form saw merit in the appellant’s argument and decided it was better to settle the case than have the Florida Supreme Court examine such issues. If so, this provides an excellent example of the interplay of various stakeholders involved in a medical malpractice lawsuit. On one hand, the appellant vigorously argued that the legislature should have to justify to the public that the $350,000 cap was still “essential to overcome the public’s right of access to courts. Id, at 925 (emphasis added). But, as an individual, the appellant apparently made the decision that it was in their best interest to settle their case. On the other hand, the defendant hospital and physicians apparently determined that it was in their best interest to settle with the appellant instead of face further litigation. Unfortunately, conflicting interests pull tort reform measures back and forth like a game of tug-of-war, while specific injured parties are left powerless, at the mercy of who has the stronger argument on any particular reform campaign.

As to section 766.118, the Florida Supreme Court has yet to make any determination as to the validity of the statute. But, in May 2011, several questions as to the constitutionality of section 766.118 were certified to the Florida Supreme Court by the 11th Circuit in Estate of McCall ex rel. McCall v. United States, 642 F.3d 944 (11th Cir. 2011). The court acknowledged that the application of the Florida Constitution to noneconomic damage caps remains “unsettled” and asked the Florida Supreme Court to determine whether section 766.118 violated the right of access to the courts under article I, section 21 of the Florida Constitution. Id. at 952. Furthermore, the court certified to the Florida Supreme Court whether the statutory cap on noneconomic damages violates the right to trial by jury, or the separation of powers guaranteed by the Florida Constitution. Id. at 952-953. With these constitutional issues before the Florida Supreme Court, it remains to be seen what the future of noneconomic damage caps in Florida will be.

Regardless, the issues surrounding tort reform are not likely to be settled any time soon. Although the court will rule on the constitutionality of section 766.118 in the near future, the validity of voluntary arbitration is not before the court. Depending on whether voluntary arbitration is invoked before trial or not determines exactly which statutes a claimant will challenge as unconstitutional. If voluntary arbitration is offered by a defendant, a claimant is going to attack sections 766.207 and 766.209. If not, a claimant whose damage award is arbitrarily capped after trial will challenge the constitutionality of section 766.118. Furthermore, as the insurance market and political climate changes, so will the stakeholders and interests. History suggests that tort reform efforts are here to stay and that powerful stakeholders other than the patient will continue to shape the future of medical malpractice litigation in Florida.

IV.         Limiting Attorney Fees

Limitations on attorney fees have been incorporated into Florida’s Constitution in several areas of the law, including workers’ compensation, medical malpractice, and death penalty cases. In each situation, justifications for such limitations appear to be based primarily on public policy arguments. In death penalty cases, it is vital that a criminal defendant’s right to representation be protected, especially when he is facing death. With workers’ compensation laws, the goal is to protect an injured employee’s limited benefit award. For medical malpractice suits, the purpose of limiting attorney fees is to allow the plaintiff to collect more of their damage award. Case law illustrates how limitations on attorney fees in each of these situations are protected by the Florida Constitution.

  1. Workers’ Compensation

First, workers’ compensation laws are in place to create a simple, inexpensive method for injured employees to recover benefits from their employer, placing the burden of supporting the injured employee upon the employer itself. Samaha v. State, 389 So.2d 639, 640 (Fla. 1980) (quoting Port Everglades Terminal Co. v. Canty, 120 So.2d 596 (Fla.1960)). Allowing an attorney to collect a large portion of an injured employee’s benefits would interfere with the public policy behind the enactment of workers’ compensation laws, facilitating “necessary minimum living funds” for an injured employee and shifting the responsibility of caring for that person away from society generally. Id. Therefore, the state has a legitimate interest in regulating attorney fees to protect the claimant’s benefits. Id. As the court noted, the United States Supreme Court found similar workers compensation laws to be a valid exercise of a state’s police power. Samaha, 389 So.2d at 641 (citing Yeiser v. Dysart, 267 U.S. 540 (1925)).


  1. Death Penalty Cases

In death penalty cases, constitutional issues arise when limits on attorney fees in death penalty cases interfere with “the court’s inherent power to ensure the adequate representation of the criminally accused.” Makemson v. Martin County, 491 So.2d 1109, 1112 (Fla. 1986). Facially, the right for the legislature to “appropriate funds for public purposes and resolve questions of compensation” is grounded in article III, section 12 of the Florida Constitution. Id. But, in “unusual or extraordinary circumstances” a statute limiting attorney fees in criminal cases “interferes with the sixth amendment right to counsel,” a “sensitive area of judicial concern,” and “therefore violates article V, section 1, and article II, section 3 of the Florida Constitution.” Id. When inadequate compensation stops attorneys from taking death penalty cases, “the availability of effective counsel is therefore called into question in those cases when it is needed most.” Id.

  1. Medical Malpractice Lawsuits

Although there may very well be legitimate, even admirable goals in imposing limitations on attorney fees, such action can also create problems overlooked when laws were enacted. Similar to how statutes limiting attorney fees in criminal cases can lead to unavailability of counsel for defendants, limiting contingency fees in medical malpractice lawsuits can have an analogous practical effect for claimants. Contingency fees play a large role in a claimant’s ability to access the courts because such fees allow plaintiffs to bring lawsuits they otherwise would not be able to afford to litigate. Michael Cristoforo, Medical-Malpractice Contingency-Fee Caps: A Big Victory for Florida’s Voters and Tort Reformers? Maybe Not., 62 U. Miami L. Rev. 913, 919 (2008). Restricting contingency fees can limit a claimant’s ability to find adequate counsel to represent them because “the prospective damages and resulting attorney’s fees will not justify the time and expense associated with the litigation.” Id. at 920. Between the noneconomic damage caps and limit on contingency fees, lawyers are more apt to take cases where high economic damages can be shown. Id. Such heavy restrictions would appear to particularly harm those who cannot demonstrate large economic losses, such as “the poor, senior citizens, unemployed women or stay-at-home moms, students, and children.” Id. at 921.

In 2004, Florida’s Constitution was amended through the citizen initiative process, resulting in Amendment Three being adopted to limit contingency fees in medical malpractice actions. Eric S. Matthew, A New Prescription: How A Thorough Diagnosis of the “Medical Malpractice” Amendments Reveals Potential Cures for Florida’s Ailing Citizen Initiative Process, 14 U. Miami Bus. L. Rev. 331, 333 (2006). Under article I, section 26 of the Florida Constitution, in any medical malpractice lawsuit involving a contingency fee, an attorney can receive no more than 30% of the first $250,000 awarded to a claimant, and only 10% of all damages exceeding $250,000. Fla. Const. art. I, § 26. Significantly, article I, section 26 does not limit the amount that the defendant may pay an attorney to defend against a malpractice claim. On its face, the constitutional amendment protects the claimant’s ability to obtain proper relief for their injuries. Yet, the practical effect is that limiting attorney fees is just another hoop for a claimant to jump through in order to get into the courthouse and seek compensation for their injuries.

The citizen initiative process allows special interest groups to directly amend the Florida Constitution without going through the legislative process. Id. at 332. In essence, it eliminates the system of government checks and balances, putting the power to amend the Florida Constitution directly in the hands of the voters. Id. Although various stakeholders have an unquestioned influence on legislative enactments such as noneconomic damage caps, the citizen initiative process allows those same special interest groups to influence the general public directly, and with potentially unlimited resources. In fact, the battle between trial lawyers and medical interests over getting Amendment Three on the ballot and passed into law has been estimated to cost in excess of $30 million. Mary Coombs, How Not to Do Medical Malpractice Reform: A Florida Case Study, 18 Health Matrix 373, 386 (2008). Amendment Three was entitled “Claimant’s Right to Fair Compensation.” Id. To the average voter, the message that the injured party should get the majority of their damage award was easy for the Florida Medical Association and others to make. Id. at 386-387. For opponents of Amendment Three, it was much more difficult to convince the voters that limiting contingency fees could actually keep claimants out of court, since the amendment on its face would seem to only impact claimants positively. Id.

Ultimately, what has ended up happening is that claimants seeking counsel in medical malpractice lawsuits have waived their constitutional rights under article I, section 26 in order to obtain counsel. Id. at 390. As interpreted by the Florida Supreme Court, a literal read of article I, section 26 creates a constitutional right meant to benefit a plaintiff in a malpractice action, and like any other fundamental constitutional right it can be waived. Id. So, despite the valuable time and resources expended in fighting over Amendment Three, its practical effect has been negligible. Id. at 390-91. Furthermore, the client’s freedom to contract with an attorney to agree on fair compensation for adequate representation should not be easily disturbed. An injured client’s medical malpractice claim can be a significant event in their life, and a claimant should not be limited in deciding the quality of representation they desire based on statutory limitations in how much they can offer an attorney. But, as the history of tort reform legislation in our state and beyond has demonstrated, the law is never settled and surely there will be a continued effort to see contingency fees limited in order to reduce and eliminate malpractice damage awards.

V.         Conclusion

The right for Florida’s citizens to access the courts is guaranteed by the Florida Constitution and has been protected by the courts. As case law suggests, the courts give great respect to such a fundamental right. But legislative action which infringes on the right to access the courts is not per se invalid. Florida courts use the Kluger test to determine whether laws infringing on the right to access the courts nonetheless should be allowed.

Specifically, in medical malpractice suites, tort reform measures may not be in the best interest of a potential plaintiff. By looking at the interplay between the tort reform measures that have been enacted, it is clear that strong burdens are placed upon a plaintiff trying to bring a medical malpractice lawsuit. Arbitrarily capped noneconomic damage awards and limited contingency fees for attorneys provide significant obstacles for a potential claimant attempting to bring a medical malpractice lawsuit. Limited damage awards and attorney fees can create a situation where it is not worth it for either the patient or an attorney to pursue a malpractice claim, even when liability could easily be demonstrated.

The courts have continued to defer to the legislature on issues of tort reform related to medical malpractice lawsuits. However, the blame does not belong solely with the courts. The issue is much deeper than that. Public policy arguments are, by the design of our constitution, left up to the legislature and the democratic process. Unfortunately, unlike the courts, the legislature is burdened by special interest groups whose political clout is undeniable. As the policy debate continues, stakeholders including trial lawyers, medical associations, doctors, and insurers will be the ones who ultimately decide how to best deal with the undoubtedly complicated issues surrounding medical malpractice.

Our current medical malpractice system effectively subsidizes smaller malpractice claims by limiting damage awards to those most severely injured. Essentially, the system in place imposes limitations that weed out malpractice claims, both valid and invalid, by placing significant burdens on claimants trying to bring suit. At the same time funds of those claimants whose noneconomic damage awards should be highest are reallocated to those with smaller claims, along with the various stakeholders involved. Although there are justifications and issues on both sides of the tort reform argument, I believe that ultimately severely injured parties have to pay too high a price in order to facilitate a speculative benefit to those with smaller claims.


Mark Perenich has been practicing law for over 30 years, he has invaluable experience when it comes to medical malpractice. If you believe that you have a malpractice claim call him today 727-386-9677

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