Advocating for the average person in the personal injury field

Advocating for the average person in the personal injury field

[Mark Perenich & the Perenich Caufield Avril Noyes team]

Apart from being a law firm that has fought for and represented victims in Florida, since past many decades, we are also a firm that believes in protecting the rights of the citizens of Florida wherever they are being neglected or harmed. There are various issues for which reforms are needed and we, not only as Lawyers but also as common citizens support them.

Bodily Injury Liability Protectioncar accident

It’s hard to believe but Florida is among the only two states in the country with no ‘Bodily Injury Liability Protection’. Currently financial responsibility that needs to be demonstrated by vehicle owners of private passenger cars is fulfilled by only two ‘Protections’, namely – Property damage liability protection & Personal Injury Protection. It is not required under law for a private passenger car owner to have Bodily injury liability protection i.e. if someone gets seriously injured due to their vehicle, the driver of the vehicle does not need to have Insurance for paying the compensation and other costs to the seriously injured victim.

We support the Financial Responsibility Legislation, which will make the present self-insurance requirements more secure and will require a private passenger car owner to have a minimum Bodily injury liability protection of $25,000 per person or $50,000 per incident. This legislation will help in reducing the insurance premiums paid by financially responsible car owners and will go on in ensuring that the taxpayers of Florida and the Trauma centers operating in the state of Florida save millions over the years.

Bad Faith Protection

When policyholders pay their premiums to insurance companies for liability policies, they are doing so to ensure that their business does not face a crisis or goes bankrupt if their business becomes liable to someone. Sometimes, the insurance companies fail to inform the policyholder regarding settlement in a case or simply refuse to accept reasonable settlements; basically they act in bad faith even though the laws in Florida require them to act in good faith to their policy holders.

We are against the bad faith that the Insurance companies demonstrate and also against the Insurance companies who do so. If the Insurance companies are allowed to evade their responsibility, it will possess a significant risk to businesses of Florida as businesses can face excess judgments because the Insurance companies didn’t do their Job properly or acted in bad faith.

Protection of Best Interest of Children Having Birth Related Neurological Injury

In 1988 Florida Legislature created NICA or (The Florida Birth-Related) Neurological Injury Compensation Association. It was created to provide benefits to children who had sustained a spinal cord or brain injury caused by mechanical injury or oxygen deprivation during labor, delivery, or in the immediate post-delivery period. The program was also created to avert an Insurance crisis being faced by Doctors and healthcare establishments practicing Obstetrics and as a mean to provide compensation on ‘no-fault’ basis to the class of children who suffered a significant Neurological Injury due to the reasons mentioned above and left the children “permanently and substantially mentally and physically impaired.”

The Florida Legislature had enacted Sections 766.301-766.316, Florida Statutes, to create NICA as a benefit program but today most of the executive staff and ‘board members’ in NICA are representatives from Healthcare and Insurance industries and not people from the affected families.

Needless to say, a conflict of interest exists between people who sit on NICA’s board and the people whose children suffer from birth related Neurological Injury, which can be seen from the numerous litigations in the past among the two parties who have now become ‘adversaries’.

We support the legislation that incorporates changes to the statues that govern NICA and make it a body that goes on to deliver on the promises it intended to and for which it was originally created.

Against the proposed curbs and limitations on Medical Payments

Doctor

A victim who has been injured has all the rights to seek the best medical care possible but a bill was filed in 2013 according to which in a trial a jury will assess and grant past and future medical expense in cases of wrongful death and personal injury.

We are against the bill as the provisions in it are already fulfilled, Sections 501.1(a) and (b), Florida Standard Jury Instructions, state “you should award claimant an amount of money that the greater weight of the evidence shows will fairly and adequately compensate him/her for his/her loss, injury or damage, including any damage claimant is reasonably certain to have/experience in the future…” and section 501.2(b) states that a jury is to award, “the reasonable value or expense of hospitalization and medical and nursing care and treatment necessarily or reasonably obtained by claimant in the past or to be so obtained in the future.”

The only thing this bill will do is increase the cost of litigations especially for the plaintiffs who will have to bear additional expenses to get properly compensated for the medical expenses they bore and/or will bear in future.

 Mark Perenich is a personal injury lawyer in Clearwater please call him if you would like to know more about your case 727-386-9677

How much does it cost to hire a Personal Injury Attorney (Clearwater Florida)

How much does it cost to hire a Personal Injury Attorney in Florida

 

An attorney or Law firm charge fees for the Legal services either on a per hour basis or Contingent fee basis, though some also charge a ‘fixed’ fees. Most of the attorneys or Law firms who handle personal injury, medical malpractice or workers compensation cases work on a Contingent fee basis.

 What is Contingent fee?

It is an arrangement between a client and the attorney (or law firm) who will be legally representing the client, in which the client agrees to pay a pre-decided fixed share (percentage) of damages awarded to the client if the result of the litigation is in favor of the client.

The Contingency fee agreement has to be signed by the attorney (or law firm) and the client they are going to represent, prior to taking up the case. The percentage of the recovery to be kept by the attorney (or law firm), the costs that will be deducted from the recovery and in what ways will they be deducted, all of this needs to be stated in the agreement.

Normally, no fee or expenses incurred in the suit is paid in advanced by the client, if the attorney (or law firm) works on contingent fee basis. (Some attorneys or law firms might charge for the costs associated with the case like medical reports, filing fee etc., even if working on contingent fee basis)

There are certain Rules of Conduct prescribed by the Florida Bar, which includes the rules for charging fees and costs for Legal services. The rules contain certain limitations that the Florid Bar imposes on charging Contingent fee in cases of Personal Injury, Medical Malpractice (keep in mind medical malpractice caps) and other tort cases.

Limitations

  • 33.33% of any recovery till $1 million – If the case is settled prior to filing of an answer or demand for appointment of arbitrators or if a lawsuit has already been filed, as late as the time till defense files an answer or makes a demand for appointment of arbitrators.
  • 40% of any recover till $1 million – If the case is settled after the lawsuit has been filed and the defense has filed an answer or makes a demand of appointment of arbitrators or, if neither has an answer been filed nor demand for appointment of arbitrators is made, the expiration of the time period provided for such action, through the entry of judgment. Keep in mind, that your attorney will ask for your approval when filing suit.
  • 30% of any recovery between $1-2million (In the first two scenarios) – If the case is settled, or a favorable verdict is reached in trial.
  • 20% of any recovery above $2 million (In the first two scenarios) – If the case is settled, or a favorable verdict is reached in trial.
  • 33.33% any recovery till $1 million, 20% of recovery between $1-2 million and 15% of  recovery above $2 million – If liability is admitted at the time of filing answers and the case goes on trial only for deciding on the damages.
  • 5% additional on any recovery– If the case is appealed / requirement of action for recovery of the Judgment / Post-Judgment Relief.

Charging fee above the standard is considered to be ‘excessive’. However, if a client wishes to pay a greater fee, they can approach the court before filing the case or during filing their case for removal of the fee limitation.

Additional Limitations for Medical Malpractice Cases

There are additional limitations placed on how much a Lawyer can charge for medical malpractice cases by Article I, section 26 of the Florida Constitution.

  • Victims of Medical Malpractice are entitled to no less than 70% of first $250,000 in damages ( excluding the costs )
  • Victims of Medical Malpractice are entitled to 90%  of all damages above $ 2,50,000 (excluding the costs)

If an attorney is representing a client of Medical Malpractice, he is bound by the rules of conduct to first furnish a copy of the constitution’s fee limitations, before taking up the case. In addition to this an attorney is required to inform the client that these limitations will be in effect, till the client waives the constitutional limitation of Medical Malpractice fee and the attorney should also advise the client that they can consult with other attorney(s) before waiving the right or can also ask for a hearing before a judge for explaining the waiver.

If the client opts for waiving the constitutional right, the client is entitled to receive a detailed waiver form from the attorney.

Fee Division

If a personal injury or property damage (resulting from wrongful conduct) case is being handled by two attorneys, then the attorney with primary responsibility is entitled to no less than 75% of the total fee while the attorney with secondary responsibility is entitled to no more than 25% of the total fee.  In a case where both the attorneys take equal responsibility of the case, the court will decide on how the fee will be split.

When a case of a client ends, an attorney is required to furnish itemized bill of the costs and expenses incurred in the particular case and if the case has been won then the fee too. The client needs to sign the bill statement along with all the attorneys who represented the client in the case.

Points to remember –

  • It is not always possible for a lawyer to give you a complete estimate while taking up your case.
  • The associated costs involved in a case are uncontrollable as they depend on a variety of factors.  Extra costs may be necessary to get your case settled or to trial.
  • Some attorneys charge a ‘retainer’ or ‘advance’  for costs involved even though they might be working on Contingent fee basis, these ‘retainer’ or ‘advance’ can be refundable or non-refundable.

When hiring an attorney you should first meet them and get to know how they work.  It is important to establish a relationship with them, because they will be taking case of an aspect of your life for a few months to years.  If you’d like to know more about attorneys fees, or if you have been involved in an car accident please call mark today 727-386-9677 or go to www.1forjustice.com

 

Medical Malpractice Caps: a Doctors Prospective

A doctor I know wrote me an email after my last blog entree concerning Florida’s medical malpractice caps.  I have known this doctor for years and I believe he brings up some strong and valid points.

The Supreme Court of Florida (Estate of Michelle Evette McCall, et al. vs United States of America) over ruled the medical malpractice cap on noneconomic damages on March 13, 2014.

The Court found that medical malpractice filings in Florida have decreased significantly by more than 60% since 2004.  Insurance companies have decreased their payouts for noneconomic damages by approximately 30%.
gavel minWhich at first seems like a victory for the (Florida Medical Association) FMA and medical community.  After all this was the legislation the FMA had all of its physicians come to Tallahassee in 2003 to support.  At the time the rhetoric was that Florida was in a crisis, physicians were leaving the state due to the price of medical malpractice premiums, and that insurance companies could no longer afford to pay for claims.  However, the court found this to be speculative and that the current caps on medical malpractice law is “transform(ed) what may have once been reasonable into arbitrary and irrational legislation” as the American Medical Colleges (AAMC) reflects 254.8 active physicians per 100,000 people in florida in 2010.  Furthermore, the insurance companies offering medical malpractice insurance in Florida  have cumulatively reported an increase in their net income of more than 4300 percent from 2003 to 2010.   The court stated that despite such impressive net income that the insurance industry has not passed the savings onto Florida physicians in the form of reduced malpractice insurance premiums.

Bottom line, we physician lobbied on behalf of the insurance companies based on speculation for legislation that resulted in a 4300% increase in net income for the malpractice insurance companies, and have received no benefit.  Way to go AMA and FMA!
Lets see the Florida physicians band together and lobby for fair rates of reimbursement… Lets not forget the insurance lobbyist will fight us on this.

I think I will send this to my professional friends.

 

Mark Perenich is a Medical Malpractice attorney in Clearwater

Florida Medical Malpractice Caps Ruled UNCONSTITUTIONAL Florida Supreme Court

 Florida Medical Malpractice Caps Overturned

(limited to wrongful death cases)

Today the Florida Supreme Court handed down a 5-2 decision (five justices concurred, and two justices dissenting) as to the constitutionality of the medical malpractice caps in the state of Florida. The opinion was written by Justice Fred Lewis, he was able to sift through the legal rhetoric and conclude “has the effect of saving a modest amount for many by imposing devastating costs on a few.”

Facts of the case

The case Estate of Michelle Evette McCall, et al. v. United State of America has a very sad set of facts, as do most medical malpractice cases. The case was brought on the behalf of the family of Michelle McCall, where she received prenatal care from an Air Force hospital 2005. In 2006 she went to Fort Walton Beach medical Center as she was diagnosed with preeclampsia and high blood pressure as a result the doctors induced delivery. This McCall gave birth to a son and then died days later due to medical malpractice lawyercomplications resulting from the severe bleeding that she experienced following the procedure. Although Michelle McCall’s family urged doctors that something was wrong, due to how much blood she was losing; in the end Ms. Mcall was denied proper care and as a result died in the hands of the hospital and doctors of Fort Walton Beach medical Center.

Legal/Procedural History

Ms. McCall’s family filed suit against the federal government under the Federal tort claims act because it was a military fit family being treated by Air Force medical staff.  The 11th circuit Court of Appeals agreed with the trial court and that the survivors should receive $2 million in non-economic damages (Pain and suffering caused by the tortfeasor; economic damages would be e.g. corrective surgery, or therapy. Think along the lines of pain-and-suffering for a lost caused by the defendant’s) the 11th circuit Court of Appeals in Atlanta opined that the medical malpractice caps are in contravention to the Florida Constitution, and the Federal court certified a question to the Florida Supreme Court.

Political Background

The Florida medical malpractice caps were pushed by Gov. Jeb Bush with a supportive doctors, hospitals, and most importantly insurance companies who wanted a  $250,000 on noneconomic damage; the bill that came to pass created a structure where the $250,000 Would only be imposed if the plaintiff agreed to arbitration.( If the plaintiff did not agree to arbitration that there’d be a $350,000 noneconomic damages cap up to 1 million dollars in specific cases depending on injury). The implications of this bill were not only widespread political realm, but also had a serious impact on those that experienced serious and traumatic loss as a result of the negligence of doctors and hospitals alike.

The Florida Supreme Court opined that the Florida legislature’s basis for this law have little to no basis in reality. When the bill was being passed it was alleged by the lawmakers, that Florida is in the midst of a severe medical help practice crisis.

Justice Lewis commented:

“Our consideration of the factors and circumstances involved demonstrates that the conclusions reached by the Florida Legislature as to the existence of a medical malpractice crisis are not fully supported by available data. Instead, the alleged interest of health care being unavailable is completely undermined by authoritative government reports.”

 Comment:

This opinion is a big victory for those that have been injured or killed as a result of medical malpractice. Those who have been injured can now strikes fear in those that defendants that have endless money to defend a case, as plaintiffs can now impose serious damage on an institution that once thought it would escape litigation scot-free, or at worst a slap on the wrist. This opinion from Florida Supreme Court allows normal people to now half proper access to the American civil justice system, where they can be equal opponent to the biggest healthcare organization or hospital.

 

The opinion and the Florida medical malpractice caps statute are below

 Supreme Court of Florida

____________

No. SC11-1148

____________

ESTATE OF MICHELLE EVETTE MCCALL, et al.,

Petitioners,

vs.

UNITED STATES OF AMERICA,

Respondent.

[March 13, 2014]

LEWIS, J.

This case is before the Court to answer four questions of Florida law certified by the United States Court of Appeals for the Eleventh Circuit that are determinative of a cause pending in that court and for which there appears to be no controlling precedent. We have jurisdiction. Art. V, § 3(b)(6), Fla. Const. In Estate of McCall v. United States, 642 F.3d 944 (11th Cir. 2011), the Eleventh Circuit certified the following questions:

(1) DOES THE STATUTORY CAP ON NONECONOMIC DAMAGES, FLA. STAT. § 766.118, VIOLATE THE RIGHT TO EQUAL PROTECTION UNDER ARTICLE I, SECTION 2 OF THE FLORIDA CONSTITUTION?- 2 –

(2) DOES THE STATUTORY CAP ON NONECONOMIC DAMAGES, FLA. STAT. § 766.118, VIOLATE THE RIGHT OF ACCESS TO THE COURTS UNDER ARTICLE I, SECTION 21 OF THE FLORIDA CONSTITUTION?

(3) DOES THE STATUTORY CAP ON NONECONOMIC DAMAGES, FLA. STAT. § 766.118, VIOLATE THE RIGHT TO TRIAL BY JURY UNDER ARTICLE I, SECTION 22 OF THE FLORIDA CONSTITUTION?

(4) DOES THE STATUTORY CAP ON NONECONOMIC DAMAGES, FLA. STAT. § 766.118, VIOLATE THE SEPARATION OF POWERS GUARANTEED BY ARTICLE II, SECTION 3 AND ARTICLE V, SECTION 1 OF THE FLORIDA CONSTITUTION?

Id. at 952-53. Because this case involves a wrongful death, we rephrase the first certified question as follows:

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?

As explained below, we answer the first rephrased certified question in the affirmative and hold that the cap on wrongful death noneconomic damages provided in section 766.118, Florida Statutes, violates the Equal Protection Clause of the Florida Constitution. We find it unnecessary to answer the remaining certified questions because Florida’s Wrongful Death Act is of statutory origin, and the present case is under the Federal Tort Claims Act and its procedures.

FACTS AND PROCEDURAL HISTORY

In its opinion, the Eleventh Circuit detailed the facts regarding the legal – 3 –

action filed by the estate of Michelle McCall, Ms. McCall’s parents, and the father of Ms. McCall’s son (Petitioners) against the United States:

During June 2005, Michelle McCall received prenatal medical care at a United States Air Force clinic as an Air Force dependent. Ms. McCall opted for the Air Force’s family practice department to provide primary prenatal care and delivery services throughout her pregnancy. She had a healthy and normal pregnancy until the last trimester. On February 21, 2006, test results revealed that Ms. McCall’s blood pressure was high and that she was suffering from severe preeclampsia. Ms. McCall’s serious condition required that labor be induced immediately.

Instead of transferring Ms. McCall to the OB/GYN department, the family practice department continued to provide medical care. The Air Force hospital was temporarily unavailable for obstetric and delivery services, so members of the family practice department transferred Ms. McCall to the Fort Walton Beach Medical Center instead. There, Air Force family practice doctors treated Ms. McCall for hypertension and induced labor. When Ms. McCall dilated to five centimeters, her contractions slowed and became weaker. The Air Force family practice doctors treating Ms. McCall called an Air Force obstetrician, Dr. Archibald, and asked if he could perform a cesarean section. Dr. Archibald reported that he was performing another surgery and would not be available to perform a cesarean section on Ms. McCall until after he finished that surgery. The Air Force family practice doctors prepared Ms. McCall for a cesarean section but did not call other obstetricians to determine if one was available to provide immediate medical care.

On February 22, 2006, Dr. Archibald finally arrived to perform the cesarean section, but Ms. McCall’s contractions had resumed and the Air Force family practice doctors decided to allow Ms. McCall to deliver vaginally. Dr. Archibald left the Fort Walton Medical Center. On February 23, 2006 at 1:25 a.m., Ms. McCall delivered a healthy baby boy. Family members who visited Ms. McCall after the delivery expressed concerns about the amount of blood Ms. McCall had lost during delivery. Medical personnel assured these family members that Ms. McCall was stable.

Thirty-five minutes later, when the placenta had not delivered as expected, two family practice doctors from the family practice – 4 –

department tried without success to manually extract the placenta. An Air Force nurse anesthetist administered additional epidural pain relief and gave Ms. McCall two separate doses of Morphine intravenously. Around 2:35 a.m., the family practice department doctors called Dr. Archibald, the obstetrician, for assistance when they could not remove the placenta manually.

Ms. McCall’s blood pressure began to drop rapidly and remained dangerously low over the next two and a half hours. The Air Force nurse anesthetist monitoring Ms. McCall’s vital signs did not notify the family practice doctors of the drop in Ms. McCall’s blood pressure. Dr. Archibald arrived at 2:45 a.m. and removed the placenta within five minutes. The family practice department doctors informed Dr. Archibald that Ms. McCall had not lost much blood during delivery. Dr. Archibald, however, noticed severe vaginal lacerations and worked to repair them over the next hour. During that time, the Air Force nurse anesthetist monitored Ms. McCall’s vital signs, reported to Dr. Archibald that they were stable, and failed to inform him that Ms. McCall’s blood pressure was dangerously low and continuing to drop. Dr. Archibald never checked the vital signs himself and relied exclusively on the nurse to inform him of any blood pressure changes or problems.

At 3:50 a.m. when Dr. Archibald finished his work, he requested an immediate blood count and, if needed, a transfusion to compensate for the blood Ms. McCall lost during the procedure. Forty minutes later, the family practice department physician ordered the blood count test. Forty minutes after that, and over an hour after Dr. Archibald had requested immediate blood work, a nurse attempted to draw blood from Ms. McCall. Ms. McCall was unresponsive. She had gone into shock and cardiac arrest as a result of severe blood loss. It is not clear how long Ms. McCall had been in this state, since no one had monitored her or checked her status for the hour following Dr. Archibald’s procedure. Ms. McCall never regained consciousness and was removed from life support on February 27, 2006.

Id. at 946-47.

The Petitioners filed an action against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-80. Id. at 947. In addition – 5 –

to finding the United States liable under the FTCA, the United States District Court for the Northern District of Florida determined that the Petitioners’ economic damages, or financial losses, amounted to $980,462.40. Id. The district court concluded that the Petitioners’ noneconomic damages, or nonfinancial losses, totaled $2 million, including $500,000 for Ms. McCall’s son and $750,000 for each of her parents. Id.

However, the district court limited the Petitioners’ recovery of wrongful death noneconomic damages to $1 million upon application of section 766.118(2), Florida Statutes (2005), Florida’s statutory cap on wrongful death noneconomic damages based on medical malpractice claims. Id.1The district court denied a motion filed by the Petitioners that challenged the constitutionality of Florida’s wrongful death statutory cap under both the Florida and United States Constitutions. Id. The district court also denied the Petitioners’ motion to alter or amend the judgment. Id. at 947-48.

1. Under the FTCA, damages are “determined by the law of the State where the tortious act was committed, 28 U.S.C. § 1346(b), . . . subject to the limitations that the United States shall not be liable for ‘interest prior to judgment or for punitive damages.’ ” Hatahley v. United States, 351 U.S. 173, 182 (1956) (quoting 28 U.S.C. § 2674).

On appeal to the Eleventh Circuit, the Petitioners challenged the district court’s rulings with regard to both the application and the constitutionality of the cap mandated by Florida law on wrongful death noneconomic damages for medical – 6 –

malpractice claims. Id. at 948. The Petitioners contended that the statutory cap violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and constitutes a taking in violation of the Fifth Amendment of the United States Constitution. Id. They also asserted that the cap violates the following provisions of the Florida Constitution: (1) the separation of powers guarantee in article II, section 3 and article V, section 1; (2) the right to trial by jury under article I, section 22; (3) the right of access to the courts under article I, section 21; (4) the right to equal protection under article I, section 2; and (5) the prohibition against the taking of private property without full compensation under article X, section 6. Id.

The Eleventh Circuit affirmed the application of the statutory cap on noneconomic damages and held that the statute does not constitute a taking in violation of article X, section 6, of the Florida Constitution. Id. at 953. The federal appellate court also held that the cap does not violate either the Equal Protection Clause or the Takings Clause of the United States Constitution. Id. However, the Eleventh Circuit granted a motion filed by the Petitioners to certify four questions to this Court regarding the remaining challenges to the statutory cap under the Florida Constitution. Id.- 7 –

STATUTORY PROVISION

At issue is Florida’s statutory cap on wrongful death2noneconomic damages in medical negligence actions as articulated in section 766.118. Section 766.118(2) states:

2. The legal analyses for personal injury damages and wrongful death damages are not the same. The present case is exclusively related to wrongful death, and our analysis is limited accordingly.

(2) Limitation on noneconomic damages for negligence of practitioners.—

(a) With respect to a cause of action for personal injury or wrongful death arising from medical negligence of practitioners, regardless of the number of such practitioner defendants, noneconomic damages shall not exceed $500,000 per claimant. No practitioner shall be liable for more than $500,000 in noneconomic damages, regardless of the number of claimants.

(b) Notwithstanding paragraph (a), if the negligence resulted in a permanent vegetative state or death, the total noneconomic damages recoverable from all practitioners, regardless of the number of claimants, under this paragraph shall not exceed $1 million. In cases that do not involve death or permanent vegetative state, the patient injured by medical negligence may recover noneconomic damages not to exceed $1 million if:

1. The trial court determines that a manifest injustice would occur unless increased noneconomic damages are awarded, based on a finding that because of the special circumstances of the case, the noneconomic harm sustained by the injured patient was particularly severe; and

2. The trier of fact determines that the defendant’s negligence caused a catastrophic injury to the patient.

(c) The total noneconomic damages recoverable by all claimants from all practitioner defendants under this subsection shall not exceed $1 million in the aggregate. – 8 –

§ 766.118(2), Fla. Stat.3Noneconomic damages refer to “nonfinancial losses . . . including pain and suffering, inconvenience, physical impairment, mental anguish . . . 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.” § 766.202(8), Fla. Stat. (2005) (incorporated in § 766.118(1)(b), Fla. Stat. (2005)).

3. Section 766.118 separates the cap on noneconomic damages into two categories, providing different limitations on damages for practitioners and nonpractitioners. See § 766.118(2), (3), Fla. Stat. Section 766.118(3), Florida Statutes, limits noneconomic damages for the negligence of nonpractitioner defendants. The Petitioners asserted that they were entitled to recover under this subsection as well; however, the federal district court noted that “no evidence at trial singled out a specific nonpractitioner for negligent conduct.” McCall, 642 F.3d at 948-49 (quoting Estate of McCall v. United States, 663 F. Supp. 2d 1276, 1295 (N.D. Fla. 2009)). The federal district court concluded that the Petitioners had failed to establish that Ms. McCall’s death resulted from the negligence of a nonpractitioner, and the Eleventh Circuit affirmed this determination. Id. at 949.

EQUAL PROTECTION

We have rephrased the first question certified to this Court by the Eleventh Circuit which addresses whether the cap on wrongful death noneconomic damages under section 766.118 violates the right to equal protection guaranteed by the Florida Constitution. The Florida Constitution provides, in pertinent part:

All natural persons, female and male alike, are equal before the law.

Art. I, § 2, Fla. Const. This Court has stated “[t]he constitutional right of equal protection of the laws means that everyone is entitled to stand before the law on – 9 –

equal terms with, to enjoy the same rights as belong to, and to bear the same burden as are imposed upon others in a like situation.” Caldwell v. Mann, 26 So. 2d 788, 790 (Fla. 1946).

Unless a suspect class or fundamental right protected by the Florida Constitution is implicated by the challenged provision, the rational basis test will apply to evaluate an equal protection challenge. See Amerisure Ins. Co. v. State Farm Mut. Auto. Ins. Co., 897 So. 2d 1287, 1291 n.2 (Fla. 2005). To satisfy the rational basis test, a statute must bear a rational and reasonable relationship to a legitimate state objective, and it cannot be arbitrary or capriciously imposed. Dep’t of Corr. v. Fla. Nurses Ass’n, 508 So. 2d 317, 319 (Fla. 1987). Stated another way, the test for consideration of equal protection is whether individuals have been classified separately based on a difference which has a reasonable relationship to the applicable statute, and the classification can never be made arbitrarily without a reasonable and rational basis.

Having carefully considered the arguments of both parties and the amici, we conclude that section 766.118 violates the Equal Protection Clause of the Florida Constitution under the rational basis test. 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 – 10 –

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.

Arbitrary Distinctions

This Court previously reasoned in St. Mary’s Hospital, Inc. v. Phillipe, 769 So. 2d 961 (Fla. 2000), that the type of classification addressed in this case is purely arbitrary and unrelated to a true state interest. We clearly announced in Phillipe that aggregate caps or limitations on noneconomic damages violate equal protection guarantees under the Florida Constitution when applied without regard to the number of claimants entitled to recovery. This inherently discriminatory action and resulting invidious discrimination do not pass constitutional muster. We stated:

If we were to accept St. Mary’s contention that the Legislature intended to limit noneconomic damages to $250,000 per incident in the aggregate, then the death of a wife who leaves only a surviving spouse to claim the $250,000 is not equal to the death of a wife who leaves a surviving spouse and four minor children, resulting in five claimants to divide $250,000. We fail to see how this classification bears any rational relationship to the Legislature’s stated goal of alleviating the financial crisis in the medical liability industry. Such a categorization offends the fundamental notion of equal justice under the law and can only be described as purely arbitrary and unrelated to any state interest.- 11 –

Id. at 972 (emphasis supplied).

The equal protection violation identified by Phillipe is evident in the present case. The plain language of this statutory plan irrationally impacts circumstances which have multiple claimants/survivors differently and far less favorably than circumstances in which there is a single claimant/survivor and also exacts an irrational and unreasonable cost and impact when, as here, the victim of medical negligence has a large family, all of whom have been adversely impacted and affected by the death. Three separate noneconomic damage determinations were assessed by the federal district court based on the evidence presented. The damages suffered by Ms. McCall’s parents were determined to be $750,000 each, and Ms. McCall’s surviving son sustained damages determined to be $500,000. Applying the cap, the federal court then reduced the amounts of damages so each claimant would receive only half of his or her respective damages. Yet, if Ms. McCall had been survived only by her son, he would have recovered the full amount of his noneconomic damages: $500,000. Here, the cap delineated in section 766.118 limited the recovery of a surviving child (and surviving parents) simply because others also suffered losses. In a larger context, under section 766.118, the greater the number of survivors and the more devastating their losses are, the less likely they are to be fully compensated for those losses.

Other state supreme courts have struck down caps on noneconomic damages – 12 – the Supreme Court of Illinois aptly described how the cap operated to discriminate against claimants who have suffered the most grievous injuries, while benefitting the tortfeasor and/or the insurance company: – 13 –

Therefore, the statute discriminates between slightly and severely injured plaintiffs, and also between tortfeasors who cause severe and moderate or minor injuries.

Best v. Taylor Mach. Works, 689 N.E.2d 1057, 1075 (Ill. 1997) (emphasis supplied). The Supreme Court of New Hampshire condemned on equal protection grounds a $250,000 cap on noneconomic damages in medical malpractice cases, concluding that it is “simply unfair and unreasonable to impose the burden of supporting the medical care industry solely upon those persons who are most severely injured and therefore most in need of compensation.” Carson v. Maurer, 424 A.2d 825, 837 (N.H. 1980), overruled on other grounds, Cmty. Res. for Justice, Inc. v. City of Manchester, 917 A.2d 707, 721 (N.H. 2007).

Section 766.118, Florida Statutes, has the effect of saving a modest amount for many by imposing devastating costs on a few—those who are most grievously injured, those who sustain the greatest damage and loss, and multiple claimants for whom judicially determined noneconomic damages are subject to division and reduction simply based upon the existence of the cap. Under the Equal Protection Clause of the Florida Constitution, and guided by our decision in Phillipe, we hold that to reduce damages in this fashion is not only arbitrary, but irrational, and we conclude that it “offends the fundamental notion of equal justice under the law.” Phillipe, 769 So. 2d at 972; see also id. at 971 (“Differentiating between a single claimant and multiple claimants bears no rational relationship to the Legislature’s – 14 –

stated goal of alleviating the financial crisis in the medical liability insurance industry.”).

Our holding today is not inconsistent with the decisions in Samples v. Florida Birth-Related Neurological Injury Compensation Ass’n, 114 So. 3d 912 (Fla. 2013), Mizrahi v. North Miami Medical Center, 761 So. 2d 1040 (Fla. 2000), or University of Miami v. Echarte, 618 So. 2d 189 (Fla. 1993), because a review of those cases reveals that they involved statutes or challenges which are distinguishable from the present challenge to section 766.118. In Samples, the statute at issue created funding and authorized a $100,000 award to parents under the Florida Birth-Related Neurological Injury Compensation Plan (the Plan), which was structured with other benefits and provided compensation without regard to fault for birth-related neurological injury claims. 114 So. 3d at 914-15; see also § 766.303, Fla. Stat. (2013). In rejecting an equal protection challenge on the basis that the statute treats a parent who files for the $100,000 award alone differently than parents who share or divide the award, this Court distinguished the decision in Phillipe, upon which we rely today:

Whereas the provision of the Medical Malpractice Act at issue in [Phillipe] expressly concerns fault-based noneconomic damages for survivors of the deceased, the Plan at issue here establishes a system of no-fault compensation. The no-fault character of the Plan sets the parental award provision apart from the statutory limitation on fault-based damages at issue in [Phillipe]. Limitations on damages that raise equal protection concerns under a fault-based system are dissimilar and appropriately viewed differently than limitations on – 15 –

compensation under a system where eligible claimants are assured of a recovery without regard to fault.

114 So. 3d at 919. Here, as in Phillipe, section 766.118 concerns the award of damages in a traditional fault-based action. Further, section 766.118 arbitrarily reduces damages without regard to the fault of a tortfeasor simply based upon the number of survivors who are entitled to recovery. This is clearly distinguishable from the no-fault compensation award under the Plan at issue in Samples. The Plan was created by the Florida Legislature with the express purpose of “providing compensation, irrespective of fault, for birth-related neurological injury claims.” § 766.303(1), Fla. Stat. (2013) (emphasis supplied). We reiterate that the present case does not involve a statutorily-created no-fault compensation plan. Thus, the two statutory schemes are, quite simply, completely different and distinct. Accordingly, Samples is distinguishable from the present case and, contrary to the assertion of the dissent, does not control, or even inform, the outcome here.

Mizrahi involved a statute that precluded adult children of wrongful death victims from recovering noneconomic damages where the cause of death was medical malpractice. 761 So. 2d at 1041. In rejecting an equal protection challenge, we noted that under the common law an adult who was not dependant on a parent had no action and could not recover damages for injuries to that parent. Id. at 1042 (quoting Stewart v. Price, 718 So. 2d 205, 209 (Fla. 1st DCA 1998)). When the Legislature created the right for adult children to recover damages for – 16 –

the injuries and wrongful death of a parent, it chose to exclude those children from recovering noneconomic damages in one type of action (medical malpractice). Id. We ultimately held that the statute, “which created a right of action for many while excluding a specific class from such action, and which exclusion is rationally related to controlling healthcare costs and accessibility,” did not violate equal protection. Id. at 1043.

Unlike Mizrahi, the statute under review here does not address and expand a class of individuals eligible to recover noneconomic wrongful death damages. Instead, it treats similarly situated, eligible survivors differently by reducing the damages awarded without regard to the fault of the wrongdoer and based solely upon a completely arbitrary factor, i.e., how many survivors are entitled to recovery. The greater the number of survivors who are eligible to recover noneconomic damages in a medical malpractice wrongful death action, the lesser the award that each individual survivor will receive. Thus, the statute at issue in Mizrahi is also distinguishable from the noneconomic damages caps in section 766.118.

Finally, in Echarte this Court considered whether a $250,000 cap on noneconomic damages for medical malpractice claims where a party requested arbitration violated the access to courts provision of the Florida Constitution. 618 So. 2d at 190, 193. In the present case, because we address only an equal – 17 –

protection challenge—not an access to courts challenge—Echarte is inapposite. Nevertheless, the holding in Echarte that the cap was constitutional does not impact our decision today. In upholding the constitutionality of the cap in medical malpractice arbitration proceedings, this Court in Echarte noted that arbitration provided commensurate benefits in exchange for the cap, such as saving the expense of attorney fees and expert witnesses. Id. at 194. Conversely, under section 766.118, survivors receive absolutely no benefit whatsoever from the cap on noneconomic damages, but only arbitrary reductions based upon the number of survivors.

Moreover, the statute imposing the cap in Echarte was later addressed by this Court in Phillipe. In Phillipe, we held that the cap applied per claimant rather than per incident, and noted that to hold otherwise would create equal protection concerns. 769 So. 2d at 971. In reaching this conclusion, we expressly stated that “Echarte does not control our decision.” Id. Similarly, Echarte does not compel a different result here. Rather, Phillipe, which recognized that Echarte did not address a circumstance in which similarly situated survivors would receive different, arbitrarily reduced noneconomic damage awards solely based upon the number of survivors, is the decision which guides our analysis as to the constitutionality of section 766.118. See Phillipe, 769 So. 2d at 971 (noting that – 18 –

“the loss of a survivor is not diminished by the mere fact that there are multiple survivors”).

Despite our discussion of Phillipe, we emphasize that, contrary to the assertion in the concurring in result opinion, our examination of the validity of section 766.118 cannot simply conclude without further analysis. The statute at issue in Phillipe, related to damage limits, is not identical to the factors in the present case. Phillipe involved a very different statutory scheme, based upon noneconomic damage awards in the arbitration context, a factual scenario not presented here. Therefore, while Phillipe provides guidance and may be considered persuasive, it is not dispositive of our equal protection analysis today. We cannot take the drastic step of invalidating a statute simply by declaring it so and relying upon an unrelated case which evaluated an unrelated statute. Instead, a comprehensive equal protection analysis of the cap on damages in section 766.118 is required under Florida law to resolve the certified question. Accordingly, a description of the elements of an equal protection review, and our evaluation of those elements, must follow. This is a consideration of the facts and circumstances surrounding the challenged statute and the subject matter it addresses.

The Alleged Medical Malpractice Crisis

In addition to arbitrary and invidious discrimination between medical malpractice claimants, the cap on noneconomic damages also violates the Equal – 19 –

Protection Clause of the Florida Constitution because it bears no rational relationship to a legitimate state objective, thereby failing the rational basis test. See Fla. Nurses Ass’n, 508 So. 2d at 319. Although the concurring in result opinion seeks to avoid a full proper legal analysis, contrary to the view of that opinion, no single prior case provides a complete answer and none provides any legal analysis which affords a basis for an answer to the question we must address. Our precedent expressly states that a proper equal protection analysis under the rational basis test “requires this Court to determine: (1) whether the challenged statute serves a legitimate governmental purpose, and (2) whether it was reasonable for the Legislature to believe that the challenged classification would promote that purpose.” Warren v. State Farm Mut. Auto. Ins. Co., 899 So. 2d 1090, 1095 (Fla. 2005) (emphasis supplied); see also Zapo v. Gilreath, 779 So. 2d 651, 655 (Fla. 5th DCA 2001); Fla. Dept. of Ins. v. Keys Title & Abstract Co., 741 So. 2d 599, 602 (Fla. 1st DCA 1999). Thus, under Warren, and contrary to the view of the concurring in result opinion, both prongs of the rational basis test must be evaluated to determine the constitutionality of a statute.

Despite this precedent, the concurring in result opinion loudly proclaims that the full rational basis test be ignored and the legitimacy of the purpose for the cap not be addressed as part of our constitutional analysis. Further, that concurring in result opinion argues that only a single decision which does not set forth a proper – 20 –

analysis be applied. However, we would abandon our obligation under Warren were we to simply rubber stamp the Legislature’s asserted justification for the cap—as the concurring in result and dissenting opinions suggest we do—and fail to consider the existing factors and circumstances to determine whether there is legitimacy to that justification. We decline to abdicate our responsibility under the law and, therefore, address whether the cap “serves a legitimate governmental purpose” pursuant to the first prong of Warren. 899 So. 2d at 1095 (emphasis supplied).

The Florida Legislature attempted to justify the cap on noneconomic damages by claiming that “Florida is in the midst of a medical malpractice insurance crisis of unprecedented magnitude.” Ch. 2003-416, § 1, Laws of Fla., at 4035. The Legislature asserted that the increase in medical malpractice liability insurance premiums has 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. Id.

In enacting the statutory cap on noneconomic damages, the Legislature relied heavily on a report prepared by the Governor’s Select Task Force on Healthcare Professional Liability Insurance (Task Force), which concluded that “actual and potential jury awards of noneconomic damages (such as pain and suffering) are a key factor (perhaps the most important factor) behind the – 21 –

unavailability and un-affordability of medical malpractice insurance in Florida.” Report of Governor’s Select Task Force on Healthcare Professional Liability Insurance (Task Force Report) (Jan. 29, 2003), at xvii.

To evaluate the constitutionality of the cap on noneconomic damages imposed by section 766.118, we are not required to accept the findings of the Legislature or the Task Force at face value. Instead:

While courts may defer to legislative statements of policy and fact, courts may do so only when those statements are based on actual findings of fact, and even then courts must conduct their own inquiry:

The general rule is that findings of fact made by the legislature are presumptively correct. However, it is well-recognized that the findings of fact made by the legislature must actually be findings of fact. They are not entitled to the presumption of correctness if they are nothing more than recitations amounting only to conclusions and they are always subject to judicial inquiry.

N. Fla. Women’s Health & Counseling Serv., Inc. v. State, 866 So. 2d 612, 627 (Fla. 2003) (quoting Moore v. Thompson, 126 So. 2d 543, 549 (Fla. 1960)) (some emphasis supplied).

Our consideration of the factors and circumstances involved demonstrates that the conclusions reached by the Florida Legislature as to the existence of a medical malpractice crisis are not fully supported by available data. Instead, the alleged interest of health care being unavailable is completely undermined by authoritative government reports. Those government reports have indicated that – 22 –

the numbers of physicians in both metropolitan and non-metropolitan areas have increased. For example, in a 2003 report, the United States General Accounting Office found that from 1991 to 2001, Florida’s physician supply per 100,000 people grew from 214 to 237 in metropolitan areas and from 98 to 117 in nonmetropolitan areas, or percentage increases of 10.7 and 19, respectively. Physician Workforce: Physician Supply Increased in Metropolitan and Nonmetropolitan Areas but Geographic Disparities Persisted, No. GAO-04-124, (Oct. 31, 2003), at 23, available at http://www.gao.gov/new.items/d04124.pdf. Thus, during this purported crisis, the numbers of physicians in Florida were actually increasing, not decreasing.

Additionally, an analysis of claim activity certainly does not provide a rational basis for the clear discrimination presented by the legislation. Although assertions of a malpractice insurance crisis are often accompanied by images of runaway juries entering verdicts in exorbitant amounts of noneconomic damages, see, e.g., Task Force Report at xvii, one study revealed that in Florida cases which resulted in payments of $1 million or more over a fourteen-year period, only 7.5 percent involved a jury trial verdict. See Neil Vidmar, Kara MacKillop & Paul Lee, Million Dollar Medical Malpractice Cases in Florida: Post-Verdict and Pre– 23 – Moreover, 10.1 percent of settlements that involved payments of $1 million or more were resolved without a legal action ever being filed. Id. at 1360. Such statistics led the authors of the study to conclude that jury trials constitute only a very small portion of medical malpractice payments. Id. at 1345. The authors also concluded that “tort reform efforts focused on jury verdicts are misdirected, at least with respect to $1 million verdicts in Florida. Not only do jury trials constitute only a small portion of $1 million payments, [but] the settlements following verdicts tend to be substantially less than the jury awards.” Id. at 1381 (emphasis supplied).Thus, available data indicates the Task Force’s finding that noneconomic damage awards by juries are a primary cause of the purported medical malpractice crisis in Florida is most questionable. – 24 –

describing the existence of a crisis. For example, the Task Force stated that it “believes” the alleged crisis “could get worse in the coming years. . . . Medical malpractice insurance premiums may become unaffordable, and/or coverage may become unavailable at any price to many physicians and hospitals.” See Task Force Report, at 211-12 (emphasis supplied). Further, despite blaming “actual and potential jury awards of noneconomic damages” for this ominous prediction, Task Force Report at xvii, the Task Force recognized that there are other explanations for the dramatic rise in medical malpractice insurance premiums. For example, the Task Force Report notes that in the opinion of Joanne Doroshow, Executive Director of the Center for Justice and Democracy:

[T]his so-called “crisis” is nothing more than the underwriting cycle of the insurance industry, and driven by the same factors that caused the “crises” in the 1970s and 1980s. According to . . . Doroshow, with each crisis, there has been a severe drop in the investment income for insurers, which has been compounded by sever [sic] under-pricing of insurance premiums in the prior years. . . . [D]uring years of high interest rates or excellent insurer profits that are invested for maximum return, the insurance companies engage in fierce competition for premium dollars by selling under-priced premiums and insuring very poor risks. Then . . . when investment income drops, either due to increases in interest rates or the stock market, or due to low income resulting from unbearably low premiums, the insurance industry responds by sharply increasing premiums and reducing coverage.

. . . The tort reform changes in the 1980s had nothing to do with the flattening of rates. The flattening was caused instead by modulations in the insurance cycle throughout the country.

Task Force Report, at 64 (footnotes omitted). The Task Force itself – 25 –

acknowledged:

Medical malpractice insurance has been subject to sudden jolts, both in availability of coverage and cost. An entire cycle has been defined as the period of years in which insurer underwriting profits cycle from above average to below average. These cycles have always occurred in the insurance industry, particularly in medical malpractice insurance.

Task Force Report, at 31 (emphasis supplied) (footnotes omitted). See also Tom Baker, THE MEDICAL MALPRACTICE MYTH 53-54 (2005) (“[T]he two most recent medical liability insurance crises did not result from sudden or dramatic increases in medical malpractice settlements or jury verdicts. . . . [T]he crises resulted from dramatic increases in the amount of money that the insurance industry put in reserve for claims. Those reserve increases were so big because the insurance industry systematically underreserved in the years leading up to the crisis.”).

Finally, testimony before the Senate Judiciary Committee and debate within the Florida Senate raised questions concerning the magnitude of any purported health care crisis. With regard to the former, the deputy director of the Florida Office of Insurance Regulation testified he had found no evidence to suggest that there had been a large increase in the number of frivolous lawsuits filed in Florida, nor was there any evidence of excessive jury verdicts in the prior three years. Testimony of Steve Roddenberry, Senate Judiciary Committee Meeting, July 14, 2003, at 3, 10.

During the subsequent floor debate, the following dialogue occurred – 26 –

between a senator and the Chairman of the Senate Judiciary Committee:

SENATOR: Were you able to determine whether or not there is an access to health care crisis in terms of the number of doctors licensed to practice medicine, the number of hospital closures or the number of emergency rooms closed?

. . . .

CHAIRMAN: [T]his is not what I found. What the testimony was from both the Department of Health, the Agency for Health Care Administration and various other people . . . was that there, in fact, are more doctors licensed to practice today in the State of Florida than there were five years ago.

Applications to the medical schools in the State of Florida are up and have been up consistently for the past, for the past number of years.

And also that emergency rooms have not been closing as a result of medical malpractice.

As a matter of fact, the Department of Health and the Agency for Health Care Administration both testified under oath that they could not cite any incidents where because of a medical malpractice crisis patients were denied some type of care or directed someplace else.

Senate Floor Debate Tr. 22-23 (Aug. 13, 2003) (emphasis supplied). Further support for the testimony of the committee chairman exists in a report prepared by the United States General Accounting Office, which states:

Reports of physician departures in Florida were anecdotal, not extensive, and in some cases we determined them to be inaccurate. For example, state medical society officials told us that Collier and Lee counties lost all of their neurosurgeons due to malpractice concerns; however, we found at least five neurosurgeons currently practicing in each county as of April 2003. Provider groups also reported that malpractice pressures have recently made it difficult for Florida to recruit or retain physicians of any type; however, over the past 2 years the number of new medical licenses issued has increased and physicians per capita has remained unchanged.- 27 –

Medical Malpractice: Implications of Rising Premiums on Access to Health Care, No. GAO-03-836, (Aug. 2003), at 17-18, available at http://www.gao.gov/new.items/d03836.pdf.

Moreover, for those doctors who are leaving or have left Florida, there was no concrete evidence to demonstrate that high malpractice premiums were the cause of that departure. During her testimony before the Senate Judiciary Committee, the CEO of the Florida Medical Association testified with regard to two cases where physicians had relocated from Florida to North Carolina and New York, after which the following testimony ensued:

SENATOR: The [American Medical Association] has identified the states with national [crises], medical malpractice. One of the states is North Carolina. One of the states is New York. So it seems like you get some physicians that are leaving Florida for states that are also considered by the AMA to be in national crisis. Why?

CEO: Maybe they haven’t figured that out yet.

CHAIRMAN: You better call the guy from North Carolina and—

CEO: I haven’t got the answer to that. I haven’t talked to any of these people individually.

CHAIRMAN: You better call the guy from North Carolina and tell him they don’t have caps there either.

Testimony of Sandra Mortham, Senate Judiciary Committee Meeting, July 14, 2003, at 117, 129-30.

Based upon these statements and reports, although medical malpractice premiums in Florida were undoubtably high in 2003, we conclude the Legislature’s determination that “the increase in medical malpractice liability insurance rates is – 28 –

forcing physicians to practice medicine without professional liability insurance, to leave Florida, to not perform high-risk procedures, or to retire early from the practice of medicine” is unsupported. Ch. 2003-416, §1, Laws of Fla., at 4035. Thus, the finding by the Legislature and the Task Force that Florida was in the midst of a bona fide medical malpractice crisis, threatening the access of Floridians to health care, is dubious and questionable at the very best.

The Impact of Damage Caps on the Alleged Crisis

Even if these conclusions by the Legislature are assumed to be true, and Florida was facing a dangerous risk of physician shortage due to malpractice premiums, we conclude that section 766.118 still violates Florida’s Equal Protection Clause because the available evidence fails to establish a rational relationship between a cap on noneconomic damages and alleviation of the purported crisis. See generally Fla. Nurses Ass’n, 508 So. 2d at 319 (stating that for legislation to be constitutional under the rational basis standard, it must bear a rational and reasonable relationship to a legitimate state objective).

Reports have failed to establish a direct correlation between damages caps and reduced malpractice premiums. Weiss Ratings, which evaluates the performance of the malpractice insurance industry, has detailed two particularly salient findings. First, based upon data acquired from 1991 until 2002, the

median medical malpractice premiums paid by physicians in three high-risk – 29 – without caps) experienced static or declining medical malpractice premiums. Id. at 8. – 30 –

insurer can cut its rates after a bill [that caps noneconomic damages at $250,000] passes.” Phil Galewitz, “Underwriter Gives Doctors Dose of Reality,” Palm Beach Post, Jan. 29, 2003, at 1A. Mr. White advised that “[e]ven if a cap is approved by the legislature and survives the likely legal challenge . . . it would yield on average only a 16 percent premium cut.” Id. (emphasis supplied). Interestingly, during his testimony before the Senate Judiciary Committee, Mr. White acknowledged that in 2002, the experience of FPIC was more positive in Florida than in Missouri, a state which at that time had implemented caps on damages. Testimony of Robert White, Senate Judiciary Committee Meeting, at 59.

Members of the Florida Senate and the House of Representatives also expressed doubt as to whether a noneconomic damages cap would have the effect of reducing premiums. During floor debate in the Senate, the following dialogue between a senator and the Chairman of the Senate Judiciary Committee occurred:

SENATOR: [W]as there any testimony from either FPIC or any other insurance company that may have testified . . . that they would immediately reduce rates if they got a cap on damages?

SENATE PRESIDENT: [Chairman] to respond.

CHAIRMAN: No.

. . . .

SENATOR: Was there any testimony the only way that you could reduce malpractice premiums was to cap damages?

SENATE PRESIDENT: [Chairman to respond.]

CHAIRMAN: No.

. . . .

SENATOR: . . . It’s my recollection, and maybe this might help [the Chairman], I remember a Mr. Bob White, representing FPIC, in testimony relative to the caps said, no, there wouldn’t be an – 31 –

immediate reduction in medical malpractice premiums due to caps, but as soon as they would be affirmed by a Court, there would be an immediate reduction available.

. . . .

CHAIRMAN: Senator . . . that was not the testimony given by Mr. White. I believe he said that bad faith and a series of other things had to be there, so the answer is no, it was not by placing a $250,000 cap that would give a reduction.

. . . .

[T]he question was very specific, whether or not caps, whether or not Mr. White said that caps would reduce insurance rates. That was the question.

The answer is, he said no. I have the transcripts on my desk, and if you would care to show me where it says otherwise, I would be happy to say so.

. . . .

What he did say was you have to add several variables, bad faith is one of them and I believe there were others. So if the question is on caps, the answer is no.

Senate Floor Debate Tr. 45-47, 49 (Aug. 13, 2003). Further, during floor debate in the House of Representatives, one representative expressed concern that if the Florida Legislature implements a cap on noneconomic damages, there is no requirement in the bill that insurers pass any savings onto physicians. House Floor Debate Tr. 38-39 (Aug. 13, 2003) (“[A]t the end of the day, actually, [the insurance companies] don’t have to pay anything back to the doctors. It’s just a windfall, and there’s no provision in the bill that says otherwise.”).

The concerns of that representative were very perceptive and were not unfounded. While the cap on noneconomic damages limits the amount of money that insurance companies must pay injured victims of medical malpractice, section – 32 –

766.118 does not require insurance companies to use the acquired savings to lower malpractice insurance premiums for physicians, and the argument and reliance by the Respondent on rate reduction statutes is misplaced. When the statutory cap on noneconomic damages was first enacted, the legislation contained a provision, codified at section 627.062(8)(a)1., Florida Statutes (2003), that simply required the Florida Office of Insurance Regulation (FLOIR) to calculate a “presumed factor that reflects the impact that the changes contained in such legislation will have on rates for medical malpractice insurance and shall issue a notice informing all insurers writing medical malpractice coverage of such presumed factor.” Ch. 2003-416 § 40, Laws of Fla, at 4078. There was no mandated rate reduction. After FLOIR issued a notice of the presumed factor, all medical malpractice insurance companies that offered coverage in Florida were directed to submit a rate filing for medical malpractice insurance that reflected “an overall rate reduction at least as great as the presumed factor.” § 627.062(8)(a)2., Fla. Stat. (2003).

Although at first glance this statutory subsection may appear to compel medical malpractice insurance companies to reduce their rates in response to the 2003 legislation, FLOIR nonetheless advised that “[e]ven after application of the presumed factor, we anticipate insurers will file for rate increases.” Press Release, Florida Office of Insurance Regulation, Office of Insurance Regulation Releases Presumed Factor (Nov. 10, 2003), available at – 33 –

http://www.floir.com/PressReleases/viewmediarelease.aspx?id=1316. Moreover, despite any intended moderation of medical malpractice premiums based upon the calculation of the presumed factor, the 2013 Annual Report on Medical Malpractice Financial Information, Closed Claim Database and Rate Filings, prepared by FLOIR compared the premiums of Florida doctors in four specialties (family practice, obstetrics, emergency, and orthopedics) with other sampled states and concluded that “Florida is either the highest (of nine states) or the second highest state as far as premiums go in all but one of the scenarios.” 2013 FLOIR Annual Report (Oct. 1, 2013) at 57-58, available at http://www.floir.com/Office/DataReports.aspx#rec (CY2012). Therefore, despite assertions that the presumed factor created in section 627.062(8)(a) caused massive rate reductions by medical malpractice insurers to pass savings onto their customers, the data suggests otherwise. Subdivision (8) was even repealed from section 627.062 in 2011, having been designated “obsolete” by the Legislature. Ch. 2011-39, § 12, Laws of Fla., at 514, 536-37.

A number of state courts have expressed concern that without a statutory mandate that insurance companies lower their insurance premiums in response to tort reform, the savings resulting from reforms such as damages caps may simply increase insurance company profits. In Zeier v. Zimmer, Inc., 152 P.3d 861 (Okla. 2006), the Oklahoma Supreme Court held that a statute requiring a medical – 34 –

malpractice claimant to obtain an affidavit of merit from a qualified expert as a prerequisite to filing an action was unconstitutional under the Oklahoma Constitution. See id. at 874. While Zeier did not address caps, we find an observation of the Oklahoma Supreme Court to be just as applicable to caps on noneconomic damages:

[An] unanticipated result of statutes similar to Oklahoma’s scheme has been the creation of a windfall for insurance companies . . . which are not required to implement post-tort reform rates decreasing the cost of medical malpractice insurance to physicians. These companies happily pay less out in tort-reform states while continuing to collect higher premiums from doctors.

Id. at 869-70 (footnote omitted).

Moreover, the Texas Supreme Court has strongly questioned whether caps on damages will lower insurance premiums. In Lucas v. United States, 757 S.W.2d 687 (Tex. 1988), the court noted that when the Texas Legislature enacted medical malpractice damages caps, it stated that “adoption of certain modifications in the medical, insurance, and legal systems . . . may or may not have an effect on the rates charged by insurers for medical professional liability coverage.” Id. at 691. In striking down the caps as unconstitutional, the court concluded that “[i]n the context of persons catastrophically injured by medical negligence, we believe it is unreasonable and arbitrary to limit their recovery in a speculative experiment to determine whether liability insurance rates will decrease.” Id. We completely agree with and adopt the position of the Supreme Court of Texas. – 35 –

We conclude that the record and available data fail to establish a legitimate relationship between the cap on wrongful death noneconomic damages and the lowering of medical malpractice insurance premiums. Accordingly, we hold that section 766.118 fails the rational basis test and violates the Equal Protection Clause of the Florida Constitution. See generally Fla. Nurses Ass’n, 508 So. 2d at 319.

The Current Status of Medical Malpractice in Florida

Lastly, even if a “crisis” existed when section 766.118 was enacted, a crisis is not a permanent condition. Conditions can change, which remove or negate the justification for a law, transforming what may have once been reasonable into arbitrary and irrational legislation. The United States Supreme Court has recognized that “[a] law depending upon the existence of an emergency or other certain state of facts to uphold it may cease to operate if the emergency ceases or the facts change even though valid when passed.” Chastleton Corp. v. Sinclair, 264 U.S. 543, 547-48 (1924). See also Ferdon ex rel. Petrucelli v. Wisconsin Patients Comp. Fund, 701 N.W.2d 440, 468 (Wisc. 2005) (“A statute may be constitutionally valid when enacted but may become constitutionally invalid because of changes in the conditions to which the statute applies. A past crisis does not forever render a law valid.” (footnotes omitted)). Thus, even if section 766.118 may have been rational when it was enacted based on information that was available at the time, it will no longer be rational where the factual premise – 36 –

upon which the statute was based has changed. It is for this reason that Florida courts consider both pre- and post-enactment data in assessing the continued rationality of a statute.

Having evaluated current data, we conclude that no rational basis exists to justify continued application of the noneconomic damages cap of section 766.118. The 2011 State Physician Workforce Data Book prepared by the Association of American Medical Colleges (AAMC) reflects that in 2010, there were 254.8 active physicians for every 100,000 people in Florida, a number higher than twenty-eight other states. AAMC, 2011 State Physician Workforce Data Book, at 9 (Nov. 2011), available at https://www.aamc.org/download/263512/data/statedata2011.pdf. Further, data collected through December 31, 2010, reflects that 59.4 percent of active physicians who completed medical school in Florida are practicing in Florida. Id. at 53. Only three other states retained a higher percentage of medical students. Id.

Additionally, the Office of the State Courts Administrator (OSCA) reports that medical malpractice filings in Florida have decreased significantly. During fiscal year 2003-04, a total of 5,829 professional malpractice and product liability actions were filed in Florida circuit courts, comprising 3.2 percent of all civil – 37 – However, during fiscal year 2011-12, only 2,313 such actions were filed in Florida circuit courts, a decrease of more than 60 percent, and comprising just 0.76 percent of all civil actions filed. The Annual Reports on Medical Malpractice Financial Information prepared by the Florida Office of Insurance Regulation (FLOIR Annual Report) reflect a similar decrease in both the number of claims and in the amount of noneconomic damages paid by medical malpractice insurance companies. For example, 3,574 medical malpractice claims were closed in 2004, and insurance companies paid $195,132,457 in noneconomic damages. 2005 FLOIR Annual Report (Oct. 1, 2005) at 40, 44, available at http://www.floir.com/Office/DataReports.aspx#rec (CY2004). On the other hand, in 2012 only 2,491 medical malpractice claims were closed, and insurance companies paid $140,941,965 in noneconomic damages, decreases of 30.3 percent and 27.7 percent, respectively. 2013 FLOIR Annual Report (Oct. 1, 2013) at 10, 88, available at http://www.floir.com/Office/DataReports.aspx#rec (CY2012). – 38 – . . . Related financial information in the report also suggests that .

surplus of 14.0%in 2012. This return compares verypositively withthe average countrywide all-lines net return on surplusforFlorida’sleadingmedicalmalpractice writers of 5.3% (downfrom 7.1%in2011, butnotfar out ofline withmarket returns in 2012).Thisrepresents the ninth consecutive year ofprofitability... . Relatedfinancialinformationin the report also suggests thatthe leadingmalpractice carriers as a classare financially strong.

2013 FLOIR Annual Report at 8-9 (emphasis supplied). The most recent records

and reports of the Florida Office ofInsurance Regulation, and the annualreports of

medical malpractice insurers,confirmthat notonly hasthe numberof insurers

providingmedicalmalpractice insurance coverage increased,see2012 FLOIR

Annual Report at 40-41 and 2013 FLOIR Annual Report at 44, the profits would

probably shock most concerned. Indeed, between theyears of 2003 and 2010,four

insurance companies that offeredmedical malpractice insurance inFlorida

cumulatively reported anincrease in theirnet income ofmore than 4300 percent.9

9. The fourinsurance companies were TheDoctors Company, Mag MutualInsurance Company, ProAssurance Corporation, andFirst Professionals InsuranceCompany. Each of the three remaining insurance companies posts its annualreports online.Seehttp://www.thedoctors.com/TDC/Financials/CON_ID_000780; http://www.magmutual.com/annual-reports; andhttp://www.proassurance.com/investorrelations/annualreport.aspx. In October 2011, the Doctors Companymerged with the parent company ofFPIC.Seehttp://www.thedoctors.com/TDC/PressRoom/PressContent/CON_ID_004471. SinceFPICisno longer anindependent entity, the 2003 annual reportforFPIC isnot available on the website for a specific insurance company, butis available athttp://www.rocketfinancial.com/IRVault.aspx?fID=6352&tID=1002. Every insurance company authorized to conduct business inFlorida is required to file anannual statement “of its financial condition, transactions, and affairs” with the Office of Insurance Regulation. Fla. Admin. Code R. 69O-137.001(2)(a).

 

-38 — 39 – and it should no longer be necessary to continue punishing those most seriously injured by medical negligence by limiting their noneconomic recovery to a fixed, arbitrary amount. – 40 –

discrimination against Florida families is not rational or reasonable when it attempts to utilize aggregate caps to create unreasonable classifications. Accordingly, and for each of these reasons, the cap on wrongful death noneconomic damages in medical malpractice actions does not pass constitutional muster.

THE REMAINING CERTIFIED QUESTIONS

We conclude that the remaining certified questions need not be addressed. With regard to the second and third questions, the provision of the Florida Constitution that governs access to courts protects those rights which existed either at common law or by statute prior to the adoption of the 1968 Declaration of Rights. See Kluger v. White, 281 So. 2d 1, 4 (Fla. 1973). Similarly, the right to trial by jury is guaranteed only in those cases where the right was enjoyed at the time the first Constitution of Florida became effective in 1845. In re 1978 Chevrolet Van, 493 So. 2d 433, 434 (Fla. 1986).

At common law, Florida did not recognize a cause of action for wrongful death. White v. Clayton, 323 So. 2d 573, 575 (Fla. 1975) (“An action for wrongful death was not authorized at common law, and is a creation of the legislature.”). Moreover, although the Florida Legislature authorized an action for wrongful death prior to 1968, see, e.g., § 768.01, Fla. Stat. (1941), the right of survivors to recover noneconomic damages, such as pain and suffering, did not become part of Florida – 41 –

statutory law until 1972. Lifemark Hosps. of Fla., Inc. v. Afonso, 4 So. 3d 764, 769 (Fla. 3d DCA), cert. denied, 23 So. 3d 711 (Fla. 2009).

Section 766.118 caps noneconomic damages in both wrongful death medical malpractice actions and personal injury medical malpractice actions where the victim survives. This case involves only a wrongful death medical malpractice action. Because the right of Ms. McCall’s parents and son to recover noneconomic damages for her death did not exist prior to 1972, their access to courts and jury trial challenges to section 766.118 are not cognizable. Accordingly, to answer the second and third questions certified by the federal appellate court with regard to personal injury medical malpractice actions would constitute an advisory opinion, which we are not authorized to provide. Sarasota-Fruitville Drainage Dist. v. Certain Lands Within Said Dist., 80 So. 2d 335, 336 (Fla. 1955) (“We have repeatedly held that this Court was not authorized to render advisory opinions except in the instances required or authorized by the Constitution.”).

Our decision not to answer the fourth certified question addressing the separation of powers challenge is based upon a similar rationale. As previously stated, with regard to wrongful death, the Florida Legislature created a cause of action where none previously existed. Clayton, 323 So. 2d at 575. However, section 766.118 addresses both personal injury medical malpractice actions, which previously existed under the common law, Maggio v. Fla. Dep’t of Labor and – 42 –

Emp. Security, 899 So. 2d 1074, 1081 n.5 (Fla. 2005) (noting that “unlike causes of action that are solely the creature of statute, medical malpractice actions existed as common law torts”), and wrongful death medical malpractice actions, which are purely a statutory creation. Were we to answer the fourth certified question, it would constitute, in part, an impermissible advisory opinion. Sarasota-Fruitville, 80 So. 2d at 336. For this reason, we decline to do so.

CONCLUSION

Based on the foregoing, we answer the first rephrased certified question in the affirmative and hold that the cap on wrongful death noneconomic damages in section 766.118, Florida Statutes, violates the Equal Protection Clause of the Florida Constitution. We defer answering the remaining certified questions. We return this case to the Eleventh Circuit Court of Appeals.

It is so ordered.

LABARGA, J., concurs.

PARIENTE, J., concurs in result with an opinion, in which QUINCE and PERRY, JJ., concur.

POLSTON, C.J., dissents with an opinion, in which CANADY, J., concurs.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.

PARIENTE, J., concurring in result.

I agree with the plurality opinion authored by Justice Lewis that the statutory cap on wrongful death noneconomic damages provided by the medical malpractice – 43 –

statute violates the Equal Protection Clause of the Florida Constitution. Like the plurality, I would therefore answer the first rephrased certified question in the affirmative and decline to answer the remaining questions certified by the Eleventh Circuit Court of Appeals. In fact, as I explain, I agree with much of the plurality opinion that declares the statutory damages cap unconstitutional as applied to wrongful death actions.

However, I do not fully join in the plurality opinion because I respectfully disagree with the plurality’s application of the rational basis test in this case. Specifically, my primary disagreement is with the decision not to afford deference to the legislative findings in the absence of a showing that the findings were “clearly erroneous.” Univ. of Miami v. Echarte, 618 So. 2d 189, 196 (Fla. 1993).

Although this Court is not bound to blindly defer to all legislative findings, I disagree with the plurality’s independent evaluation and reweighing of reports and data, including information from legislative committee meetings and floor debate, as well as an article published in the Palm Beach Post newspaper, as part of its review of whether the Legislature’s factual findings and policy decisions as to the alleged medical malpractice crisis were fully supported by available data. See, e.g., plurality op. at 25-28 (Lewis, J.) (quoting from the legislative floor debate and committee meeting testimony and reviewing studies); id. at 29-31 (citing to and quoting from a newspaper article and quoting additional legislative committee – 44 –

testimony and floor debate). I emphasize, however, that although I do not fully join in the plurality’s application of the rational basis test, I agree with the ultimate conclusion that the arbitrary reduction of survivors’ noneconomic damages in wrongful death cases based on the number of survivors lacks a rational relationship to the goal of reducing medical malpractice premiums.

My analysis proceeds in the following way. I first set forth the background of the case, which frames the specific constitutional question in need of this Court’s resolution—a resolution the plurality and I both agree on. With this context in mind, I then explain how and why the plurality and I agree as to the as-applied unconstitutionality of the statutory cap on noneconomic damages in wrongful death actions. Finally, I discuss where my legal analysis diverges from the plurality’s and why, despite my agreement with the ultimate conclusion, I am unable to fully join in the plurality opinion.

I. Background

As described in the findings of fact of the federal district court where this litigation began, at the time of her death, Michelle McCall was a “bright, beautiful, and healthy, 20-year-old woman” who tragically “bled to death in the presence of all medical staff who were attending her” in the course of receiving prenatal care and delivery services for her pregnancy at Eglin Air Force Base’s clinic. Estate of McCall v. United States, 663 F. Supp. 2d 1276, 1283, 1291 (N.D. Fla. 2009). The – 45 –

facts of the medical malpractice and the circumstances of Michelle’s tragic death are not in dispute or at issue before this Court. Rather, we are faced with a legal question as to the constitutionality of Florida’s statutory limitation on noneconomic damages to Michelle’s survivors, as set forth in section 766.118, Florida Statutes.

Section 766.118 provides in pertinent part as follows:

(2) Limitation on noneconomic damages for negligence of practitioners.—

(a) With respect to a cause of action for personal injury or wrongful death arising from medical negligence of practitioners, regardless of the number of such practitioner defendants, noneconomic damages shall not exceed $500,000 per claimant. No practitioner shall be liable for more than $500,000 in noneconomic damages, regardless of the number of claimants.

(b) Notwithstanding paragraph (a), if the negligence resulted in a permanent vegetative state or death, the total noneconomic damages recoverable from all practitioners, regardless of the number of claimants, under this paragraph shall not exceed $1 million. In cases that do not involve death or permanent vegetative state, the patient injured by medical negligence may recover noneconomic damages not to exceed $1 million if:

1. The trial court determines that a manifest injustice would occur unless increased noneconomic damages are awarded, based on a finding that because of the special circumstances of the case, the noneconomic harm sustained by the injured patient was particularly severe; and

2. The trier of fact determines that the defendant’s negligence caused a catastrophic injury to the patient.

(c) The total noneconomic damages recoverable by all claimants from all practitioner defendants under this subsection shall not exceed $1 million in the aggregate.

§ 766.118, Fla. Stat. (2005).- 46 –

As to noneconomic damages, Michelle left as survivors her parents and her baby boy, who was born at the same time Michelle died. The federal district court found as follows as to the child’s noneconomic damages:

W.W., who is now a healthy and active 3 1/2 year-old boy [as of 2009], has been deprived the privilege of ever knowing his mother, of having her comfort and emotional support throughout his and her shared lifetimes, and of benefitting from her guidance and companionship. The negligent conduct in this case occurred within a matter of hours of his birth, but it leaves for W.W. a void in his life that will never truly be filled. His pain and suffering are difficult to quantify, but no one disputes the magnitude of his loss. On the other hand, the court is mindful that W.W.’s pain is necessarily tempered by his age at the time of his mother’s death. He lives with the pain of never knowing her, but not with the pain that comes from suddenly losing the love and companionship of a parent one has bonded with emotionally. W.W.’s life, while shadowed by this tragedy, will be lived with the love of those who have surrounded him from infancy—his father and his grandparents—not the pain of a conscious memory of his mother’s death. The court does not intend to minimize the loss of one’s mother; such is an obvious and enormous loss. The court simply finds that the pain and suffering for W.W. is tempered by his infancy at the time of his mother’s death, a factor that should be reflected in the noneconomic damage award. To compensate for W.W.’s loss of parental companionship, instruction, and guidance and for his mental pain and suffering, the court awards $500,000.00.

Id. at 1293-94 (footnote omitted).

As to Michelle’s parents, Edward M. and Margarita F. McCall, the federal district court awarded $750,000 to each for their pain and suffering, explaining as follows:

There is no question, as shown by the evidence, that Mr. and Mrs. McCall were both very close to their daughter and that this tragedy has greatly impacted the quality of their lives, emotionally as – 47 –

well as physically. They were otherwise healthy, active, and excited about helping their daughter and new grandson. They went to the hospital with the happy and hopeful expectation of bringing their daughter home with a healthy baby but instead found themselves faced with the agonizing decision of whether to remove life support from her. Mr. McCall struggled as he recounted their hope of Michelle possibly regaining consciousness as they laid W.W. across her before she died, and also so they could have one photograph of her “holding” her baby before she died. The pain from the loss of their only daughter and the mental agony of having to make the decision to remove her from life support will not soon abate, if ever in their lifetimes. The court takes into consideration, however, that because of their relationship as a married couple, they will both undeniably benefit from each other’s noneconomic damage award.

Id. at 1294.

As set forth by the plurality, because section 766.118(2) caps total noneconomic damages recoverable by all claimants at $1 million, each of these three independent survivors had his or her award of noneconomic damages significantly reduced so that the damages were proportionally divided so as not to exceed the statutory cap. In other words, instead of receiving the full amount of noneconomic damages awarded by the federal district court, none of which individually exceeded $1 million, each individual survivor was treated differently as to his or her noneconomic damages award because there was more than one survivor entitled to noneconomic damages in this case.

This is where the equal protection argument addressed by the plurality becomes important. Critically, as I explain in the next section, despite not fully joining in the plurality opinion, I do agree that the noneconomic damages cap – 48 –

violates Florida’s Equal Protection Clause as applied to wrongful death actions under the constitutional rational basis test.

II. Agreement with the Plurality Opinion

I agree with the plurality opinion as to the following issues. First, I agree that there are two prongs to the rational basis test, requiring the Court to consider both whether the statute serves a legitimate governmental purpose and whether the Legislature was reasonable in its belief that the challenged classification would promote that purpose. See, e.g., Hechtman v. Nations Title Ins. of N.Y., 840 So. 2d 993, 996 (Fla. 2003). As this Court explained in one of its most recent applications of the rational basis test in the equal protection context, “[t]o be entitled to relief under the rational basis test, the [challengers] must show that the [challenged statute] does not ‘bear some rational relationship to legitimate state purposes.’ ” Samples v. Fla. Birth-Related Neurological Injury Comp. Ass’n, 114 So. 3d 912, 917 (Fla. 2013) (quoting Westerheide v. State, 831 So. 2d 93, 110 (Fla. 2002)). It is not this Court’s “task ‘to determine whether the legislation achieves its intended goal in the best manner possible, but only whether the goal is legitimate and the means to achieve it are rationally related to the goal.’ ” Samples, 114 So. 3d at 917 (quoting Loxahatchee River Envtl. Control Dist. v. Sch. Bd. of Palm Beach Cnty., 496 So. 2d 930, 938 (Fla. 4th DCA 1986)). – 49 –

Second, I also agree that this Court’s role is not to simply “rubber stamp” the Legislature’s actions. Plurality op. at 20 (Lewis, J.). Indeed, although this Court’s case law requires deference to the Legislature’s factual determinations, see Echarte, 618 So. 2d at 196, this Court’s precedent also clearly establishes that the Legislature’s findings “must actually be findings of fact” and are not entitled to the presumption of correctness “if they are nothing more than recitations amounting only to conclusions.” Moore v. Thompson, 126 So. 2d 543, 549 (Fla. 1960) (quoting Seagram-Distillers Corp. v. Ben Greene, Inc., 54 So. 2d 235, 236 (Fla. 1951)).

Third, and most importantly, I agree with the plurality’s conclusion that the statutory cap on noneconomic damages is unconstitutional as applied to wrongful death actions. In my view, the Court’s controlling precedent in St. Mary’s Hospital, Inc. v. Phillipe, 769 So. 2d 961, 971 (Fla. 2000), is directly on point in holding that this type of statutory scheme is improper because “[d]ifferentiating between a single claimant and multiple claimants bears no rational relationship to the Legislature’s stated goal of alleviating the financial crisis in the medical liability insurance industry.” Id.

Indeed, as the plurality correctly notes, this Court “clearly announced in Phillipe that aggregate caps or limitations on noneconomic damages violate equal protection guarantees under the Florida Constitution when applied without regard – 50 –

to the number of claimants entitled to recovery.” Plurality op. at 10 (Lewis, J.). I agree with the plurality that this “inherently discriminatory action and resulting invidious discrimination do not pass constitutional muster.” Id.

The rationale of Phillipe is particularly applicable in this case given that, in capping wrongful death noneconomic damages regardless of the number of survivors, the only asserted legitimate State interest is the alleviation of rising medical malpractice insurance premiums paid by the affected doctors. However, as the plurality explains, there is no mechanism in place to assure that savings are actually passed on from the insurance companies to the doctors. See plurality op. at 31-34 (Lewis, J.) (explaining that section 766.118 contains no requirement that insurance companies use the acquired savings to lower malpractice premiums, discussing how subdivision (8) was subsequently repealed, and reviewing the reasoning of other courts that have expressed concern about the constitutionality of a damages cap in light of this missing link).

Of course, the statutory cap on noneconomic damages provides no commensurate benefit to the victims of medical malpractice, and if there is also no commensurate benefit to the doctors and hospitals involved in medical malpractice litigation, then only the insurance companies benefit in the form of an increase in profits. See id. This critical missing link causes me to believe that the statutory cap on noneconomic damages in medical malpractice actions not only fails the – 51 –

smell test, but the rational basis test as well, especially in light of the fact that subdivision (8) was repealed as “obsolete.” See id. at 33. In other words, the statutory cap on noneconomic damages fails the rational basis test because “the Legislature could not have had any reasonable ground for believing that there were public considerations justifying the particular classification and distinction made,” North Ridge General Hospital, Inc. v. City of Oakland Park, 374 So. 2d 461, 465 (Fla. 1979), since an aggregate cap on damages without regard to the number of claimants bears no rational relationship to the asserted State interest in “alleviating the financial crisis in the medical liability insurance industry.” Phillipe, 769 So. 2d at 971.

Finally, I strongly agree with the plurality that “even if a ‘crisis’ existed when section 766.118 was enacted, a crisis is not a permanent condition.” Plurality op. at 35 (Lewis, J.). As I stated in my dissent in Mizrahi v. North Miami Medical Center, Ltd., 761 So. 2d 1040 (Fla. 2000):

There is no indication that the past medical malpractice crisis continues into the present. If the medical malpractice crisis does not continue into the present, I fail to see how a past crisis can justify the permanent exclusion of an entire class of victims from seeking compensation for pain and suffering damages due to the wrongful death of their parents as a result of medical malpractice.

Indeed, it is a “settled principle of constitutional law” that although a statute is constitutionally valid when enacted, that statute may become constitutionally invalid due to changes in the conditions to which the statute applies. See Conner v. Cone, 235 So. 2d 492, 498 (Fla. 1970); see also Georgia S. & F. Ry. Co. v. Seven-Up Bottling Co. of Southeast Ga., 175 So. 2d 39, 40 (Fla. 1965). Accordingly, – 52 – See Seagram-Distillers Corp. v. Ben Greene, Inc.see also Conner

while it isnot our role to reexaminelegislativefact-finding, we also neednot blindly accept the Legislature’s conclusions, especially whensuch conclusionsmay nolonger bevalid due to changed conditions.SeeSeagram-Distillers Corp.v. Ben Greene, Inc., 54 So. 2d 235, 236 (Fla. 1951);see alsoConner, 235 So. 2d at 498.

… .

All other adult children who lose their parents as a result ofothernegligent conduct have the right to recover pain and suffering damagesif their parent died without a spouse.See§ 768.21(8),Fla.Stat. (1999). However, in the case of adult children ofmedicalmalpractice victims, the Legislature has denied compensationformental pain and sufferingnot because the claims of the adult childrenare meritless, but because of the adult children’s age and because theirparents died as a result ofmedicalmalpractice….

… .

In sum, thereis no indication that the distinction drawn by thestatute bears a reasonable relationship to a legitimate state interest associated with ensuring accessible health care. Further, there isnoindication that the medicalmalpractice crisis thatformed the basisfortreating this class of survivors differently than all other adult children even continues to this day. I therefore believe that the challengers ofthis statutehavemet their burden and havedemonstrated that thedistinction drawn by the Legislature is arbitrary.

Id.at 1043-44 (Pariente, J., dissenting) (emphasis added)(footnote omitted).

The same reasons that ledme to conclude that the continued deprivation of

wrongfuldeath actions to a class of survivors inmedicalmalpractice actions was a

denial of equal protectioninMizrahiapply in this context as well. There is no

evidence of a continuingmedicalmalpractice crisis that would justify the arbitrary

reduction of survivors’ noneconomic damagesin wrongful death cases based on

thenumber of survivors. This arbitraryreduction punishes the survivors ofvictims

of medicalmalpractice without any commensurate benefit to the survivors and

-52 — 53 –

without a rational relationship to the goal of reducing medical malpractice premiums. Accordingly, like the plurality, I would answer the first rephrased certified question in the affirmative and hold that Florida’s statutory cap on noneconomic damages is unconstitutional as applied to wrongful death actions.

III. Disagreement with the Plurality Opinion

Although I agree with many aspects of the plurality opinion and with the ultimate conclusion as to the unconstitutionality of the statute, I cannot join in all of the plurality’s legal analysis. In particular, my disagreement stems from my view that our precedent does not allow this Court to engage in the type of expansive review of the Legislature’s factual and policy findings that the plurality engages in when undertaking a constitutional rational basis analysis.

I emphasize that I have no reason to question the plurality’s excellent scholarship regarding the flaws in the Legislature’s conclusions as to the existence of a medical malpractice crisis. See plurality op. at 18-28 (Lewis, J.). In my view, however, the rational basis test articulated by this Court, based on precedent from the United States Supreme Court, is a deferential standard. As explained by this Court in Echarte, 618 So. 2d at 196, “the Legislature’s factual and policy findings are presumed correct” in a rational basis analysis unless there has been a showing made that the findings are “clearly erroneous.” – 54 –

The plurality relies on a case, North Florida Women’s Health and Counseling Services, Inc. v. State, 866 So. 2d 612, 627 (Fla. 2003), involving a fundamental right, for the proposition that “courts must conduct their own inquiry” of the Legislature’s findings. See plurality op. at 21 (Lewis, J.). My primary disagreement with the plurality’s analysis begins with the extensive discussion that questions the “alleged medical malpractice crisis” and relies on North Florida Women’s Health to support the plurality’s review of available data to consider the “factors and circumstances involved.” Plurality op. at 18, 21 (Lewis, J.).

North Florida Women’s Health involved the fundamental right to privacy, which required strict scrutiny review, rather than rational basis review, and in North Florida Women’s Health, a trial court had made findings of fact based on a trial where both parties had the opportunity to present evidence on the underlying issues. See N. Fla. Women’s Health, 866 So. 2d at 616. Although the plurality capably demonstrates that the Legislature’s conclusions as to the existence of a medical malpractice crisis may be questionable, I respectfully conclude that there is simply no precedent for this Court to engage in its own independent evaluation and reweighing of the facts and legislative policy findings, as done by the plurality, when conducting a rational basis analysis.

The plurality asserts that Warren v. State Farm Mutual Automobile Insurance Co., 899 So. 2d 1090, 1095 (Fla. 2005), stands for the proposition that – 55 –

the rational basis test envisions judicial consideration of the existing factors and circumstances to determine whether the legislative findings were fully supported. My review of Warren and the cases on which it relied, however, reveals that this Court has never engaged in the type of expansive, independent review when conducting a rational basis inquiry that the plurality undertakes in this case. Instead, as Warren explained, the rational basis test must be undertaken “in a light deferential to the Legislature’s action.” Warren, 899 So. 2d at 1096.

Accordingly, in my view, despite the plurality’s thoughtful and scholarly approach to analyzing the alleged justification for the medical malpractice crisis, there has been no showing made in this case that the Legislature’s findings as to the existence of a crisis at that time were “clearly erroneous.” Echarte, 618 So. 2d at 196. I emphasize again, however, that I agree with many aspects of the plurality opinion, particularly the conclusion that the arbitrary reduction of survivors’ noneconomic damages in wrongful death cases based on the number of survivors lacks a rational relationship to the goal of reducing medical malpractice premiums.

IV. Conclusion

Based on the above, I concur with the plurality’s decision to hold the cap on wrongful death noneconomic damages in medical malpractice actions unconstitutional but do not join in all of the plurality opinion’s reasoning.

QUINCE and PERRY, JJ., concur.- 56 –

POLSTON, C.J., dissenting.

I respectfully dissent because the plurality disregards the rational basis standard prescribed by our precedent as well as the Legislature’s policy role under Florida’s constitution. The Legislature’s policy choice of enacting a cap of $1 million on noneconomic damages in medical malpractice cases involving death is rationally related to the legitimate state interest of decreasing medical malpractice insurance rates and increasing the affordability and availability of health care in Florida. Therefore, under our precedent, the cap does not violate Florida’s constitutional guarantee of equal protection. It also does not violate the access to courts, jury trial, and separation of powers provisions of the Florida Constitution. Accordingly, I would answer the four certified questions posed by the Eleventh Circuit Court of Appeals in the negative.

I. Background

Justice Lewis’ plurality opinion accurately quotes the Eleventh Circuit’s description of Michelle McCall’s tragic death following the birth of her son. Ms. McCall’s parents and her son’s father (on behalf of her son) filed suit against the United States pursuant to the Federal Tort Claims Act (FTCA), which provides that the United States is liable for torts to the same extent as a private individual would be under the applicable state’s law. Estate of McCall v. United States, 642 F.3d 944, 947 (11th Cir. 2011); Estate of McCall v. United States, 663 F. Supp. 2d – 57 –

1276, 1288 (N.D. Fla. 2009). After a two-day bench trial, the federal district court ruled that the United States was liable for Ms. McCall’s death and found that “Plaintiffs’ economic damages, or financial losses, amounted to $980,462.40.” McCall, 642 F.3d at 947. Additionally, the federal district court “found that Plaintiffs’ noneconomic damages, or nonfinancial losses, totaled $2 million, including $500,000 for Ms. McCall’s son and $750,000 for each of her parents.” Id. The federal district court then applied Florida’s statutory cap pursuant to section 766.118(2), Florida Statutes (2005), to limit Plaintiffs’ recovery for noneconomic damages to an aggregate of $1 million. Id. The $1 million capped amount for noneconomic damages “will be equitably divided among the eligible survivors in proportion to their respective awards.” McCall, 663 F. Supp. 2d at 1295. The federal district court “also denied Plaintiffs’ motion challenging the constitutionality of Florida’s statutory cap under both the Florida and United States Constitutions.” McCall, 642 F.3d at 947.

On appeal, the Eleventh Circuit considered multiple constitutional challenges to Florida’s statutory cap on noneconomic damages. First, the Eleventh Circuit applied rational basis review to hold that Florida’s cap does not violate the equal protection clause of the Fourteenth Amendment to the United States Constitution. Id. at 950-51. The Eleventh Circuit reasoned as follows:

Plantiffs ask us to second guess the legislature’s judgment in enacting a “per incident” rather than “per claimant” statutory cap. However, – 58 – , 508 U.S. at 313. The legislature identified a legitimate governmental purpose in passing the statutory cap, namely to reduce the cost of medical malpractice premiums and health care. Fla. Stat. § 766.201. The means that Florida chose, a per incident cap on noneconomic damages, bears a rational relationship to that end. The Florida legislature could reasonably have concluded that such a cap would reduce damage awards and in turn make medical malpractice insurance more affordable and healthcare more available.

“equal protectionis not a licensefor courts to judge the wisdom,

fairness, or logic oflegislative choices.” Beach Commc’ns, Inc., 508

U.S. at 313. Thelegislatureidentified alegitimategovernmental purpose in passing the statutory cap, namely to reducethe cost ofmedicalmalpractice premiums andhealth care.SeeFla. Stat. §

766.201. Themeans thatFlorida chose, a per incident cap onnoneconomic damages, bears a rational relationship to that end. The Florida legislature could reasonablyhave concluded that such a capwould reduce damage awards andin turnmake medicalmalpractice insurance more affordable andhealthcare more available.

 

Id.at 951. The Eleventh Circuit also rejected the plaintiffs’ argument that the capfails rational basis reviewbecause “the Florida legislature ‘hadno objective,factual basisfor believing’ that a cap on noneconomic damages . . . would reduce the cost ofmedicalmalpractice insurance.” Id.at 950. To the contrary, theEleventh Circuit foundthe Legislature issued a report on theissue,held publichearings, heard expert testimony, and reviewed another report prepared by theGovernor’s Task Force that recommendeda per incident capto remedy the problem.Id.at 950-51.

Additionally, the Eleventh Circuit held that the cap onnoneconomic damages does not constitute a taking eitherunder theFifth Amendment to theUnited States Constitution orunder section6 of article X of theFloridaConstitution.Id.at 951. The Eleventh Circuit stated that the cap does notdeprivethe plaintiffs of a vested right, explainingthat the cap was enacted in 2003 before the medicalmalpractice at issue in the case took place in 2006.Id.

-58 — 59 –

Finally, rather than deciding the plaintiffs’ remaining challenges to the cap under the Florida Constitution, the Eleventh Circuit certified to this Court the following questions:

(1) Does the statutory cap on noneconomic damages, Fla. Stat. § 766.118, violate the right to equal protection under Article I, Section 2 of the Florida Constitution?

(2) Does the statutory cap on noneconomic damages, Fla. Stat. § 766.118, violate the right of access to the courts under Article I, Section 21 of the Florida Constitution?

(3) Does the statutory cap on noneconomic damages, Fla. Stat. § 766.118, violate the right to trial by jury under Article I, Section 22 of the Florida Constitution?

(4) Does the statutory cap on noneconomic damages, Fla. Stat. § 766.118, violate the separation of powers guaranteed by Article II, Section 3 and Article V, Section 1 of the Florida Constitution?

Id. at 952-53.

II. Florida’s Caps on Noneconomic Damages

Section 766.118, Florida Statutes (2005), places limitations on noneconomic damages11 in medical malpractice cases, and the limitations vary depending upon the circumstances. For cases involving the negligence of practitioners providing

11. Section 766.202(8), Florida Statutes (2005), defines noneconomic damages as “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.”  – 60 – nonemergency care, the limitation is $500,000 per claimant, per incident, and per practitioner:

With respect to a cause of action for personal injury or wrongful death arising from medical negligence of practitioners, regardless of the number of such practitioner defendants, noneconomic damages shall not exceed $500,000 per claimant. No practitioner shall be liable for more than $500,000 in noneconomic damages, regardless of the number of claimants.

§ 766.118(2)(a), Fla. Stat. (2005). If the negligence resulted in death or a permanent vegetative state, the cap rises to $1 million:

Notwithstanding paragraph (a), if the negligence resulted in a permanent vegetative state or death, the total noneconomic damages recoverable from all practitioners, regardless of the number of claimants, under this paragraph shall not exceed $1 million.

§ 766.118(2)(b), Fla. Stat. (2005). The cap also rises to $1 million dollars in the absence of death or a permanent vegetative state if the trial court determines that a manifest injustice would occur or if the negligence resulted in a catastrophic injury. Id. However, section 766.118(2)(c), Florida Statutes (2005), emphasizes that “[t]he total noneconomic damages recoverable by all claimants from all practitioner defendants under this subsection shall not exceed $1 million in the aggregate.”

For cases involving nonpractitioners providing nonemergency care, the limitation is $750,000. § 766.118(3)(a), Fla. Stat. (2005). This cap rises to $1.5 million if the negligence caused a permanent vegetative state or death or if the trial – 61 –

court determines that a manifest injustice would occur or if the trier of fact determines that a catastrophic injury resulted. § 766.118(3)(b), Fla. Stat. (2005). And section 766.118(3)(d), Florida Statutes (2005), provides that “[t]he total noneconomic damages recoverable by all claimants from all nonpractitioner defendants under this subsection shall not exceed $1.5 million in the aggregate.”

These limitations on noneconomic damages are part of an overall legislative plan enacted in 2003 to address the rising costs of medical liability insurance and the affordability and availability of healthcare in Florida. See ch. 2003-416, Laws of Fla. Other components of the plan include new healthcare facilities regulations, insurance regulation, license requirements, and agency requirements. Id.

The legislative effort began with the convening of the House Select Committee on Medical Liability Insurance, which “conducted an inquiry into the possible causes and potential solutions to the vexing problems associated with the availability of medical liability insurance in Florida.” Fla. H. Select Comm. on Med. Liab. Ins., Select Comm. on Med. Liab. Ins. Rep., at 2 (March 2003) (available at Fla. Dept. of State, Fla. State Archives, Tallahassee, Fla.). The Select Committee examined “how the reduced availability of affordable medical liability insurance affects the availability of medical services” and was “mindful of the need to maintain the right of access to redress when citizens are harmed during the delivery of medical services.” Id. at 3. The Select Committee held a series of – 62 –

meetings in Tallahassee, held four hearings outside the capital, and published an 82 page report (not including appendices). Id. It “received testimony from experts in each of the professional areas impacted” and reviewed records from efforts to address prior crises. Id. at 4.

The Select Committee also reviewed the record of the Governor’s Select Task Force on Health Care Professional Liability Insurance, which produced a “345 page report as well as thirteen volumes of supportive materials.” Id. at 9. The Governor’s Task Force “undertook a comprehensive review of published studies and relevant literature” and held ten meetings at which it received extensive testimony and information. Gov.’s Select Task Force on Healthcare Prof. Liab. Ins., Gov.’s Task Force on Healthcare Prof. Liab. Ins. Rep., at 3, iv (2003). The five members of the Governor’s Task Force were (1) John Hitt, President of University of Central Florida, (2) Richard Beard, Trustee of University of South Florida, (3) Marshall Criser, Jr., President Emeritus of University of Florida, (4) Fred Gainous, President of Florida A&M University, and (5) Donna Shalala, President of University of Miami. Id. at 3. In the end, the Legislature based many of its findings and its policies upon the work of the Governor’s Task Force, including the per incident cap on noneconomic damages. See, e.g., ch. 2003-416, § 1, Laws of Fla. – 63 –

Specifically, when enacting chapter 2003-416, Laws of Florida, the Legislature made the following findings:

(1) The Legislature finds that Florida is in the midst of a medical malpractice insurance crisis of unprecedented magnitude.

(2) The Legislature finds that this crisis threatens the quality and availability of health care for all Florida citizens.

(3) The Legislature finds that the rapidly growing population and the changing demographics of Florida make it imperative that students continue to choose Florida as the place they will receive their medical educations and practice medicine.

(4) The Legislature finds that Florida is among the states with the highest medical malpractice insurance premiums in the nation.

(5) The Legislature finds that the cost of medical malpractice insurance has increased dramatically during the past decade and both the increase and the current cost are substantially higher than the national average.

(6) The Legislature finds that the increase in medical malpractice liability rates is forcing physicians to practice medicine without professional liability insurance, to leave Florida, to not perform high-risk procedures, or to retire early from the practice of medicine.

(7) The Legislature finds that there are certain elements of damage presently recoverable that have no monetary value, except on a purely arbitrary basis, while other elements of damage are either easily measured on a monetary basis or reflect ultimate monetary loss.

(8) The Governor created the Governor’s Select Task Force on Healthcare Professional Liability Insurance to study and make recommendations to address these problems.

(9) The Legislature has reviewed the findings and recommendations of the Governor’s Select Task Force on Healthcare Professional Liability Insurance.

(10) The Legislature finds that the Governor’s Select Task Force on Healthcare Professional Liability Insurance has established that a medical malpractice crisis exists in the State of Florida which can be alleviated by the adoption of comprehensive legislatively enacted reforms. – 64 –

(11) The Legislature finds that making high-quality health care available to the citizens of this state is an overwhelming public necessity.

(12) The Legislature finds that ensuring that physicians continue to practice in Florida is an overwhelming public necessity.

(13) The Legislature finds that ensuring the availability of affordable professional liability insurance for physicians is an overwhelming public necessity.

(14) The Legislature finds, based upon the findings and recommendations of the Governor’s Select Task Force on Healthcare Professional Liability Insurance, the findings and recommendations of various study groups throughout the nation, and the experience of other states, that the overwhelming public necessities of making quality health care available to the citizens of this state, of ensuring that physicians continue to practice in Florida, and of ensuring that those physicians have the opportunity to purchase affordable professional liability insurance cannot be met unless a cap on noneconomic damages is imposed.

(15) The Legislature finds that the high cost of medical malpractice claims can be substantially alleviated by imposing a limitation on noneconomic damages in medical malpractice actions.

(16) The Legislature further finds that there is no alternative measure of accomplishing such result without imposing even greater limits upon the ability of persons to recover damages for medical malpractice.

(17) The Legislature finds that the provisions of this act are naturally and logically connected to each other and to the purpose of making quality health care available to the citizens of Florida.

(18) The Legislature finds that each of the provisions of this act is necessary to alleviate the crisis relating to medical malpractice insurance.

III. Equal Protection

McCall argues that Florida’s cap of $1 million on noneconomic damages pursuant to section 766.118(2)(b), Florida Statutes, violates the right to equal protection under the Florida Constitution by imposing additional burdens when an – 65 –

act of medical negligence gives rise to multiple claims as well as when the negligent act causes severe injuries. However, under the rational basis test our precedent requires, McCall’s argument is without merit.

Article I, section 2 of the Florida Constitution provides that “[a]ll natural persons, female and male alike, are equal before the law. . . .” Florida’s courts have interpreted this provision consistently with interpretations of the equal protection clause of the United States Constitution. See, e.g., Duncan v. Moore, 754 So. 2d 708, 712 (Fla. 2000); Sasso v. Ram Prop. Mgmt., 431 So. 2d 204, 211 (Fla. 1st DCA 1983).

As this Court explained in Duncan, 754 So. 2d at 712 (citations omitted),

[e]qual protection is not violated merely because some persons are treated differently than other persons. It only requires that persons similarly situated be treated similarly. In the absence of a fundamental right or a protected class, equal protection demands only that a distinction which results in unequal treatment bear some rational relationship to a legitimate state purpose. This is known as the rational basis test.

In this case, McCall argues that section 766.118(2)(b)’s cap on noneconomic damages creates unequal treatment between those with noneconomic damages over the cap and those with noneconomic damages under the cap, claiming that the most severely injured are discriminated against. McCall also claims that the per incident cap creates a discriminatory classification between those who are members of larger families and those who are not. Because these alleged classifications do not – 66 –

involve a protected class or a fundamental right, McCall’s equal protection claim must be analyzed using the rational basis test.

“Under a ‘rational basis’ standard of review a court should inquire only whether it is conceivable that the regulatory classification bears some rational relationship to a legitimate state purpose[:]”

The burden is upon the party challenging the statute or regulation to show that there is noconceivable factual predicate which would rationally support the classification under attack. Where the challenging party fails to meet this difficult burden, the statute or regulation must be sustained.

Fla. High Sch. Activities Ass’n v. Thomas, 434 So. 2d 306, 308 (Fla. 1983); see also Westerheide v. State, 831 So. 2d 93, 112 (Fla. 2002). It is not the judiciary’s task under the rational basis standard “to determine whether the legislation achieves its intended goal in the best manner possible, but only whether the goal is legitimate and the means to achieve it are rationally related to the goal.” Loxahatchee River Envtl. Control Dist. v. Sch. Bd. of Palm Beach Cnty., 496 So. 2d 930, 938 (Fla. 4th DCA 1986).

This Court has employed the rational basis test in its prior decisions involving equal protection challenges to limitations on damages in medical malpractice cases. For example, in Pinillos v. Cedars of Lebanon Hospital Corp., 403 So. 2d 365 (Fla. 1981), this Court applied a rational basis analysis when rejecting an equal protection challenge under both the Florida and federal – 67 –

constitutions to a statute that required judgments in medical malpractice actions to be reduced by amounts received from collateral sources. This Court explained that the Legislature, when enacting the statute, had determined that there was a medical malpractice liability insurance crisis in Florida that was threatening public health. Pinillos, 403 So. 2d at 367. Then, this Court concluded that “the classification created by section 768.50[, Florida Statutes (1979),] bears a reasonable relationship to the legitimate state interest of protecting the public health by ensuring the availability of adequate medical care for the citizens of this state.” Id. at 368.

In 1993, in a case primarily denying an access to courts challenge, this Court held that caps on noneconomic damages in certain medical malpractices cases did not violate equal protection under either the United States or Florida constitutions. See Univ. of Miami v. Echarte, 618 So. 2d 189 (Fla. 1993) (“[W]e have also considered the other constitutional claims and hold that the statutes do not violate the right to trial by jury, equal protection guarantees, substantive or procedural due process rights, the single subject requirement, the taking clause, or the non-delegation doctrine.”). The statutes at issue in Echarte capped noneconomic damages in medical malpractice cases at $250,000 if the parties agreed to arbitrate. Id. at 193 (describing section 766.207(7), Fla. Stat. (Supp. 1988)). They also capped noneconomic damages at $350,000 if the plaintiff proceeded to trial after – 68 –

refusing a defendant’s offer to arbitrate. Id. (describing section 766.209(4), Fla. Stat. (Supp. 1988)).

Thereafter, in April 2000, this Court held that the statute precluding adult children from recovering noneconomic damages for a parent’s death due to medical malpractice did not violate the equal protection guarantees of the Florida and federal constitutions. See Mizrahi v. N. Miami Med. Ctr., 761 So. 2d 1040 (Fla. 2000). In Mizrahi, this Court employed the rational basis test and explained that “the Legislature referred to and discussed the medical malpractice crisis and its adverse impact on the accessibility of health care during the passage of section 768.21.” Id. at 1042. And this Court stated that it had previously recognized the medical malpractice crisis as a legitimate state interest in Echarte. Id. at 1042 n.3. This Court further explained that “limiting claims that may be advanced by some claimants would proportionally limit claims made overall and would directly affect the cost of providing health care by making it less expensive and more accessible.” Id. at 1043. Thus, because the exclusion is rationally related to controlling costs and healthcare accessibility, the statute at issue in Mizrahi did not violate equal protection. Id.

But, in June 2000, this Court in dicta expressed equal protection concerns about the noneconomic damages caps that had previously passed constitutional muster in Echarte. See St. Mary’s Hosp. v. Phillipe, 769 So. 2d 961 (Fla. 2000). – 69 –

In Phillipe, this Court held that the noneconomic damages caps under section 766.207 applied to claimants individually rather than on a per incident basis. 769 So. 2d at 972. In reaching this holding, this Court first concluded that “section 766.207(7)(b) is neither clear nor unambiguous.” Id. at 968. Then, this Court found that the Legislature’s intent with the statute was to “provide substantial incentives to claimants and defendants to voluntarily submit their cases to binding arbitration” and that this intent “can be obtained by interpreting section 766.207(7)(b) so that each claimant is fairly and reasonably compensated for his or her pain and suffering.” Id. at 970. Moreover, this Court stated, “were we to interpret the noneconomic damages cap to apply to all claimants in the aggregate, we conclude that such an interpretation would create equal protection concerns.” Id. at 971. Thus, this Court mentioned in Phillipe that “[d]ifferentiating between a single claimant and multiple claimants bears no rational relationship to the Legislature’s stated goal of alleviating the financial crisis in the medical liability insurance industry.” Id.

However, this Court very recently rejected a challenge that was nearly identical to the equal protection concern this Court had mentioned in Phillipe. Specifically, in Samples v. Florida Birth-Related Neurological Injury Compensation Ass’n, 114 So. 3d 912, 917 (Fla. 2013), the Samples argued that the $100,000 parental award under the Florida Birth-Related Injury Compensation – 70 –

Plan violated equal protection under the Florida and federal constitutions because “those parents who apply for an award alone can receive twice the amount awarded to parents who share or split a parental award.” Applying the rational basis test, this Court in Samples concluded that “[l]imiting the parental award to $100,000 per claim—as opposed to per parent—is rationally related to maintaining the actuarial soundness of the Plan.” Id. Therefore, this Court upheld the statutory provision. Id.

Similar to this Court’s precedent, the Third, Fourth, Fifth, Sixth, Ninth, and Eleventh Circuits have all upheld limitations on noneconomic damages in medical malpractice cases against equal protection challenges. See McCall, 642 F.3d at 951; Smith v. Botsford Gen. Hosp., 419 F.3d 513, 520 (6th Cir. 2005) (“By limiting at least one component of health care costs, the noneconomic damages limitation is rationally related to its intended purpose.”) (quoting Zdrojewski v. Murphy, 657 N.W.2d 721, 739 (Mich. Ct. App. 2002)); Boyd v. Bulala, 877 F.2d 1191, 1197 (4th Cir. 1989) (holding that cap on all damages, including economic damages, does not deny equal protection because it “bears a reasonable relation to a valid legislative purpose—the maintenance of adequate health care services in the Commonwealth of Virginia”); Davis v. Omitowoju, 883 F.2d 1155, 1158 (3d Cir. 1989) (“Clearly the Virgin Island’s decision to curb, through legislation, the high costs of malpractice insurance and thereby promote quality medical care to – 71 –

the residents of the islands, provides a rational basis for capping the amount of damages that can be awarded a plaintiff.”); Lucas v. United States, 807 F.2d 414, 422 (5th Cir. 1986) (“Lucas has failed to convince us that there is no reasonable basis for the Texas legislature to conclude that this ceiling on recovery from certain institutions is not conceivably related to the availability and cost of malpractice insurance and that such insurance and the distribution of medical care in Texas are not conceivably linked.”); Hoffman v. United States, 767 F.2d 1431, 1437 (9th Cir. 1985) (“The record clearly supports a finding that the California Legislature had a ‘plausible reason’ to believe that the limitations on noneconomic recovery would limit the rise in malpractice insurance costs.”).

Additionally, multiple state courts have rejected equal protection challenges to statutory caps on noneconomic damages. See, e.g., Fein v. Permanente Med. Grp., 695 P.2d 665 (Cal. 1985); Zdrojewski v. Murphy, 657 N.W.2d 721 (Mich. Ct. App. 2002); Adams v. Children’s Mercy Hosp., 832 S.W.2d 898 (Mo. 1992), overruled on other grounds by Watts v. Lester E. Cox Med. Ctrs., 376 S.W.3d 633, 636 (Mo. 2012); Judd v. Drezga, 103 P.3d 135 (Utah 2004); Etheridge v. Med. Ctr. Hosps., 376 S.E.2d 525 (Va. 1989); Robinson v. Charleston Area Med. Ctr. Inc., 414 S.E.2d 877 (W. Va. 1991).

Applying our rational basis precedent, it is clear that the statutory cap in this case passes constitutional muster. When enacting the noneconomic damages cap – 72 –

at issue here, the Legislature found that “Florida is in the midst of a medical malpractice insurance crisis of unprecedented magnitude” and that “this crisis threatens the quality and availability of health care for all Florida citizens.” Ch. 2003-416, at § 1. The Legislature concluded that the “cost of medical malpractice insurance has increased dramatically during the past decade” and that “both the increase and the current cost are substantially higher than the national average.” Id. As a result, physicians are being forced “to practice medicine without professional liability insurance, to leave Florida, to not perform high-risk procedures, or to retire early from the practice of medicine.” Id.

This Court has previously recognized the existence of a medical malpractice insurance crisis as a legitimate state interest. See Mizrahi, 761 So. 2d at 1042 n.3; Echarte, 618 So. 2d at 196-97. Further, it is undisputed that increasing the quality, availability, and affordability of health care for Floridians is a legitimate state interest. And the Legislature’s policy choice of enacting a cap on noneconomic damages in medical malpractice cases is rationally related to these state interests. As this Court explained in Mizrahi, 761 So. 2d at 1043, “limiting claims that may be advanced by some claimants would proportionally limit claims made overall and would directly affect the costs of providing health care by making it less expensive and more accessible.” In fact, “it is hard to conceive a more rational means of assuaging the fear of huge damage awards and reining in insurance costs – 73 –

in the case of a victim’s death than by limiting noneconomic wrongful death damages.” Maurin v. Hall, 682 N.W.2d 866, 890-91 (Wis. 2004).

More specifically, the Florida Legislature could have rationally believed that the cap on noneconomic damages under section 766.118(2)(b) would reduce malpractice damage awards, which would thereby increase predictability in the medical malpractice insurance market and lead to reduced insurance premiums. Then, as a result of decreased insurance premiums, physicians would be more willing to stay in Florida and perform high-risk procedures at a lower cost to Floridians.12

12. In fact, the Governor’s Task Force, upon which the Legislature expressly relied, concluded as much:

[I]mposing caps on non-economic damages in medical malpractice cases will significantly reduce the exposure of Florida healthcare providers to risk of loss from jury awards of inherently subjective damages. Such a reduction of risk will make malpractice losses much more predictable, and thereby lead to stability in malpractice insurance premium rates.

A reduction in potential liability and resulting stability will encourage more malpractice insurers to participate in the Florida market. This, along with the reduced exposure to risk, will permit insurers to charge lower premiums, on a sound financial basis. Lower premiums will encourage providers (particularly those in high-risk specialties) to offer healthcare services to Floridians, and persons visiting this state, and to do so at lower prices.

Gov.’s Task Force Report, at xvii.

McCall contends that the cap at issue in this case violates Florida’s equal protection guarantee because it applies on a per incident, rather than a per claimant, – 74 –

basis. However, the Legislature could have reasonably believed that a per incident cap would more effectively reduce noneconomic damages awards and create more stability in the insurance market than a per claimant cap would. A per incident cap leads to more predictability in the insurance market since the noneconomic damages cannot exceed the cap in any particular instance of malpractice regardless of the number of individual claimants. And the Legislature could have reasonably believed that this increased predictability would more effectively decrease medical malpractice insurance rates, thereby keeping more physicians in Florida to provide more access to quality health care (including high-risk procedures) at a lower cost to Floridians.

As a federal district court ably stated when rejecting a similar per incident argument regarding the same statutory cap at issue here,

[t]he aggregate limit on non-economic damages—applying to each incident regardless of the number of claimants—serves precisely the same legitimate interest served by individual caps: by reducing damage awards, limits on damages make medical malpractice insurance more affordable and quality healthcare services more available. A cap applicable to each occurrence, in cooperation with caps individually applicable to each claimant, reduces damage awards as a matter of mathematical certainty, enhances needed predictability, places a calculable limit on the exposure of healthcare and insurance providers, reduces malpractice insurance premiums, and promotes the availability of quality healthcare.

M.D. v. United States, 745 F. Supp. 2d 1274, 1280-81 (M.D. Fla. 2010).- 75 –

McCall also argues that the noneconomic damages cap violates equal protection because the more severely injured may not recover their full damages, unlike those whose damages fall under the cap. However, if this were an equal protection violation, no cap on damages could survive equal protection review because all caps have that effect. And this Court has rejected equal protection challenges to caps on damages previously. See Echarte, 618 So. 2d 189; see also Phillipe, 769 So. 2d 961. In fact, in Echarte, this Court rejected an equal protection challenge under the Florida Constitution to statutory caps on noneconomic damages when the parties and amici advanced the precise argument that McCall raises here, namely that the noneconomic damages cap discriminated against the most severely injured. Therefore, under this Court’s precedent, McCall’s equal protection argument based upon the fact that some may not fully recover is without merit. Ultimately, “the Legislature simply may have felt that it was fairer to malpractice plaintiffs in general to reduce only the very large noneconomic damage awards, rather than to diminish the more modest recoveries for pain and suffering and the like in the great bulk of cases.” Fein, 695 P.2d at 683.

Rather than applying the analysis prescribed by our precedent, the plurality concludes that the statutory cap is “unfair” and “purely arbitrary” by citing two other state supreme courts and improperly relying on dicta from our decision in Phillipe, while ignoring the fact that this Court in Samples very recently rejected – 76 –

an argument that was nearly identical to the dicta expressed in Phillipe. See plurality op. at 9-13 (Lewis, J.).

Even more disturbingly, and as acknowledged by Justice Pariente to be inappropriate and unprecedented,13 Justice Lewis’ plurality opinion addresses McCall’s equal protection challenge by conducting a de novo review of medical malpractice issues, overruling the findings made by the Legislature, and disregarding the evidence upon which those findings were based. Justice Lewis’ plurality opinion reweighs the evidence and disbelieves the Governor’s Task Force as well as the legislative testimony, claiming that its own independent review has revealed that the other two branches were incorrect and that a “bona fide medical malpractice crisis” probably did not and certainly does not currently exist. See id. at 18-28, 35-40. Additionally, despite the Legislature’s and the Task Force’s conclusions on the matter after reviewing the evidence, this plurality’s independent review has revealed that the “available data” “failed to establish a direct correlation between damage caps and reduced malpractice premiums.” Id. at 28, 35.

13. See concurring in result op. at 54 (Pariente, J.) (“[T]here is simply no precedent for this Court to engage in its own independent evaluation and reweighing of the facts and legislative policy findings, as done by the plurality, when conducting a rational basis analysis.”).  – 77 –

While the plurality clearly would have come to a different policy choice than the Legislature based upon the hardly unambiguous data14 that the plurality could cull from the record and the internet, that is not the point. Instead, our precedent dictates that we employ the rational basis test, which is a relatively easy test for a statute to pass and which recognizes and respects the Legislature’s role as the primary policymaker in our constitutional system. See McElrath v. Burley, 707 So. 2d 836, 839 (Fla. 1st DCA 1998) (explaining that the rational basis test provides “minimal scrutiny” under which the challenger bears “a heavy burden”); see also Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307, 314 (1976) (“This inquiry employs a relatively relaxed standard reflecting the Court’s awareness that the drawing of lines that create distinctions is peculiarly a legislative task and an unavoidable one.”). In fact, the rational basis standard is less stringent than the deferential competent substantial evidence standard we employ when reviewing

14. Justice Lewis notes that medical malpractice filings have decreased significantly since fiscal year 2003-04 and that Florida, according to a 2011 report, is now retaining a fairly high percentage of Florida-trained medical students. See plurality op. at 36-37 (Lewis, J.). While he uses this information to support the plurality’s argument that the statutory caps are no longer justified because a medical malpractice crisis does not currently exist, this information just as easily (and perhaps more likely) supports the argument that the cap has had its intended effect and that, if the cap is eliminated, the medical malpractice crisis would return in full force.  – 78 – Under the rational basis standard, there just has to be a conceivable factual predicate that would provide a rational reason for the Legislature to have done what it chose to do. See Fla. High School Activities Ass’n, 434 So. 2d at 308 (“The burden is upon the party challenging the statute . . . to show that there is no conceivable factual predicate which would rationally support the classification under attack. . . .”). The statute does not need to be supported by unequivocal evidence in the record from the point in time when the statute was enacted or by more recent and allegedly authoritative reports posted on the internet. In other words, as Justice Pariente’s concurring in result opinion recognizes, this Court is not supposed to conduct an independent review of available data. See Heller v. Doe, 509 U.S. 312, 320 (1993) (“A State, moreover, has no obligation to produce evidence to sustain the rationality of a statutory classification. ‘[A] legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.’ ”) (quoting F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 315 (1993)). Rather, if – 79 – we can conceive of a possible factual predicate that provides a rational basis in furtherance of a legitimate state interest, the statute does not violate the equal protection provision of the Florida Constitution.

Here, applying the proper rational basis test, it is clear that the cap on noneconomic damages passes muster because it is rationally related to the legitimate state interest of decreasing medical malpractice insurance rates and increasing the affordability and availability of health care in Florida. Accordingly, I would answer the Eleventh Circuit’s equal protection question in the negative and then address its access to courts, jury trial, and separation of powers questions.

IV. Access to Courts

Relying on this Court’s decision in Smith v. Department of Insurance, 507 So. 2d 1080 (Fla. 1987), McCall contends that section 766.118(2)’s $1 million cap on noneconomic damages does not satisfy the access to court test set forth in Kluger v. White, 281 So. 2d 1 (Fla. 1973). I would hold otherwise.

Section 21 of article I of the Florida Constitution provides that “[t]he courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.” In Kluger, 281 So. 2d at 4, this Court enunciated the following test for determining whether a statute violates this constitutional guarantee:

[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 – 80 –

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. § 2.01, F.S.A., the Legislature is without power to abolish such a right without providing a reasonable alternative to protect 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.

In other words, to survive an access to courts challenge, a statute eliminating redress for an injury must satisfy at least one of two possible prongs: (1) either the statute must provide a reasonable alternative to redress the injury involved, or (2) the Legislature must show that there was “an overpowering public necessity for the abolishment” and that there was “no alternative method of meeting such public necessity.” Id.

In Echarte, 618 So. 2d 189, this Court applied the second prong from Kluger to hold that the statutory caps on noneconomic damages in medical malpractice cases when a party requests arbitration do not violate the right of access to courts. Specifically, this Court upheld the $250,000 cap on noneconomic damages if the parties agree to voluntary binding arbitration as well as the $350,000 cap if the plaintiff refuses a defendant’s offer to arbitrate. In its analysis, this Court in Echarte ruled that the first Kluger alternative was satisfied because “[t]he defendant’s offer to have damages determined by an arbitration panel provides the claimant with the opportunity to receive prompt recovery without the risk and uncertainty of litigation or having to prove fault in a civil trial.” Echarte, 618 So. – 81 –

2d at 194. Next, this Court held that “[e]ven if the medical malpractice arbitration statutes at issue did not provide a commensurate benefit, we would find that the statutes satisfy the second prong of Kluger.” Id. at 195.

In Echarte, this Court explained that the judiciary exercises restraint when reviewing the legislative findings necessary to satisfy the second prong of Kluger. Specifically, this Court stated the “legislative determinations of public purpose and facts are presumed correct and entitled to deference, unless clearly erroneous.” Id. at 196. This Court explained that “[t]he Legislature has the final word on declarations on public policy, and the courts are bound to give great weight to legislative determinations of facts.” Id.

This Court in Echarte began its discussion of the legislative showing of an overwhelming public necessity by explaining that the preamble to the statute at issue “clearly states the Legislature’s conclusion that the current medical malpractice insurance crisis constitutes an ‘overpowering public necessity.’ ” Id. This Court also noted that the “Legislature made a specific factual finding that ‘[m]edical malpractice liability insurance premiums have increased dramatically in recent years, resulting in increased unavailability of malpractice insurance for some physicians.’ ” Id. (quoting § 766.201(1)(a)). Then, this Court concluded that the Legislature’s findings were supported by the work of the Academic Task Force for Review of the Insurance and Tort Systems, which found, among other things, – 82 –

that “a family physician who performs no surgery and practiced outside Dade and Broward Counties saw a 229% increase in medical malpractice insurance premiums.” Id. This Task Force had based its findings upon seven public hearings and meetings as well as surveys, research projects, and a literature review. Id. at 196 n.17. Based upon this record, this Court concluded that “the Legislature has shown that an ‘overpowering public necessity’ exists.” Id. at 196-97.

Additionally, despite the lack of an express legislative finding on the matter, this Court in Echarte held that “the record supports the conclusion that no alternative or less onerous method exists.” Id. at 197. This Court noted that “in determining whether no alternative means exists to meet the public necessity of ending the medical malpractice crisis, the plan as a whole, rather than focusing on one specific part of the plan, must be considered.” Id. This Court explained that the Task Force believed that “reforms of the civil justice system, of the medical regulatory system, and of the insurance system complement each other” and that “all are necessary to address the complex problems with multiple causes” of the medical malpractice insurance crisis. Id. (quoting the Task Force’s recommendations to the Legislature). And this Court in Echarte rejected the contention that professional discipline alone would have been an alternative method to meet the public necessity at issue, explaining that “the Task Force specifically found that: ‘[s]trengthened regulation of medical care providers is not – 83 –

a substitute for tort and insurance reform.’ ” Id. (quoting Task Force). “The Task Force specifically stated that even though a small percentage of the physicians were responsible for 42.2% of the total claims paid out, the facts did not support the conclusion that these doctors were incompetent.” Id. Thus, because 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,” this Court in Echarte held that the second prong of Kluger was satisfied. Id.

Similar to Echarte, the Legislature when enacting the statute at issue in this case expressly found that “Florida is in the midst of a medical malpractice insurance crisis of unprecedented magnitude” and that “making high-quality health care available to the citizens of this state,” “ensuring that physicians continue to practice in Florida,” and “ensuring the availability of affordable professional liability insurance for physicians” are overwhelming public necessities. Ch. 2003-416, at § 1. The Legislature specifically found that “Florida is among the states with the highest medical malpractice insurance premiums in the nation” and that “the cost of medical malpractice insurance has increased dramatically during the past decade and both the increase and the current cost are substantially higher than the national average.” Id. Further, the Legislature determined that “the increase in medical malpractice liability insurance rates is forcing physicians to practice – 84 –

medicine without professional liability insurance, to leave Florida, to not perform high-risk procedures, or to retire early from the practice of medicine.” Id.

These Legislative findings of an overwhelming public necessity are supported by the determinations of the Governor’s Task Force. For example, in its report, the Governor’s Task Force concluded that the cost of medical malpractice insurance had increased dramatically, explaining the following particulars:

In 2002 the average medical malpractice premium per doctor in Florida was 55 percent higher than the national average. Florida’s average insurance premiums have increased 64 percent since 1996 while nationally the average insurance premiums have increased 26 percent.

Gov.’s Task Force Rep. at v. The Task Force received specific testimony indicating that “[i]n Georgia, physicians pay from $5,000 to $6,000 for $1,000,000 of coverage. Thirty miles south, in Jacksonville, that costs $27,000.” Id. at 76. And the Task Force noted that:

[t]he Professional Medical Insurance Services, Inc., underwriters for Florida physicians, estimates that, in 2003, for OB/GYNs who presently have coverage, costs for $1 million dollar[s] of coverage will average between $70,000 and $110,000 per year; $250,000 of coverage will cost between $50,000 and $60,000 per year. For OB/GYNs seeking new insurance in 2003, estimates show that $1 million dollars in coverage will cost $150,000 per year[] and $250,000 in coverage will cost between $90,000 and $107,000 per year. As a result of these escalating costs, physicians are simply either under insuring or becoming uninsured with regard to their practices.

Id. at 306. The Task Force found that “[i]n Miami, evidence reflects that 80 percent of the OB/GYNs carry no insurance and those who do are paying over – 85 –

$207,000 per year for $1 million dollars worth of coverage.” Id. And “[t]he number of insurance companies writing medical malpractice policies in Florida went from a high of sixty-six companies in 1999 to twelve currently.” Id. at v. The Task Force also described testimony indicating that, as a result of these issues, over half the doctors in Florida that carry insurance can only afford to carry a $250,000 policy even though the most prevalent rate in the rest of the country is for a doctor to carry a $1,000,000 policy. Id. at 76. The Task Force further found that “[t]he concern over litigation and the cost and lack of medical malpractice insurance have caused doctors to discontinue high-risk procedures, turn away high-risk patients, close practices, and move out of the state.” Id. at vi. Indeed, “[i]n Broward County alone, 400 physicians have left the state, or retired early in the past year.” Id. at 72. The Task Force learned that “[i]n one instance, a Fort Lauderdale pediatric orthopedic surgeon’s premiums went from $32,000 to $96,000 a year.” Id. Due to this increase, the surgeon reported a plan “to return to his home state, Louisiana, as that state has tort reform.” Id. Therefore, because the Legislature’s factual and policy findings are presumed correct (as explained in Echarte), and because (as in Echarte) these findings are supported by the work of the Governor’s Task Force, the Legislature has shown the existence of an “overpowering public necessity.” – 86 –

Regarding the “no alternative method” showing necessary to satisfy the second prong of Kluger, the Legislature expressly found that “the overwhelming public necessities of making quality health care available to the citizens of this state, of ensuring that physicians continue to practice in Florida, and of ensuring that those physicians have the opportunity to purchase affordable professional liability insurance cannot be met unless a cap on noneconomic damages is imposed.” Ch. 2003-416, at § 1(14), Laws of Fla. The Legislature determined that “the high cost of medical malpractice claims can be substantially alleviated by imposing a limitation on noneconomic damages” and that “there is no alternative measure of accomplishing such result without imposing even greater limits upon the ability of persons to recover damages for medical malpractice.” Ch. 2003-416, at § 1(15), (16), Laws of Fla. The Legislature also found that “each of the provisions of this act is necessary to alleviate the crisis relating to medical malpractice insurance.” Ch. 2003-416, at § 1(18), Laws of Fla.

The record supports these legislative findings and determinations. For instance, the Governor’s Task Force stated that, “without the inclusion of a cap on potential awards of non-economic damages in the package, no legislative reform plan can be successful in achieving a goal of controlling increases in healthcare costs and thereby promoting improved access to healthcare.” Gov.’s Task Force – 87 –

Rep. at 218. The Task Force noted that various other alternatives had been tried previously without success:

Since 1975, Florida has implemented (or attempted to implement) numerous alternatives to the cap on non-economic damages and the other reforms recommended in this Report. None, alone or together with the others, has solved the crisis of medical malpractice insurance availability and affordability. Instead, Florida’s numerous attempts to solve this problem are nothing more than a failed litany of alternatives.

Id. at 219.

The Task Force explained that “one of the primary drivers of the current medical malpractice crisis is that a large percentage of medical malpractice losses (77 percent in Florida) apply to non-economic damages (i.e., pain and suffering).” Id. at 212. The Task Force also stated its belief that “caps on non-economic damages are particularly effective, because they limit the escalation of awards for pain and suffering, which fuels large increases for all awards and settlements.” Id. In fact, the Task Force thought that a cap on noneconomic damages was so important to alleviating the crisis and lowering premiums that it recommended a $250,000 per incident cap on noneconomic damages, rather than the $1 million per incident cap at issue in this case. See id. at xi. Based upon this record, the Legislature has shown that “no alternative or less onerous method exists.” Echarte, 618 So. 2d at 197.- 88 –

Accordingly, because the Legislature has shown an overpowering public necessity for the cap on noneconomic damages and that there is no alternative method of meeting the public necessity, the second prong of Kluger (as applied in Echarte) is satisfied. Therefore, section 766.118(2)(b) does not violate the right of access to court guaranteed by the Florida Constitution.

V. Jury Trial

McCall also contends that the cap on noneconomic damages violates the right to a jury trial guaranteed by the Florida Constitution. However, I would disagree and therefore answer the Eleventh Circuit’s certified question in the negative.

Article I, section 22 of the Florida Constitution provides that “[t]he right of trial by jury shall be secure to all and remain inviolate.” Florida’s “first constitution of 1838, which became effective upon Florida’s admittance to the Union in 1845, and all subsequent constitutions have contained similar provisions.” In re 1978 Chevrolet Van, 493 So. 2d 433, 434 (Fla. 1986). Thus, section 22 of article I “guarantees the right to trial by jury in those cases in which the right was enjoyed at the time this state’s first constitution became effective in 1845.” Id.

This right to a jury trial is not implicated here because survivors of a wrongful death did not have the right to recover noneconomic damages in 1845. – 89 –

“It is well known that at common law the cause of action died with the person and that a parent had no right of action as parent for the wrongful death of a minor child.” Klepper v. Breslin, 83 So. 2d 587, 592 (Fla. 1955). Parents only gained this statutory right in 1899. Id. at 591. Other survivors were not entitled to recover pain and suffering damages until the Legislature enacted the Wrongful Death Act in 1972. See ch. 72-35, Laws of Fla.; Lifemark Hosps. of Fla., Inc. v. Afonso, 4 So. 3d 764, 769 (Fla. 3d DCA 2009) (“A survivor’s right to recover pain and suffering did not become part of the Wrongful Death Act until 1972. . . .”); see also Martin v. United Sec. Servs., Inc., 314 So. 2d 765, 767-68 (Fla. 1975) (describing the damages that were recoverable before and after the enactment of the Wrongful Death Act in 1972). Therefore, because the petitioners would not have had the right to recover damages from Ms. McCall’s death in 1845, the cap on noneconomic damages under section 766.118(2)(b) does not violate the right to a jury trial guaranteed by the Florida Constitution.

VI. Separation of Powers

Lastly, McCall contends that the cap on noneconomic damages violates the Florida Constitution’s provision ensuring separation of powers because the cap amounts to an impermissible legislative remittitur. I would reject this argument.

Article II, section 3 of the Florida Constitution provides that “[t]he powers of the state government shall be divided into legislative, executive and judicial – 90 –

branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.” As this Court has explained, “[g]enerally, the Legislature is empowered to enact substantive law while [the judicial branch] has the authority to enact procedural law.” Massey v. David, 979 So. 2d 931, 936 (Fla. 2008). Therefore, “[i]f a statute is clearly substantive and operates in an area of legitimate legislative concern, this Court will not hold that it constitutes an unconstitutional encroachment on the judicial branch.” Id. at 937.

In Rowlands v. Signal Construction Co., 549 So. 2d 1380, 1381-82 (Fla. 1989) (footnote omitted), this Court explained remittitur as follows:

In its classic sense, the term “remittitur” means nothing more than “[t]he procedural process by which a verdict of the jury is diminished by subtraction.” Black’s Law Dictionary 1164 (5th ed. 1979). Indeed, when remittitur was created in 1822 by Justice Story, it was for the express purpose of subtracting a specific amount from an excessive verdict if the plaintiff wanted to avoid the court’s alternative new-trial order. Blunt v. Little, 3 F. Cas. 760, 762 (No. 1578) (C.C.A. Mass. 1822). See Note, Remittitur Practice in the Federal Courts, 76 Colum. L. Rev. 299, 300 (1976) (discussing history of remittitur). Thus, remittitur is proper where liability clearly exists, but the total dollar amount of damages is merely excessive.

In other words, “remittitur operates as a procedural device to bring the damages back within the outer bounds of law.” Rowlands, 549 So. 2d at 1382 n.1.

Here, the challenged cap does not invade the province of the judiciary because it does not operate as a legislative remittitur. The statutory cap establishes – 91 –

a limit to noneconomic damages in medical malpractice cases generally. It does not perform the judiciary’s function of reviewing the specific support for particular damage awards in individual cases. Accordingly, “[b]ecause the challenged law does not purport to vest the Legislature with authority to make a fact intensive, case-by-case determination of the propriety of damage awards in individual cases, it does not usurp the authority of the judiciary.” M.D., 745 F. Supp. 2d at 1281.

Moreover, in Smith, 507 So. 2d at 1092, this Court rejected the argument that statutory limitations on punitive damages violated Florida’s separation of powers provision. See also Echarte, 618 So. 2d at 191 (holding that the caps on noneconomic damages in medical malpractice cases where a party offers arbitration do not violate “the non-delegation doctrine”); Cauley, 403 So. 2d at 387 (holding that caps on damages in tort cases against municipalities do not violate “the separation of powers rule”). This Court in Smith explained that “[w]hen the legislature enacted these provisions, it was addressing the substantive rights of plaintiffs and defendants in civil litigation actions with regard to recovery of damages.” 507 So. 2d at 1092. This Court also approved the following reasoning the trial court employed when rejecting the separation of powers claim:

Sections 51 and 52 deal with the subject of punitive damages. Section 51 defines the conditions the plaintiff must meet to recover punitive damages. Section 52 limits the amount of punitive damages available in certain civil actions. In addition, section 52 specifies who shall receive any punitive damages so awarded. Section 51 is clearly substantive because it sets the standard for establishing a claim for – 92 –

punitive damages. The legislature, which has the authority to abolish punitive damages can surely set the standard for establishing such claims. The Court is of the view that both sections create substantive rights and further that any procedural provisions of these sections are intimately related to the definition of those substantive rights.

Id. at 1092 n.10.

Like the punitive damages statute at issue in Smith, the statutory cap on noneconomic damages at issue here addresses the substantive rights of parties with regard to the recovery of damages. And because section 766.118(2)(b) addresses substantive rights, it does not violate the separation of powers clause of the Florida Constitution.

VII. Conclusion

As explained above, the plurality chooses to disregard the rational basis standard prescribed by our precedent as well as the Legislature’s policy role under Florida’s constitution. Under our precedent, Florida’s per incident cap for a wrongful death action does not violate Florida’s constitutional guarantees of equal protection, access to courts, jury trial, and separation of powers. Therefore, I would answer the certified questions from the Eleventh Circuit in the negative. I respectfully dissent.

CANADY, J., concurs.

Certified Question of Law from the United States Court of Appeals for the

for Amicus Curiae The American Bar Association

George S. Christian, Austin, Texas,

for Amicus Curiae Texas Civil Justice League

 

 

Title XLV
TORTS

Chapter 766
MEDICAL MALPRACTICE AND RELATED MATTERS

View Entire Chapter

766.118?Determination of noneconomic damages.—(1)?DEFINITIONS.—As used in this section, the term:(a)?“Catastrophic injury” means a permanent impairment constituted by:1.?Spinal cord injury involving severe paralysis of an arm, a leg, or the trunk;2.?Amputation of an arm, a hand, a foot, or a leg involving the effective loss of use of that appendage;

3.?Severe brain or closed-head injury as evidenced by:

a.?Severe sensory or motor disturbances;

b.?Severe communication disturbances;

c.?Severe complex integrated disturbances of cerebral function;

d.?Severe episodic neurological disorders; or

e.?Other severe brain and closed-head injury conditions at least as severe in nature as any condition provided in sub-subparagraphs a.-d.;

4.?Second-degree or third-degree burns of 25 percent or more of the total body surface or third-degree burns of 5 percent or more to the face and hands;

5.?Blindness, defined as a complete and total loss of vision; or

6.?Loss of reproductive organs which results in an inability to procreate.

(b)?“Noneconomic damages” means noneconomic damages as defined in s. 766.202(8).

(c)?“Practitioner” means any person licensed under chapter 458, chapter 459, chapter 460, chapter 461, chapter 462, chapter 463, chapter 466, chapter 467, or chapter 486 or certified under s. 464.012. “Practitioner” also means any association, corporation, firm, partnership, or other business entity under which such practitioner practices or any employee of such practitioner or entity acting in the scope of his or her employment. For the purpose of determining the limitations on noneconomic damages set forth in this section, the term “practitioner” includes any person or entity for whom a practitioner is vicariously liable and any person or entity whose liability is based solely on such person or entity being vicariously liable for the actions of a practitioner.

(2)?LIMITATION ON NONECONOMIC DAMAGES FOR NEGLIGENCE OF PRACTITIONERS.—

(a)?With respect to a cause of action for personal injury or wrongful death arising from medical negligence of practitioners, regardless of the number of such practitioner defendants, noneconomic damages shall not exceed $500,000 per claimant. No practitioner shall be liable for more than $500,000 in noneconomic damages, regardless of the number of claimants.

(b)?Notwithstanding paragraph (a), if the negligence resulted in a permanent vegetative state or death, the total noneconomic damages recoverable from all practitioners, regardless of the number of claimants, under this paragraph shall not exceed $1 million. In cases that do not involve death or permanent vegetative state, the patient injured by medical negligence may recover noneconomic damages not to exceed $1 million if:

1.?The trial court determines that a manifest injustice would occur unless increased noneconomic damages are awarded, based on a finding that because of the special circumstances of the case, the noneconomic harm sustained by the injured patient was particularly severe; and

2.?The trier of fact determines that the defendant’s negligence caused a catastrophic injury to the patient.

(c)?The total noneconomic damages recoverable by all claimants from all practitioner defendants under this subsection shall not exceed $1 million in the aggregate.

(3)?LIMITATION ON NONECONOMIC DAMAGES FOR NEGLIGENCE OF NONPRACTITIONER DEFENDANTS.—

(a)?With respect to a cause of action for personal injury or wrongful death arising from medical negligence of nonpractitioners, regardless of the number of such nonpractitioner defendants, noneconomic damages shall not exceed $750,000 per claimant.

(b)?Notwithstanding paragraph (a), if the negligence resulted in a permanent vegetative state or death, the total noneconomic damages recoverable by such claimant from all nonpractitioner defendants under this paragraph shall not exceed $1.5 million. The patient injured by medical negligence of a nonpractitioner defendant may recover noneconomic damages not to exceed $1.5 million if:

1.?The trial court determines that a manifest injustice would occur unless increased noneconomic damages are awarded, based on a finding that because of the special circumstances of the case, the noneconomic harm sustained by the injured patient was particularly severe; and

2.?The trier of fact determines that the defendant’s negligence caused a catastrophic injury to the patient.

(c)?Nonpractitioner defendants are subject to the cap on noneconomic damages provided in this subsection regardless of the theory of liability, including vicarious liability.

(d)?The total noneconomic damages recoverable by all claimants from all nonpractitioner defendants under this subsection shall not exceed $1.5 million in the aggregate.

(4)?LIMITATION ON NONECONOMIC DAMAGES FOR NEGLIGENCE OF PRACTITIONERS PROVIDING EMERGENCY SERVICES AND CARE.—Notwithstanding subsections (2) and (3), with respect to a cause of action for personal injury or wrongful death arising from medical negligence of practitioners providing emergency services and care, as defined in s. 395.002(9), or providing services as provided in s. 401.265, or providing services pursuant to obligations imposed by 42 U.S.C. s. 1395dd to persons with whom the practitioner does not have a then-existing health care patient-practitioner relationship for that medical condition:

(a)?Regardless of the number of such practitioner defendants, noneconomic damages shall not exceed $150,000 per claimant.

(b)?Notwithstanding paragraph (a), the total noneconomic damages recoverable by all claimants from all such practitioners shall not exceed $300,000.

The limitation provided by this subsection applies only to noneconomic damages awarded as a result of any act or omission of providing medical care or treatment, including diagnosis that occurs prior to the time the patient is stabilized and is capable of receiving medical treatment as a nonemergency patient, unless surgery is required as a result of the emergency within a reasonable time after the patient is stabilized, in which case the limitation provided by this subsection applies to any act or omission of providing medical care or treatment which occurs prior to the stabilization of the patient following the surgery.

(5)?LIMITATION ON NONECONOMIC DAMAGES FOR NEGLIGENCE OF NONPRACTITIONER DEFENDANTS PROVIDING EMERGENCY SERVICES AND CARE.—Notwithstanding subsections (2) and (3), with respect to a cause of action for personal injury or wrongful death arising from medical negligence of defendants other than practitioners providing emergency services and care pursuant to obligations imposed by s. 395.1041 or s. 401.45, or obligations imposed by 42 U.S.C. s. 1395dd to persons with whom the practitioner does not have a then-existing health care patient-practitioner relationship for that medical condition:

(a)?Regardless of the number of such nonpractitioner defendants, noneconomic damages shall not exceed $750,000 per claimant.

(b)?Notwithstanding paragraph (a), the total noneconomic damages recoverable by all claimants from all such nonpractitioner defendants shall not exceed $1.5 million.

(c)?Nonpractitioner defendants may receive a full setoff for payments made by practitioner defendants.

The limitation provided by this subsection applies only to noneconomic damages awarded as a result of any act or omission of providing medical care or treatment, including diagnosis that occurs prior to the time the patient is stabilized and is capable of receiving medical treatment as a nonemergency patient, unless surgery is required as a result of the emergency within a reasonable time after the patient is stabilized, in which case the limitation provided by this subsection applies to any act or omission of providing medical care or treatment which occurs prior to the stabilization of the patient following the surgery.

(6)?LIMITATION ON NONECONOMIC DAMAGES FOR NEGLIGENCE OF A PRACTITIONER PROVIDING SERVICES AND CARE TO A MEDICAID RECIPIENT.—Notwithstanding subsections (2), (3), and (5), with respect to a cause of action for personal injury or wrongful death arising from medical negligence of a practitioner committed in the course of providing medical services and medical care to a Medicaid recipient, regardless of the number of such practitioner defendants providing the services and care, noneconomic damages may not exceed $300,000 per claimant, unless the claimant pleads and proves, by clear and convincing evidence, that the practitioner acted in a wrongful manner. A practitioner providing medical services and medical care to a Medicaid recipient is not liable for more than $200,000 in noneconomic damages, regardless of the number of claimants, unless the claimant pleads and proves, by clear and convincing evidence, that the practitioner acted in a wrongful manner. The fact that a claimant proves that a practitioner acted in a wrongful manner does not preclude the application of the limitation on noneconomic damages prescribed elsewhere in this section. For purposes of this subsection:

(a)?The terms “medical services,” “medical care,” and “Medicaid recipient” have the same meaning as provided in s. 409.901.

(b)?The term “practitioner,” in addition to the meaning prescribed in subsection (1), includes any hospital, ambulatory surgical center, or mobile surgical facility as defined and licensed under chapter 395.

(c)?The term “wrongful manner” means in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property, and shall be construed in conformity with the standard set forth in s. 768.28(9)(a).

(7)?SETOFF.—In any case in which the jury verdict for noneconomic damages exceeds the limits established by this section, the trial court shall reduce the award for noneconomic damages within the same category of defendants in accordance with this section after making any reduction for comparative fault as required by s. 768.81 but before application of a setoff in accordance with ss. 46.015 and 768.041. In the event of a prior settlement or settlements involving one or more defendants subject to the limitations of the same subsection applicable to a defendant remaining at trial, the court shall make such reductions within the same category of defendants as are necessary to ensure that the total amount of noneconomic damages recovered by the claimant does not exceed the aggregate limit established by the applicable subsection. This subsection is not intended to change current law relating to the setoff of economic damages.

(8)?ACTIONS GOVERNED BY SOVEREIGN IMMUNITY LAW.—This section shall not apply to actions governed by s. 768.28.

History.—s. 54, ch. 2003-416; s. 204, ch. 2007-230; s. 28, ch. 2011-135.

 

SC11-1148 Estate of Michelle Evette McCall, et al. v. United State of America –
Attorney Service List

Initial Brief – filed 08/02/11
Amicus Initial Brief (FJA) – filed 08/08/11
Amicus Initial Brief (TCJ) – filed 07/28/11
Amicus Initial Brief (ABA) – filed 08/05/11
Amicus Initial Brief (FPP) – filed 08/10/11
Amicus Initial Brief (NV) – filed 08/08/11
Answer Brief – filed 09/21/11
Attorney Service List
Amicus Answer Brief (Christopher Nuland) – filed 09/22/11
Amicus Answer Brief (A.G. of Florida) – filed 09/26/11
Amicus Answer Brief (Florida Medical Association) – filed 09/26/11
Amicus Answer Brief (Florida Hospital Associations & Safety Net Hospitcal Alliance) – filed 09/26/11
Amicus Answer Brief (Justice Reform Institute) – filed 09/27/11
Amicus Answer Brief (Florida College of Emergency Physicians) – filed 09/27/11
Amicus Answer Brief (Department of Health) – filed 09/27/11
Amicus Answer Brief (Professor Rubin) -filed 09/27/11
Amicus Answer Brief (Civil Justice Association of California) – filed 09/28/11
Amicus Answer Brief (Coral Gables Hospital, Inc.) – filed 09/28/11
Attorney Service List
Amicus Answer Brief (HCA Health Services) – filed 10/07/11
Attorney Service List
Reply Brief – filed 11/07/11

 

 

 

 

642 F.3d 944 (2011)

ESTATE OF Michelle Evette McCALL, By and Through Co-Personal Representatives Edward M. McCALL II, Margarita F. McCall and Jason Walley, Edward M. McCall, Margarita F. McCall, Jason Walley, Plaintiffs-Appellants,
v.
UNITED STATES of America, Defendant-Appellee.

No. 09-16375.
United States Court of Appeals, Eleventh Circuit.
May 27, 2011.
945*945 Robert S. Peck, Center for Constitutional Litigation, PC, Washington, DC, Henry T. Courtney, Sara Courtney Baigorri, Courtney Law Firm, Coral Gables, FL, for Plaintiffs-Appellants.

Daniel J. Lenerz, Thomas M. Bondy, U.S. Dept. of Justice, Civ. Div., Washington, DC, Pamela A. Moine, Pensacola, FL, E. Bryan Wilson, Tallahassee, FL, for Defendant-Appellee.

George Nicholas Meros, Jr., Allen C. Winsor, Andy V. Bardos, Gray Robinson, P.A., Tallahassee, FL, for amicus curiae.

Before EDMONDSON, and MARTIN, Circuit Judges, and HODGES,[*] District Judge.

946*946 MARTIN, Circuit Judge:

The central question presented in this appeal is whether Florida’s cap on noneconomic medical malpractice damages, Fla. Stat. § 766.118, violates the Florida or United States Constitutions. The Estate of Michelle McCall, Ms. McCall’s parents, and the father of Ms. McCall’s son (collectively “Plaintiffs”) also appeal the District Court’s application of that statutory cap. After thorough review and having had the benefit of oral argument, we conclude that the District Court did not err in applying the cap. We also conclude that Florida’s statutory cap passes muster under the Equal Protection Clause of the Fourteenth Amendment and the Takings Clause of the Fifth Amendment of the United States Constitution as well as the Takings Clause of Article X, § 6(a) of the Florida Constitution. Because no Florida Supreme Court decisions provide controlling guidance to resolve Plaintiffs’ other challenges to this cap on noneconomic medical malpractice damages under that state’s Constitution, we grant, in part, Plaintiffs’ motion to certify questions to the Florida Supreme Court.

I.

During June 2005, Michelle McCall received prenatal medical care at a United States Air Force clinic as an Air Force dependent. Ms. McCall opted for the Air Force’s family practice department to provide primary prenatal care and delivery services throughout her pregnancy. She had a healthy and normal pregnancy until the last trimester. On February 21, 2006, test results revealed that Ms. McCall’s blood pressure was high and that she was suffering from severe preeclampsia. Ms. McCall’s serious condition required that labor be induced immediately.

Instead of transferring Ms. McCall to the OB/GYN department, the family practice department continued to provide medical care. The Air Force hospital was temporarily unavailable for obstetric and delivery services, so members of the family practice department transferred Ms. McCall to the Fort Walton Beach Medical Center instead. There, Air Force family practice doctors treated Ms. McCall for hypertension and induced labor. When Ms. McCall dilated to five centimeters, her contractions slowed and became weaker. The Air Force family practice doctors treating Ms. McCall called an Air Force obstetrician, Dr. Archibald, and asked if he could perform a cesarean section. Dr. Archibald reported that he was performing another surgery and would not be available to perform a cesarean section on Ms. McCall until after he finished that surgery. The Air Force family practice doctors prepared Ms. McCall for a cesarean section but did not call other obstetricians to determine if one was available to provide immediate medical care.

On February 22, 2006, Dr. Archibald finally arrived to perform the cesarean section, but Ms. McCall’s contractions had resumed and the Air Force family practice doctors decided to allow Ms. McCall to deliver vaginally. Dr. Archibald left the Fort Walton Medical Center. On February 23, 2006 at 1:25 a.m., Ms. McCall delivered a healthy baby boy. Family members who visited Ms. McCall after the delivery expressed concerns about the amount of blood Ms. McCall had lost during delivery. Medical personnel assured these family members that Ms. McCall was stable.

Thirty-five minutes later, when the placenta had not delivered as expected, two family practice doctors from the family practice department tried without success to manually extract the placenta. An Air Force nurse anesthetist administered additional epidural pain relief and gave Ms. 947*947 McCall two separate doses of Morphine intravenously. Around 2:35 a.m., the family practice department doctors called Dr. Archibald, the obstetrician, for assistance when they could not remove the placenta manually.

Ms. McCall’s blood pressure began to drop rapidly and remained dangerously low over the next two and a half hours. The Air Force nurse anesthetist monitoring Ms. McCall’s vital signs did not notify the family practice doctors of the drop in Ms. McCall’s blood pressure. Dr. Archibald arrived at 2:45 a.m. and removed the placenta within five minutes. The family practice department doctors informed Dr. Archibald that Ms. McCall had not lost much blood during delivery. Dr. Archibald, however, noticed severe vaginal lacerations and worked to repair them over the next hour. During that time, the Air Force nurse anesthetist monitored Ms. McCall’s vital signs, reported to Dr. Archibald that they were stable, and failed to inform him that Ms. McCall’s blood pressure was dangerously low and continuing to drop. Dr. Archibald never checked the vital signs himself and relied exclusively on the nurse to inform him of any blood pressure changes or problems.

At 3:50 a.m. when Dr. Archibald finished his work, he requested an immediate blood count and, if needed, a transfusion to compensate for the blood Ms. McCall lost during the procedure. Forty minutes later, the family practice department physician ordered the blood count test. Forty minutes after that, and over an hour after Dr. Archibald had requested immediate blood work, a nurse attempted to draw blood from Ms. McCall. Ms. McCall was unresponsive. She had gone into shock and cardiac arrest as a result of severe blood loss. It is not clear how long Ms. McCall had been in this state, since no one had monitored her or checked her status for the hour following Dr. Archibald’s procedure. Ms. McCall never regained consciousness and was removed from life support on February 27, 2006.

II.

Plaintiffs sued the United States under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-80. After a two-day bench trial, the District Court found the United States liable under the FTCA because the negligence of its employees proximately caused Ms. McCall’s death. The District Court found that Plaintiffs’ economic damages, or financial losses, amounted to $980,462.40. The court found that Plaintiffs’ noneconomic damages, or nonfinancial losses, totaled $2 million, including $500,000 for Ms. McCall’s son and $750,000 for each of her parents.

The District Court applied Florida’s statutory cap on noneconomic damages for medical malpractice claims and limited Plaintiffs’ recovery of noneconomic damages to $1 million. See Fla. Stat. § 766.118(2). The District Court rejected Plaintiffs’ argument that they were entitled to the full $2 million in noneconomic damages because they could recover under both the $1 million cap for “practitioners” and the $1.5 million cap for “nonpractitioners.” The Court also denied Plaintiffs’ motion challenging the constitutionality of Florida’s statutory cap under both the Florida and United States Constitutions.

Plaintiffs next filed a motion to alter or amend the judgment. Plaintiffs renewed their argument that they were entitled to recover up to $2.5 million under Florida’s statutory cap. They argued that the District Court should have held the Eglin Air Force Base Hospital vicariously liable, as a “nonpractitioner,” for the negligence of its practitioner employees. The District Court denied Plaintiffs’ motion after finding that if the United States was vicariously 948*948 liable for the negligence of its employees, any damages recoverable from it would be subject to Florida’s $1 million cap for “practitioners.” Thus, the court determined that Plaintiffs’ recoverable noneconomic damages remained capped at $1 million.

On appeal, Plaintiffs challenge the District Court’s rulings on both the application and constitutionality of Florida’s cap on noneconomic damages for medical malpractice claims. Plaintiffs argue that Florida’s statutory cap violates the Equal Protection Clause of Fourteenth Amendment and constitutes a taking in violation of the Fifth Amendment of the United States Constitution. Plaintiffs also argue that the cap violates the following provisions of the Florida Constitution: (1) the guarantee of separation of powers in Article II, § 3 and Article V, § 1; (2) the right to trial by jury under Article I, § 22; (3) the right of access to the courts under Article I, § 21; (4) the right to equal protection under Article I, § 2; and (5) the prohibition against a taking of property without just compensation under Article X, § 6. We address each of these issues in turn, reviewing the district court’s conclusions of law de novo and the district court’s factual findings for clear error. See Proudfoot Consulting Co. v. Gordon, 576 F.3d 1223, 1230 (11th Cir.2009).

III.

We first address whether the District Court properly applied Florida’s cap on noneconomic damages. For a personal injury or wrongful death claim arising from the medical negligence of “practitioners,” Florida’s statute provides:

(a) [R]egardless of the number of such practitioner defendants, noneconomic damages shall not exceed $500,000 per claimant. No practitioner shall be liable for more than $500,000 in noneconomic damages, regardless of the number of claimants.

(b) Notwithstanding paragraph (a), if the negligence resulted in a permanent vegetative state or death, the total noneconomic damages recoverable from all practitioners, regardless of the number of claimants, under this paragraph shall not exceed $1 million . . . .

(c) The total noneconomic damages recoverable by all claimants from all practitioner defendants under this subsection shall not exceed $1 million in the aggregate.

Fla. Stat. § 766.118(2). The statute includes a similar provision for claims against nonpractitioners. That provision limits noneconomic damages to $750,000 per claimant, or $1.5 million in the aggregate recoverable by all claimants against all nonpractitioner defendants. Fla. Stat. § 766.118(3). The statute defines a “practitioner” as:

any person licensed under chapter 458, chapter 459, chapter 460, chapter 461, chapter 462, chapter 463, chapter 466, chapter 467, or chapter 486 or certified under s. 464.012 . . . any association, corporation, firm, partnership, or other business entity under which such practitioner practices or any employee of such practitioner or entity acting in the scope of his or her employment . . . any person or entity for whom a practitioner is vicariously liable and any person or entity whose liability is based solely on such person or entity being vicariously liable for the actions of a practitioner.

Fla. Stat. § 766.118(1)(c). The statute does not define the term “nonpractitioner.”

On appeal Plaintiffs argue for the first time that they should have recovered $1 million against Eglin Air Force Base Hospital as a nonpractitioner because it “is independently liable for its own breaches 949*949 of duty under Florida law” for its “systemic” negligence. Plaintiffs waived that argument by failing to raise it before the District Court. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir.2004) (“[A]n issue not raised in the district court and raised for the first time in an appeal will not be considered by this court.” (quotation marks omitted)). Plaintiffs did not allege in their complaint that the hospital itself was directly liable for its negligent actions independent of those of its employees. Nor did Plaintiffs raise that argument in their motion to alter or amend the judgment. Rather, in that motion Plaintiffs argued that the hospital should be held vicariously liable for the negligence of its employees.

The District Court properly found that any noneconomic damages recoverable from the hospital based on its vicarious liability fell within the $1 million cap for “practitioners.” Florida’s statute expressly provides that “the term `practitioner’ includes . . . any person or entity whose liability is based solely on such person or entity being vicariously liable for the actions of a practitioner.” Fla. Stat. § 766.118(1)(c). The District Court also correctly characterized the certified registered nurse anesthetist, the family practice doctors and the obstetrician who provided Ms. McCall’s medical care at the Fort Walton Beach Medical Center as “practitioners.”[2] See Fla. Stat. §§ 766.118(1)(c), 464.012, 458.311.

The District Court was correct in finding that Plaintiffs did not establish that Ms. McCall’s death resulted from the negligence of a “nonpractitioner.” As the District Court observed, Plaintiffs’ complaint did not identify any hospital staff or nurses by name except for the physicians, who are practitioners. The District Court also reported that “no evidence at trial singled out a specific nonpractitioner for negligent conduct.” Our independent review of the trial record confirms that finding. While Plaintiffs’ expert in obstetrics and gynecology opined about the negligence of the nurse anesthetist, family practice doctors and obstetrician who provided medical care to Ms. McCall, the expert did not discuss the potential negligence of any other members of the hospital staff. On this record, we conclude that the District Court did not err in applying Florida’s cap on noneconomic damages for medical malpractice claims.

IV.

Plaintiffs next challenge the cap under several provisions of the Florida and United States Constitutions. We first address Plaintiffs’ argument that the cap violates the United States Constitution. We then review Plaintiffs’ challenge to the cap under the Takings Clause of the Florida Constitution, Art. X, § 6, because Florida constitutional law on the matter is well settled. Florida constitutional law on the other provisions of the Florida Constitution under which Plaintiffs challenge the statutory cap, however, is unsettled. For this reason, we will certify several questions of state constitutional law to the Florida Supreme Court under its certification procedure.

A.

Plaintiffs argue that Florida’s statutory cap on noneconomic damages for medical malpractice claims violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. 950*950 Under the Equal Protection Clause, “[s]ocial and economic legislation . . . that does not employ suspect classifications or impinge on fundamental rights must be upheld against equal protection attack when the legislative means are rationally related to a legitimate governmental purpose.” Hodel v. Indiana, 452 U.S. 314, 331, 101 S.Ct. 2376, 2387, 69 L.Ed.2d 40 (1981); see also U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 175, 177, 101 S.Ct. 453, 459-60, 66 L.Ed.2d 368 (1980).

We reject Plaintiffs’ argument that strict or intermediate scrutiny applies to our review of the statute under the Equal Protection Clause of the United States Constitution. Plaintiffs have not identified how the statute burdens a fundamental right or draws a suspect classification under federal law. We therefore analyze whether Florida’s statutory cap is rationally related to a legitimate governmental purpose. See Hodel, 452 U.S. at 331, 101 S.Ct. at 2387. When applying rational basis review, we must uphold the statute against an equal protection challenge “if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 312, 313, 113 S.Ct. 2096, 2101, 124 L.Ed.2d 211 (1993). “[T]hose attacking the rationality of the legislative classification have the burden to negative every conceivable basis which might support it.” Id. at 315, 113 S.Ct. at 2102 (quotation marks omitted).

In enacting the statutory cap, the Florida legislature reported that a recent, dramatic increase in medical malpractice liability insurance premiums had increased the cost of medical care and decreased the availability of malpractice insurance. See Fla. Stat. § 766.201(1)(a). The legislature observed that “[t]he 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.” Id. § 766.201(1)(b). The legislature created the statutory cap on noneconomic damages in an effort to make malpractice insurance easier to obtain and reduce the cost of medical care. See id. § 766.201(1).

Plaintiffs argue that the statutory cap lacks a rational basis because the Florida legislature “had no objective, factual basis for believing” that a cap on noneconomic damages for medical malpractice claims would reduce the cost of medical malpractice insurance. That argument lacks merit. Before enacting the statutory cap, the Florida legislature’s Select Committee prepared a report on the issue. See Florida House of Representatives, Select Committee on Medical Liability Insurance Report (2003)[3] at 4. Before issuing the report the legislature held public hearings, heard expert testimony and reviewed a separate report prepared by Governor Bush’s Task Force on Healthcare Professional Liability Insurance. Id. The Task Force report set forth that health care providers were changing the scope of their practice, leaving 951*951 Florida, or retiring because of escalating medical malpractice premiums. Id. at 15. The Task Force recommended that the legislature create a “per incident” medical malpractice cap to remedy the problem. Id. at 55.

By their argument, Plaintiffs ask us to second guess the legislature’s judgment in enacting a “per incident” rather than “per claimant” statutory cap. However, “equal protection is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.” Beach Commc’ns, Inc., 508 U.S. at 313, 113 S.Ct. at 2101. The legislature identified a legitimate governmental purpose in passing the statutory cap, namely to reduce the cost of medical malpractice premiums and health care. See Fla. Stat. § 766.201. The means that Florida chose, a per incident cap on noneconomic damages, bears a rational relationship to that end. The Florida legislature could reasonably have concluded that such a cap would reduce damage awards and in turn make medical malpractice insurance more affordable and healthcare more available. We therefore conclude that Florida’s statutory cap on noneconomic damages for medical malpractice claims does not violate the Equal Protection Clause of the United States Constitution.

B.

Plaintiffs next argue that Florida’s statutory cap constitutes a taking of property without just compensation in violation of Article X, Section 6 of the Florida Constitution and the Fifth Amendment of the United States Constitution. We disagree. The Takings Clause of the United States Constitution provides that “private property” shall not “be taken for public use, without just compensation.” U.S. Const. Amend V. The Takings Clause “does not undertake … to socialize all losses, but those only which result from a taking of property.” United States v. Willow River Power Co., 324 U.S. 499, 502, 65 S.Ct. 761, 764, 89 L.Ed. 1101 (1945). “[A]lthough a vested cause of action is property and is protected from arbitrary interference, [a litigant] has no property, in the constitutional sense, in any particular form of remedy….” Gibbes v. Zimmerman, 290 U.S. 326, 332, 54 S.Ct. 140, 142, 78 L.Ed. 342 (1993) (analyzing challenge to a state statute under the Due Process Clause). Florida’s statutory cap does not interfere with a vested right. “No person has a vested interest in any rule of law, entitling him to insist that it shall remain unchanged for his benefit.” New York Cent. R.R. v. White, 243 U.S. 188, 198, 37 S.Ct. 247, 250, 61 L.Ed. 667 (1917). Moreover, Florida passed its statutory cap in 2003, long before the Plaintiffs’ cause of action for the medical negligence that took place in 2006 vested. See 2003 Fla. Sess. Law Serv. 416 (West). We therefore conclude that Florida’s cap does not constitute a taking under the United States Constitution.

Nor is the cap a taking under well-established Florida constitutional law. Florida’s Takings Clause provides that “[n]o private property shall be taken except for a public purpose and with full compensation therefor paid to each owner or secured by deposit in the registry of the court and available to the owner.” Fla. Const. Art. X, § 6(a). “Florida law is well established that the right to sue on an inchoate cause of action—one that has not yet accrued—is not a vested right because no one has a vested right in the common law ….” Raphael v. Shecter, 18 So.3d 1152, 1157 (Fla. 4th DCA 2009) (quotation marks omitted). Because Florida’s statutory cap does not deprive Plaintiffs of a vested right, there is no taking within the meaning of the Takings Clause of the Florida Constitution.

952*952 V.

Because this case raises important questions about the interpretation and application of Florida constitutional law in areas that remain unsettled, we will not decide Plaintiffs’ remaining state constitutional claims,[4] but rather will grant Plaintiffs’ motion to certify questions relating to those claims to the Florida Supreme Court.[5] See Fla. Const. art. V, § 3(b)(6); Fla. R.App. P. 9.150 (“On either its own motion or that of a party, … a United States court of appeals may certify a question of law to the Supreme Court of Florida if the answer is determinative of the cause and there is no controlling precedent of the Supreme Court of Florida.”). “Where there is doubt in the interpretation of state law, a federal court may certify the question to the state supreme court to avoid making unnecessary Erie guesses and to offer the state court the opportunity to interpret or change existing law.” Union Planters Bank, N.A. v. New York, 436 F.3d 1305, 1306 (11th Cir.2006) (quotation marks omitted). We certify the following questions to the Supreme Court of Florida:

(1) Does the statutory cap on noneconomic damages, Fla. Stat. § 766.118, violate the right to equal protection under Article I, Section 2 of the Florida Constitution?

(2) Does the statutory cap on noneconomic damages, Fla. Stat. § 766.118, violate the right of access to the courts under Article I, Section 21 of the Florida Constitution?

(3) Does the statutory cap on noneconomic damages, Fla. Stat. § 766.118, violate the right to trial by jury under Article I, Section 22 of the Florida Constitution?[6]

953*953 (4) Does the statutory cap on noneconomic damages, Fla. Stat. § 766.118, violate the separation of powers guaranteed by Article II, Section 3 and Article V, Section 1 of the Florida Constitution?

VI.

We affirm the district court’s application of Florida’s statutory cap on noneconomic damages. We also conclude that the cap comports with the Equal Protection and Takings Clauses of the United States Constitution. We conclude that the statute does not constitute a taking in violation of the Takings Clause of the Florida Constitution, and we grant Plaintiff’s motion to certify questions regarding Plaintiffs’ remaining challenges to the cap under state constitutional law to the Florida Supreme Court.

AFFIRMED, in part, and QUESTIONS CERTIFIED.

Plaintiffs’ Motion to Certify Questions, GRANTED, in part, and DENIED, in part.

[*] Honorable William Terrell Hodges, United States District Judge for the Middle District of Florida, sitting by designation.

[2] Plaintiffs conceded this point before the District Court and do not argue otherwise on appeal.

[3] Available at http://www.myfloridahouse.gov/ Sections/Documents/loaddoc.aspx? PublicationType=Committees&Committee Id=2147&Session=2003 & DocumentType= General% 20Publications&FileName=2103.pdf# xml= http://search/texis/search/pdfhi.txt?query= Report + of + Select + Committee + on + Medical + Liability + Insurance&pr=PROD_ MFHMain&rdepth=0&order=r&mode= admin&cq=&id=448e02b99 (last visited May 26, 2011). Pursuant to Internal Operating Procedure 10, Citation to Internet Materials in an Opinion, under Federal Rule of Appellate Procedure 36, a copy of the internet materials cited in this opinion is available at the Eleventh Circuit Court of Appeal’s Clerk’s Office.

[4] We deny Plaintiffs’ motion to certify questions about the constitutionality of the cap under the Taking Clause, Article X, Section 6(a), of the Florida Constitution and about the application of the cap to the facts of this case. We have addressed the merits of those claims under Florida law. We also deny Plaintiffs’ motion to certify a question about the constitutionality of the cap under the Due Process Clause, Article I, Section 9, of the Florida Constitution. Plaintiffs waived their due process claim by failing to address it on the merits in their briefs. See Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n. 6 (11th Cir. 1989) (noting that an issue is waived if the party fails to argue the merits of the issue in its briefs).

[5] particular phrasing used in the certified question is not to restrict the Supreme Court’s considerations of the problems involved and the issues as the Supreme Court perceives them to be in its analysis of the record certified in this case. This latitude extends to the Supreme Court’s restatement of the issue or issues and the manner in which the answers are to be given, whether as a comprehensive whole or in subordinate or even contingent parts.

Anderson v. Jackson Mun. Airport Auth., 645 F.2d 401, 403 n. 5 (5th Cir. 1981) (quotation marks omitted). In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted as binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981.

[6] The District Court concluded that “because this is an FTCA case, the plaintiffs had no right to trial by jury in the first place, and the court therefore has no occasion to consider [Plaintiffs’ argument that the cap violates the right to trial by jury].” Plaintiffs argue that the District Court did have occasion to consider their argument because the FTCA waives sovereign immunity and authorizes tort actions against the United States “in the same manner and to the same extent as a private individual under like circumstances.” See United States v. Orleans, 425 U.S. 807, 813, 96 S.Ct. 1971, 1975, 48 L.Ed.2d 390 (1976). Plaintiffs argue that, if the statutory cap violates the right to jury trial in state suits against private parties, the cap is void in the state courts, therefore, it is void in the FTCA context as well. We agree with Plaintiffs and therefore certify this question to the Florida Supreme Court.

 

 Medical malpractice cases are very rare, and they are very difficult to handle, to argue, to prove. This is why we only take the most serious medical malpractice cases. Mark handles Medical Malpractice cases in Tampa, St. Petersburg, Miami, Orlando, Tallahassee, Panama: Throughout the state of Florida.

 

Fluoride in Pinellas county’s drinking water

Personal Injury lawyer Mark Perenich

“Fluoride’s back!” Pt II

On the behalf of Mark Perenich :

Note that Mr. Perenich is not a medical Doctor.

Whether one thinks fluoride is good or bad one thing is for certain it is not like a normal food supplement. Even if a patient thought they were fluoride deficient and worried about dental carries, they could not go to a store and buy a bottle of fluoride tablets. They must get a prescription from a doctor and have it filled at pharmacy. This begs the question: If fluoride is so toxic that it must be handled as drug given on a prescription basis under the direction of a physician, why then should it be dumped indiscriminately in the water supply. Especially, in light of the fact adding fluoride to the water supply is practically medicating citizens without their consent? In medicine the same drug dose for a child or the elderly is different from that of a healthy adult. However, with placing fluoride in the water supply every one gets roughly the same dose of a prescription drug.   Additionally, nearly all dental treatments where fluoride is used none of it is to be ingested, but rather applied topically. It should be noted that most European nations do not put fluoride in their water supply and do not have high rates of dental carries. One would think if fluoride was so important to preventing dental carries countries without it in the water supply should have astronomical rates of tooth decay, but fact is they don’t.   So in final analysis Fluoride is not a harmless mineral applied to the water supply, it is a powerful ingredient used pesticides/herbicides. Outside of your drinking water it must be obtained by prescription and when it is applied to prevent carries in dental practice it is never given for ingestion. Citizens ought to know these things about a drug placed in their water supply so they can make informed decisions. However, whether you are for fluoride or against it the truth is if you live in Pinellas County fluoride is back.

Mark Perenich Personal injury lawyer in clearwater Contact Mark at 727-386-9677

[i] Geoffrey Smith, “Fluoridation—are the dangers resolved?” New Scientist. 1983 May 5. 286 – 7.
[ii]Richard D Shin, Mark A Silverberg. Fluoride Toxicty. Medscape Reference. (accessed July 22, 2013 athttp://emedicine.medscape.com/article/814774-overview#a0199) January 14, 2013.
[iii] Shivaprakrah PK, Ohri K, Noorani H. Relation between dental fluorosis and intelligence quotient in school children of Bagalkot district. Journal of Indian Society of Pedodontics and Preventative Dentistry. 2011; 29: 117 – 120.
[iv] Choi AL, Sun G, Zhang Y, Grandjean P. Developmental Fluoride Neurotoxicity: A Systematic Review and Meta-Analysis. Environmental Health Perspectives. 2012; 10: 1362 – 1368.
[v] Michael R. Dobbs. Clinical Neurotoxicology: Syndromes, Substances, Environments (Philadelphia, PA: Saunders Elsevier, 2009) 197 – 8.
[vi] Ibid.

Medical Malpractice, do I need a Dr’s OK to sue another Dr?

Clearwater Medical Malpractice Attorney

Yes, according to Florida Statute (malpractice statute) (F.S.) 766.106 (full text below) you must conduct a presuit investigation which requires an attorney to follow F.S. 766.203 as it states in pertinent part :

Corroboration of reasonable grounds to initiate medical negligence litigation shall be provided by the claimant’s submission of a verified written medical expert opinion from a medical expert as defined in s. 766.202(6), at the time the notice of intent to initiate litigation is mailed, which statement shall corroborate reasonable grounds to support the claim of medical negligence.

Doctor Clearwater

 

In order words a medical malpractice lawyer will need to consult another Doctor before they can initiate a lawsuit. This is one of many tort reforms Florida has instituted.  In fact, Florida is one of the leading states in medical malpractice reforms.  The legislature, however, still argues that medical malpractice cases are forcing Doctors to leave the state.  Such a statement is conjecture and completely unfounded.  I know many doctors, and they see no benefit to these laws, yet the legislature continues to spend your time and money for the benefit of insurance companies that want to receive malpractice premiums and don’t want to pay on honest claims.  Despite all these reforms, malpractice insurance continues to climb, and premiums in Florida, are not lower than states that do not have all the sweeping reform.

 If you have any questions about medical malpractice contact Mark Perenich today

766.203?Presuit investigation of medical negligence claims and defenses by prospective parties.—

(1)?APPLICATION OF PRESUIT INVESTIGATION.—Presuit investigation of medical negligence claims and defenses pursuant to this section and ss. 766.204-766.206 shall apply to all medical negligence claims and defenses. This shall include:

(a)?Rights of action under s. 768.19 and defenses thereto.
(b)?Rights of action involving the state or its agencies or subdivisions, or the officers, employees, or agents thereof, pursuant to s. 768.28 and defenses thereto.

(2)?PRESUIT INVESTIGATION BY CLAIMANT.—Prior to issuing notification of intent to initiate medical negligence litigation pursuant to s. 766.106, the claimant shall conduct an investigation to ascertain that there are reasonable grounds to believe that:

(a)?Any named defendant in the litigation was negligent in the care or treatment of the claimant; and
(b)?Such negligence resulted in injury to the claimant.

Corroboration of reasonable grounds to initiate medical negligence litigation shall be provided by the claimant’s submission of a verified written medical expert opinion from a medical expert as defined in s. 766.202(6), at the time the notice of intent to initiate litigation is mailed, which statement shall corroborate reasonable grounds to support the claim of medical negligence.

(3)?PRESUIT INVESTIGATION BY PROSPECTIVE DEFENDANT.—Prior to issuing its response to the claimant’s notice of intent to initiate litigation, during the time period for response authorized pursuant to s. 766.106, the prospective defendant or the defendant’s insurer or self-insurer shall conduct an investigation as provided in s. 766.106(3) to ascertain whether there are reasonable grounds to believe that:

(a)?The defendant was negligent in the care or treatment of the claimant; and
(b)?Such negligence resulted in injury to the claimant.

Corroboration of lack of reasonable grounds for medical negligence litigation shall be provided with any response rejecting the claim by the defendant’s submission of a verified written medical expert opinion from a medical expert as defined in s. 766.202(6), at the time the response rejecting the claim is mailed, which statement shall corroborate reasonable grounds for lack of negligent injury sufficient to support the response denying negligent injury.

(4)?PRESUIT MEDICAL EXPERT OPINION.—The medical expert opinions required by this section are subject to discovery. The opinions shall specify whether any previous opinion by the same medical expert has been disqualified and if so the name of the court and the case number in which the ruling was issued.
History.—s. 50, ch. 88-1; s. 26, ch. 88-277; s. 33, ch. 91-110; s. 113, ch. 92-33; s. 3, ch. 92-278; s. 60, ch. 2003-416; s. 154, ch. 2004-5.

 

766.106?Notice before filing action for medical negligence; presuit screening period; offers for admission of liability and for arbitration; informal discovery; review.—

(1)?DEFINITIONS.—As used in this section, the term:

(a)?“Claim for medical negligence” or “claim for medical malpractice” means a claim, arising out of the rendering of, or the failure to render, medical care or services.
(b)?“Self-insurer” means any self-insurer authorized under s. 627.357 or any uninsured prospective defendant.
(c)?“Insurer” includes the Joint Underwriting Association.

(2)?PRESUIT NOTICE.—

1(a)?After completion of presuit investigation pursuant to s. 766.203(2) and prior to filing a complaint for medical negligence, a claimant shall notify each prospective defendant by certified mail, return receipt requested, of intent to initiate litigation for medical negligence. Notice to each prospective defendant must include, if available, a list of all known health care providers seen by the claimant for the injuries complained of subsequent to the alleged act of negligence, all known health care providers during the 2-year period prior to the alleged act of negligence who treated or evaluated the claimant, copies of all of the medical records relied upon by the expert in signing the affidavit, and the executed authorization form provided in s. 766.1065.
(b)?Following the initiation of a suit alleging medical negligence with a court of competent jurisdiction, and service of the complaint upon a defendant, the claimant shall provide a copy of the complaint to the Department of Health and, if the complaint involves a facility licensed under chapter 395, the Agency for Health Care Administration. The requirement of providing the complaint to the Department of Health or the Agency for Health Care Administration does not impair the claimant’s legal rights or ability to seek relief for his or her claim. The Department of Health or the Agency for Health Care Administration shall review each incident that is the subject of the complaint and determine whether it involved conduct by a licensee which is potentially subject to disciplinary action, in which case, for a licensed health care practitioner, the provisions of s. 456.073 apply and, for a licensed facility, the provisions of part I of chapter 395 apply.

(3)?PRESUIT INVESTIGATION BY PROSPECTIVE DEFENDANT.—

(a)?No suit may be filed for a period of 90 days after notice is mailed to any prospective defendant. During the 90-day period, the prospective defendant or the defendant’s insurer or self-insurer shall conduct a review as provided in s. 766.203(3) to determine the liability of the defendant. Each insurer or self-insurer shall have a procedure for the prompt investigation, review, and evaluation of claims during the 90-day period. This procedure shall include one or more of the following:

1.?Internal review by a duly qualified claims adjuster;
2.?Creation of a panel comprised of an attorney knowledgeable in the prosecution or defense of medical negligence actions, a health care provider trained in the same or similar medical specialty as the prospective defendant, and a duly qualified claims adjuster;
3.?A contractual agreement with a state or local professional society of health care providers, which maintains a medical review committee;
4.?Any other similar procedure which fairly and promptly evaluates the pending claim.

Each insurer or self-insurer shall investigate the claim in good faith, and both the claimant and prospective defendant shall cooperate with the insurer in good faith. If the insurer requires, a claimant shall appear before a pretrial screening panel or before a medical review committee and shall submit to a physical examination, if required. Unreasonable failure of any party to comply with this section justifies dismissal of claims or defenses. There shall be no civil liability for participation in a pretrial screening procedure if done without intentional fraud.

(b)?At or before the end of the 90 days, the prospective defendant or the prospective defendant’s insurer or self-insurer shall provide the claimant with a response:

1.?Rejecting the claim;
2.?Making a settlement offer; or
3.?Making an offer to arbitrate in which liability is deemed admitted and arbitration will be held only on the issue of damages. This offer may be made contingent upon a limit of general damages.
(c)?The response shall be delivered to the claimant if not represented by counsel or to the claimant’s attorney, by certified mail, return receipt requested. Failure of the prospective defendant or insurer or self-insurer to reply to the notice within 90 days after receipt shall be deemed a final rejection of the claim for purposes of this section.

(d)?Within 30 days of receipt of a response by a prospective defendant, insurer, or self-insurer to a claimant represented by an attorney, the attorney shall advise the claimant in writing of the response, including:

1.?The exact nature of the response under paragraph (b).
2.?The exact terms of any settlement offer, or admission of liability and offer of arbitration on damages.
3.?The legal and financial consequences of acceptance or rejection of any settlement offer, or admission of liability, including the provisions of this section.
4.?An evaluation of the time and likelihood of ultimate success at trial on the merits of the claimant’s action.
5.?An estimation of the costs and attorney’s fees of proceeding through trial.
(4)?SERVICE OF PRESUIT NOTICE AND TOLLING.—The notice of intent to initiate litigation shall be served within the time limits set forth in s. 95.11. However, during the 90-day period, the statute of limitations is tolled as to all potential defendants. Upon stipulation by the parties, the 90-day period may be extended and the statute of limitations is tolled during any such extension. Upon receiving notice of termination of negotiations in an extended period, the claimant shall have 60 days or the remainder of the period of the statute of limitations, whichever is greater, within which to file suit.
1(5)?DISCOVERY AND ADMISSIBILITY.—A statement, discussion, written document, report, or other work product generated by the presuit screening process is not discoverable or admissible in any civil action for any purpose by the opposing party. All participants, including, but not limited to, physicians, investigators, witnesses, and employees or associates of the defendant, are immune from civil liability arising from participation in the presuit screening process. This subsection does not prevent a physician licensed under chapter 458 or chapter 459 or a dentist licensed under chapter 466 who submits a verified written expert medical opinion from being subject to denial of a license or disciplinary action under s. 458.331(1)(oo), s. 459.015(1)(qq), or s. 466.028(1)(ll).

(6)?INFORMAL DISCOVERY.—

(a)?Upon receipt by a prospective defendant of a notice of claim, the parties shall make discoverable information available without formal discovery. Failure to do so is grounds for dismissal of claims or defenses ultimately asserted.

1(b)?Informal discovery may be used by a party to obtain unsworn statements, the production of documents or things, and physical and mental examinations, as follows:

1.?Unsworn statements.—Any party may require other parties to appear for the taking of an unsworn statement. Such statements may be used only for the purpose of presuit screening and are not discoverable or admissible in any civil action for any purpose by any party. A party desiring to take the unsworn statement of any party must give reasonable notice in writing to all parties. The notice must state the time and place for taking the statement and the name and address of the party to be examined. Unless otherwise impractical, the examination of any party must be done at the same time by all other parties. Any party may be represented by counsel at the taking of an unsworn statement. An unsworn statement may be recorded electronically, stenographically, or on videotape. The taking of unsworn statements is subject to the provisions of the Florida Rules of Civil Procedure and may be terminated for abuses.
2.?Documents or things.—Any party may request discovery of documents or things. The documents or things must be produced, at the expense of the requesting party, within 20 days after the date of receipt of the request. A party is required to produce discoverable documents or things within that party’s possession or control. Medical records shall be produced as provided in s. 766.204.
3.?Physical and mental examinations.—A prospective defendant may require an injured claimant to appear for examination by an appropriate health care provider. The prospective defendant shall give reasonable notice in writing to all parties as to the time and place for examination. Unless otherwise impractical, a claimant is required to submit to only one examination on behalf of all potential defendants. The practicality of a single examination must be determined by the nature of the claimant’s condition, as it relates to the liability of each prospective defendant. Such examination report is available to the parties and their attorneys upon payment of the reasonable cost of reproduction and may be used only for the purpose of presuit screening. Otherwise, such examination report is confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution.
4.?Written questions.—Any party may request answers to written questions, the number of which may not exceed 30, including subparts. A response must be made within 20 days after receipt of the questions.
5.?Unsworn statements of treating health care providers.—A prospective defendant or his or her legal representative may also take unsworn statements of the claimant’s treating health care providers. The statements must be limited to those areas that are potentially relevant to the claim of personal injury or wrongful death. Subject to the procedural requirements of subparagraph 1., a prospective defendant may take unsworn statements from a claimant’s treating physicians. Reasonable notice and opportunity to be heard must be given to the claimant or the claimant’s legal representative before taking unsworn statements. The claimant or claimant’s legal representative has the right to attend the taking of such unsworn statements.
(c)?Each request for and notice concerning informal presuit discovery pursuant to this section must be in writing, and a copy thereof must be sent to all parties. Such a request or notice must bear a certificate of service identifying the name and address of the person to whom the request or notice is served, the date of the request or notice, and the manner of service thereof.
(d)?Copies of any documents produced in response to the request of any party must be served upon all other parties. The party serving the documents or his or her attorney shall identify, in a notice accompanying the documents, the name and address of the parties to whom the documents were served, the date of service, the manner of service, and the identity of the document served.
(7)?SANCTIONS.—Failure to cooperate on the part of any party during the presuit investigation may be grounds to strike any claim made, or defense raised, by such party in suit.
History.—s. 14, ch. 85-175; s. 9, ch. 86-287; s. 3, ch. 88-173; s. 48, ch. 88-277; s. 245, ch. 94-218; s. 1, ch. 94-258; s. 424, ch. 96-406; s. 1800, ch. 97-102; s. 164, ch. 98-166; s. 225, ch. 2000-160; s. 166, ch. 2000-318; s. 1, ch. 2000-341; s. 49, ch. 2003-416; s. 11, ch. 2011-233.
1Note.—Section 16, ch. 2011-233, provides that “[t]his act shall take effect October 1, 2011, and applies to causes of action accruing on or after that date.”
Note.—Former s. 768.57.

Perenich Medical malpractice lawyers

Surgery Risks Don’t End in the OR: Your Post-Op Care Can Be a Matter of Life and Death

Perenich injury Lawyer Clearwater Tampa St.Pete

Today we have a guest blog with a great article, I want to thank Mario Cattabiani for the article.  He knows what he is talking about when it comes to Medical Malpractice.  Enjoy!

 

Surgery Risks Don’t End in the OR: Your Post-Op Care Can Be a Matter of Life and Death

 Post-Surgical Risks and Steps You Can Take to Avoid Them

DoctorEveryone knows that surgical procedures come with significant risks, but not nearly as many are aware that the OR is just the beginning as far as health hazards. In fact, the recovery room can also be dangerous, and patients in the post-anesthesia recovery unit (PACU) are susceptible to a number of potential issues.

Risks to Be Aware Of

Although no surgical centers or patients are exactly the same, there are a few risks common to most cases:

  • Complications due to anesthesia. These include emergence delirium, nausea, diarrhea, and more.
  • Infection. This can occur at the incision site or be an unrelated illness contracted at the facility.
  • Lack of supervision by nurses. Many hospitals are chronically understaffed and may not have enough nurses on staff to properly monitor all PACU patients.
  • Malfunctioning or improperly set equipment. If the equipment monitoring the patient’s vital signs is not functioning properly or has been muted, for example, then nurses may not notice the patient’s condition degrading.
  • Side effects from medications. Strong pain medicines like Fentanyl can cause serious injury and even death if administered improperly or if the patient has a bad reaction to them.

 Questions to Ask Your Doctor

To make sure that you’ll be receiving the highest level of care both during and after your surgery, you’ll want to ask your doctor some questions prior to the procedure:

  • What is the surgeon’s experience with this procedure, and how many times has he or she performed it before?
  • How many other people will be assisting in the OR?
  • Has the team that will be performing the surgery worked together before, and are there any new members?
  • Has the anesthesiologist assisted with this procedure before?
  • If you have any health issues, ask if the staff have performed the procedure on someone with that condition before. For example, if you have diabetes, ask if they have performed the procedure on another diabetic before and if so, what the results were.
  • What is the PACU nurse-to-patient ratio?
  • What medications will you be given after the surgery, and what are their side effects?

These are just a few questions to ask before undergoing a procedure. Regardless of what type of surgery you’re getting, make sure to talk with your doctor not only about the risks of the procedure itself, but also about the details of aftercare. You can’t ensure a 100% perfect recovery, but by following those steps, you can certainly improve your chances.

Mario Cattabiani is the Director of Communications at Ross Feller Casey, LLP, a personal injury and medical malpractice law firm.

Perenich Medical Malpractice lawyers

How safe are our hospitals?

Clearwater Personal Injury Lawyer | Mark Perenich

Doctor Clearwater

“Medical harm is probably one of the three leading causes of death in the U.S., but the government doesn’t adequately track it as it does deaths from automobiles, plane crashes, and cancer. It’s appalling.”

-Peter Pronovost, M.D., senior vice president for patient safety and quality at Johns Hopkins Medicine in Baltimore

We typically view hospitals as being a place to go if one is sick or injured.  But how safe are the hospitals that we go to?  I have seen many medical malpractice cases over my 28 years of practicing, I can tell you that I have seen some scary things.  The good news is that hospitals are normally quick to fix mistakes and deficiencies for a number of reasons.  1) Hospitals want to give their patients the best care 2) Hospitals don’t want a lawsuit filed against them.

Infections, surgical mistakes, and other medical harm contribute to the deaths of 180,000 hospital patients a year, according to projections based on a 2010 report from the Department of Health and Human Services. Another 1.4 million are seriously hurt by their hospital care. And those figures apply only to Medicare patients.

 

 

The statistics get worse: “There is an epidemic of health-care harm,” says Rosemary Gibson, a patient-safety advocate and author. More than 2.25 million Americans will probably die from medical harm in this decade, she says. “That’s like wiping out the entire populations of North Dakota, Rhode Island, and Vermont. It’s a man-made disaster.”

The good news is that hospitals have taken reasonable steps prevent deaths from mistakes.  Research shows that these steps are helping, but some patient advocates say it’s not enough.

So, how do I know I am going to a good hospital?

That’s a good question, and a difficult one to answer.  I like to ask people that I know, and see what they think.  If you know a doctor, you can always ask them what they think of the hospitals in the area.  You can also do a search for the hospital and see if anyone has a bad review about the hospital or the nursing staff. Keep in mind that it’s usually the unhappy patients that complain.  Your other option is to go to consumer reports hospital ranking http://www.consumerreports.org/health/doctors-hospitals/hospital-ratings.htm Here you can see how they rank hospitals.  These ratings are not perfect, consumer reports receives about 20% of the medical incidents it needs to provide full and accurate rankings.

If you have any further question don’t be afraid to ask me on my Facebook or email me.

Best,

Mark

Mark Perenich | Personal injury attorney Tampa Clearwater