Caps on Non-Economic Damages

In September 2003, the Florida Legislature enacted Florida Statute § 766.118, placing caps on non-economic damages in medical malpractice cases. In cases against practitioners involving death, catastrophic injury, or where the court determines manifest injustice would result, the non-economic damages are capped at $1,000,000.00. In all other cases against practitioners, the cap is $500,000.00. In actions involving non-practitioners, such as hospitals, the caps for the above categories are $1,500,000.00 and $750,000.00, respectively. Theses caps apply regardless of the number of defendants involved. The statute also caps non-economic damages in cases involving emergency room practitioners at $150,000.00 per practitioner and a total of $300,000.00 for all defendants if certain criteria are met.

Since the statute’s passage, it has been the subject of constitutional challenges. Most recently, in March 2010, the Third District Court of Appeal in Weingrad v. Miles, 29 So. 3d 406 (Fla. 3d DCA 2010) upheld the retroactive application of the statute to limit non-economic damages in cases accruing prior to 2003. Previously, in 2009, the Fourth District Court of Appeal in Raphael v. Shecter, 18 So. 3d 1152 (Fla. 4th DCA 2009) reached the opposite conclusion, reasoning that the statute was an impairment of a substantive and vested right of the Plaintiff that existed prior to the enactment of the statute. The losing parties in both Weingrad and Raphael have sought review by the Florida Supreme Court.

The Florida Supreme Court has not yet ruled on the retroactive application issue or on the ultimate question of whether the limitations on non-economic damages are constitutional. The Court’s last significant ruling on the constitutionality issue was in 1993 in University of Miami v. Echarte, 618 So. 2d 189 (Fla. 1993), where the Court upheld separate statutory caps on non-economic damages in medical malpractice arbitrations. Recently, in 2009, the United States District Court for the Northern District of Florida, in Estate of McCall v. U. S., 663 F. Supp. 2d 1276 (N.D. Fla. 2009), interpreted Florida state law and rejected all constitutional challenges to the application of the caps. In doing so, the federal court recognized that the final decision on the issue would need to be made by the Florida Supreme Court. Conversely, in 2007, in Cavanaugh v. Cardiology Associates, 06-CA-3814 (9th Circuit Orange County Oct. 30, 2007), an Orange County Circuit Judge found that the caps violated the guarantee in Article I, Section 26(a) of the Florida Constitution of the right to “all of the damages that a jury could potentially award.”

Clearly, whether through an appeal of Raphael, or Weingrad, or some other mechanism, the Florida Supreme Court will likely address the constitutional challenges to the non-economic damages caps under §766.118. Until that time, this remains an open question in Florida.