Florida lawmakers are considering reviving strict caps on awards for pain and suffering and other non-economic damages in medical malpractice cases. In many states, those injured by negligent medical providers can pursue the full compensation they deserve, including non-economic damages for pain and suffering and other impacts on their lives. The same goes for surviving relatives of those who die from medical malpractice. If the bill passes, it may limit the compensation a medical malpractice injury victim can recover.
Florida courts have previously addressed these controversial non-economic damages caps several times, with the Florida Supreme Court striking them down as unconstitutional in two landmark rulings in 2015 and 2017. Both sides believe they have strong arguments for and against the new legislation, part of which will remove a troubling exemption for victims of wrongful death. The Florida medical malpractice firm of Freedland Harwin Valori Gander examines these proposed changes.
Florida's Senate Judiciary Committee's Vote
Sen. Clay Yarborough and five co-sponsors introduced S.B. 248 on October 20, 2023. The bill would re-impose limits on non-economic damages for personal injury and wrongful death cases arising from medical negligence. It would also delete a prior provision prohibiting adult children and parents of adult children from recovering certain damages in medical malpractice lawsuits.
The Senate Judiciary Committee approved the bill on January 22, 2024, by a vote of 8-2. The committee of ten members overwhelmingly approved the measure despite hearing hours of opposing testimony from grieving survivors and injury victims. Strong support signaled for the bill in committee could translate to similar support when the bill heads for a full Senate vote.
Proposed Medical Malpractice Cap Details
If signed into law, S.B. 248 would place several new caps on medical malpractice claims in Florida.
The bill aims to impose caps on non-economic damages in personal injury and wrongful death actions over medical malpractice. Non-economic damages are those intangible impacts on the victim’s life that are hard to measure in dollars. These include pain and suffering, inconvenience, physical impairment, mental anguish, disfigurement, loss of capacity for enjoyment of life, and other nonfinancial losses.
When the claim is against a medical practitioner, the bill limits damages as follows:
- Non-economic damages are limited to $150,000 per claimant if the practitioner had no existing relationship with the patient and provided emergency care.
- Non-economic damages are limited to $300,000 per claimant if the practitioner provided medical services to a Medicaid recipient on a non-emergency basis.
- Non-economic damages are limited to $500,000 per claimant against a practitioner in all other cases.
When the claim is against a non-medical practitioner, the bill limits damages as follows:
- Non-economic damages are limited to $750,000 per claimant if the nonpractitioner had no existing relationship with the patient and provided emergency care.
- Non-economic damages are limited to $300,000 per claimant if the nonpractitioner provided medical services to a Medicaid recipient on a non-emergency basis.
- Non-economic damages are limited to $750,000 per claimant against a nonpractitioner in all other cases.
The new law would also eliminate a controversial exemption in the existing law that makes entire classes of plaintiffs ineligible to collect damages. That law—Subsection 8 of the Florida Wrongful Death Act, also known as Florida’s “free-kill” law—allows only minor children and surviving spouses to recover emotional and psychological damages when those age 25 or older die from medical negligence. These damages include lost companionship, instruction, guidance, and mental pain and suffering.
The “free kill” law specifically blocks adult children aged 25 or older from recovering emotional and psychological damages in medical negligence suits for the wrongful death of parents. It also restricts the parents of adult children killed by medical malpractice from pursuing such compensation.
If enacted, S.B. 248 will remove these exemptions, allowing more family members to pursue non-economic damages in wrongful death actions over medical negligence. This would drastically change the current exception for medical malpractice cases.
Supporters' Perspective
Supporters of the revised rules claim the limits are needed for several reasons. First, studies confirm that medical malpractice insurance rates in parts of Florida are among the nation’s highest. By limiting claim payouts, the theory is these rates will decrease or stabilize.
Second, the United States, particularly Florida, faces a shortage of health care workers. As the demand for physicians in Florida grows by double-digits, qualified health care providers may choose other states where they don’t have to fear high insurance premiums and liability claims.
Supporters also view the bill as a tradeoff for removing the controversial restrictions on non-economic damages for malpractice victims’ families in wrongful death actions.
Opponents' Perspective
Opponents of the new bill compare it to a “slap in the face” for victims of medical negligence who have lost so much. The argument is that full and fair medical malpractice payouts to injury victims serve an important purpose.
Fair damages awards in these cases can provide accountability for negligence and justice for victims and their families. Opponents believe a jury, not state lawmakers, should decide what a plaintiff’s pain and suffering are worth. They also refute the notion that these cases are brought carelessly.
Previous Attempts To Implement Damage Caps
The debate surrounding caps on medical malpractice claims isn’t new. In fact, it dates back more than two decades. In 2003, the Florida legislature held several special sessions before passing a series of caps on non-economic damages in medical malpractice lawsuits. Those caps ranged from $500,000 to $1.5 million, depending on the circumstances of the case.
Since 2003, two landmark cases have deemed those caps unconstitutional. In 2014’s Estate of McCall vs. United States, the Florida Supreme Court determined that non-economic damages caps in wrongful death cases violated a plaintiff’s equal protection under the Florida Constitution. In 2017’s North Broward Hospital District v. Susan Kalitan, a $4 million non-economic damage award was reduced to $1.3 million before being overturned by the court, indicating that caps “violate equal protection under the rational basis test.”
Chairman Clay Yarborough argues the new caps approved by the committee appropriately address the Supreme Court’s concerns about equal protection violations. The bill says the two decisions “were decided contrary to legislative intent and prior case law interpreting the equal protection clauses of the United States Constitution and the State Constitution.”
Notably, the makeup of the Florida Supreme Court has changed since 2017, with five of the current justices appointed by Gov. Ron DeSantis.
Financial Impact of Medical Malpractice Caps
One of the impetuses for limiting non-economic damages is the notion that medical malpractice premiums have become unaffordable in Florida. However, according to a report by the Office of Insurance Regulation, the Florida Justice Association highlighted that malpractice premium increases were modest between 2004 and 2023. Specifically, increases during this period were only about 6.1 percent.
Medical malpractice lawyers, birth injury attorneys, and victims of medical negligence argue these changes could be hurtful because they limit what an injured patient or surviving family member can recover. Limits might also fail to discourage harmful behavior in the future, one of the many benefits of high non-economic damage verdicts.
Lawyers opposing the changes warn against putting a monetary value on human life. Additionally, there may be consequences for placing limits on specific demographics. For example, there is serious concern about capping recovery for Medicaid patients as these are generally lower-income or minority populations.
Contact a Knowledgeable Florida Medical Malpractice Attorney
The state legislature’s move to limit injury damages is just one example of recent law changes impacting these cases. Medical malpractice reforms are complex because they are controversial and subject to frequent changes. As we navigate Florida’s medical malpractice caps, Freedland Harwin Valori Gander is here for you.
Our team of dedicated Florida medical malpractice lawyers is committed to helping clients after a devastating injury or wrongful death. We have recovered over $2.6 billion for our deserving clients.
Have questions about your potential damages in a medical malpractice lawsuit? Reach out to FHVG’s experienced team of medical malpractice attorneys for a free case review. Let us put our more than 20+ years of experience to work for you.
Call (954) 467-6400 or contact us online to schedule your appointment. We have offices conveniently located in Fort Lauderdale and Coral Gables.
