Caps on Non-Economic Damages in Personal Injury Medical Malpractice Cases are Unconstitutional – North Broward Hospital District v. Kalitan
In a landmark decision, Florida’s Fourth District Court of Appeal (“Fourth DCA”) in North Broward Hospital District v. Kalitan held that caps on non-economic damages in personal injury medical malpractice cases violate the Equal Protection Clause of the Florida Constitution.
The Plaintiff, Susan Kalitan, suffered serious injury due to medical negligence when she went in for a carpal tunnel surgery that required anesthesia. The Defendant/anesthesiologist punctured a hole in her esophagus while performing intubation. When Ms. Kalitan awoke after surgery, she complained of excruciating pain in her chest and back but the anesthesiologist failed to detect the problem. She was released from the hospital, but the next day Ms. Kalitan’s neighbor found her at home unresponsive. She was rushed back to the hospital for life-saving surgery. Ms. Kalitan spent several weeks in a drug-induced coma before having additional surgeries and intensive therapy to begin eating again and regain mobility. She presently suffers from pain in the upper half of her body and serious mental disorders as a result of this traumatic incident and loss of independence due to physical limitations.
At trial, the jury awarded Ms. Kalitan $4 million in non-economic damages, but that figure was reduced by the trial court post-verdict to $2 million under the non-economic damages caps found in Fla. Stat. 766.118. The trial court denied the Plaintiff’s arguments that the caps were unconstitutional violations of the Equal Protection Clause, her right to access the courts and her right to trial by jury.
Ms. Kalitan appealed the reduction of her jury-awarded damages to the Fourth DCA where she was victorious. Judge Forst delivered the opinion for the appellate court, wherein he carefully followed the Florida Supreme Court’s rationale in Estate of McCall v. United States, 134 So. 3d 894 (Fla. 2014). In Estate of McCall, the Florida Supreme Court ruled that caps on non-economic damages in wrongful death cases violated Florida’s Equal Protection Clause as, “the greater the number of survivors and the more devastating their losses are, the less likely they are to be fully compensated for those loses”, particularly in comparison to cases where there was only one survivor.
Similarly, the Kalitan court reasoned that under the medical malpractice personal injury non-economic damages caps, those victims of malpractice who have the most lucrative cases due to perilous injuries are unable to recover the full amount of their damages while those who suffered less harm are able to. Likewise, those healthcare practitioners who create the most harm do not have to pay for the full extent of their liability due to the caps while the practitioners who do less harm are forced to. Per the Fourth DCA, this violates the Florida Constitution’s Equal Protection Clause, which mandates that, “All natural persons, female and male alike, are equal before the law…” Art. I, § 2, Fla. Const.
The Fourth DCA found further reason to strike down the non-economic damages caps when it applied the rational basis test. To be constitutional, a statute that does not involve either a suspect class or a fundamental right must be found to “bear a rational and reasonable relationship to a legitimate state objective, and it cannot be arbitrary or capriciously imposed.” In finding that the caps failed the rational basis test, the Kalitan court again referenced Estate of McCall, specifically, the concurring opinion by Justice Pariente. It was held that the legislative impetus for the damage caps, an alleged medical malpractice “insurance crisis”, no longer existed (if it ever did at all). Furthermore, the Court found that there was no rational correlation between caps on non-economic damages and lower malpractice insurance rates. The Fourth DCA held that Fla. Stat. 766.118 lacks any rational relation to a state objective, and fails both the “smell test” (another quote from Justice Pariente in Estate of McCall) as well as the rational basis test.
Another issue of note in the Kalitan decision was the reversal of the trial court’s adherence to a jury verdict regarding the vicarious liability of a university for the actions of a nurse/co-defendant. One of the anesthesia nurses who was present during the botched intubation was employed at the time by both a staffing company and a university teaching program. The plaintiff failed to specifically plead vicarious liability against the university vis-à-vis the nurse, but the trial court still allowed the jury to determine the issue of agency. The Fourth DCA overturned the verdict against the university, quoting the Florida Supreme Court in Goldschmidt v. Holman, 571 So. 2d 422, 423 (Fla. 1990), which held that generally a defendant “cannot be found liability under a theory of vicarious liability that was not specifically pled.” As the Plaintiff failed to specifically plead vicarious liability, and the defendant/university did not consent to the vicarious liability count, the Fourth DCA held that the trial court should have stricken that matter and not left it in the hands of the jury.
In sum, this landmark decision will be hailed as a victory for patients and consumers. In the past, negligent healthcare practitioners and hospitals would go to trial knowing what their worst outcome could be due to the caps on non-economic damages. They would use the caps as leverage in negotiations against patients whom they had harmed. Now, the jury’s voice can again reign supreme and each and every patient can have his or her case decided by a trier of fact without the constraints of a legislative body.