South Florida Injury Lawyer Blog
A state appellate court has urged the Florida Supreme Court to revisit whether a largely-debunked medical malpractice insurance “crisis” still justifies limiting damages in certain medical malpractice wrongful death lawsuits. The request, posed as a question of great public importance, stems from the Fla. 2nd DCA’s reluctant dismissal of a medical malpractice wrongful death lawsuit filed by the adult children of a woman who died after a missed diagnosis of lung cancer. 
The case raises constitutional equal protection concerns because the practical effect is that negligent doctors and healthcare providers cannot be held to account if their patient dies with no minor children or surviving spouse. Adult children (over age 25) of medical malpractice victims who die are not entitled to collect non-economic damages. (Non-economic damages are monetary compensation for intangible losses like as pain and suffering, loss of life enjoyment, loss of consortium, etc.)
This all started some 30 years ago, when Florida lawmakers, heavily courted by insurance industry lobbyists, enacted Florida State Statute 768.21 as a means of remedying “skyrocketing insurance costs” that were reportedly causing doctors to decline performing high-risk procedures and flee the state and the profession, forcing the closure of emergency rooms and other healthcare facilities. In 2000, the Florida Supreme Court cited this law – and the purported “crisis” legislators had used to rationalize it – to prevent the surviving adult children plaintiffs in Mizrahi v. North Miami Medical Center from recovering non-economic damages for their parent’s medical malpractice death.
Then in 2014 and 2017, the Florida Supreme Court took a closer look at this alleged insurance crisis. In addition to barring adult children from pursuing wrongful death lawsuits stemming from medical malpractice, this “crisis” was also used to enact strict damage caps for other medical malpractice plaintiffs (namely those who survived or the minor children and/or spouse of a patient who died).
In McCall v. U.S., the court held that medical malpractice wrongful death non-economic damage caps were unconstitutional, in part because the reasoning used by lawmakers to enact those caps decades earlier bore “no rational relationship to a legitimate state objective, thereby failing the rational basis test.” Only 7.5 percent of all medical malpractice payments of $1 million or more were the result of a jury verdict and only 10 percent of medical malpractice settlements involved payments of more than $1 million. In other words, this was not a case of runaway juries awarding exorbitant sums to undeserving plaintiffs, as it was characterized by insurer lobbyists and lawmakers.
Furthermore, this tort reform effort did little to reduce medical malpractice insurance rates. There also wasn’t any evidence that a doctor/healthcare provider existed at all, let alone that high medical malpractice insurance rates caused by multi-million-dollar patient lawsuits were the cause.
“This so-called ‘crisis’ is nothing more than the underwriting cycle of the insurance industry, driven by the same factors that caused the ‘crises’ in the 1970s and 1980s,” the court stated. “…The finding by the Legislature that Florida was in the midst of a bona fide medical malpractice crisis, threatening the access of Floridians to healthcare, is dubious and questionable at the very best.”
Justices reached a similar conclusion in 2017 in North Broward Hospital v. Kalitan, a case involving medical malpractice damage caps for patients who survived.
However, as our Naples medical malpractice attorneys can explain, neither of those decisions specifically addressed F.S. 768.21 pertaining to denying adult children a cause of action in medical malpractice wrongful death lawsuits. In fact, the court in McCall expressly stated the ruling was not counter to its earlier decision in Mizrahi. But the justification for both the damage caps and F.S. 768.21 was the exact same: An insurance crisis that didn’t really exist.
Health care and insurance industry officials decried both rulings and accused judges of “legislating from the bench.”
That brings us to the recent missed cancer diagnosis case of Santiago v. Rodriguez before the 2nd DCA. The adult children of the woman who died argued to the 2nd DCA that F.S. 768.21 is unconstitutional on equal protection grounds. The appellate panel sympathized, but said it had no choice but to dismiss the case, saying it was bound to the Mizrahi precedent, even if the Florida Supreme Court’s conclusions in 2014 and 2017 suggest it would reach a different conclusion on F.S. 768.21 were it presented today. The appellate court did, however, ask the Florida Supreme Court to review the matter now.
Will the state supreme court each a different conclusion? Had they reviewed it prior to this year, the answer likely would have been yes. However, it’s no longer the same court. When Governor Ron DeSantis took office earlier this year, he replaced the liberal-leaning judge who wrote both opinions as well as two others who concurred with it. Three of the more conservative justices – two of whom dissented in McCall and all of whom dissented in Kalitan – remain on the bench.
Contact the South Florida personal injury attorneys at Halberg & Fogg PLLC by calling toll-free at 1-877-425-2374. Serving West Palm Beach, Miami, Tampa, Orlando and Fort Myers/ Naples. There is no fee unless you win.
Additional Resources:
Santiago v. Rodriguez , Oct. 18, 2019, Fla. 2nd DCA