Florida Supreme Court Overturns Caps on Wrongful Death Medical Malpractice Awards. In March, the Florida Supreme Court declared the statutory caps placed on non-economic damages in medical malpractice cases unconstitutional in cases involving wrongful death claims. The Court did so in McCall v. United States of America which was a federal tort case involving medical malpractice claims against the federal government and Air Force medical personnel. Significantly, the federal trial judge who heard the case awarded Ms. McCall’s surviving family members $2 million in non-economic damages, but reduced the award to $1 million based on Florida’s caps on non-economic damages. On appeal, the U.S. Eleventh Circuit Court of Appeals upheld the ruling finding that the caps did not violate the U.S. Constitution, but stating that the Florida Supreme Court should consider Florida constitutional issues. Thus, the Court did so and overturned caps on non-economic damages awards in wrongful death medical malpractice cases.

The McCall decision may or may not be addressed in further litigation and/or by the Florida Legislature. Regardless, it is significant for physicians and health care providers and professionals of all types because of its possible impact on the medical malpractice and professional liability industry in Florida. One only need recall the medical malpractice insurance crisis which Florida experienced in the early to mid-2000s which caused many physicians to go bare due to skyrocketing premiums and a large number of insurance carriers leaving Florida and no longer offering medical malpractice or professional liability insurance policies. The decision is also significant as the Florida Supreme Court has not yet ruled on whether caps on non-economic damages are unconstitutional in medical malpractice cases that do not involve a wrongful death claim. There are still several cases making their way through litigation and the appellate process which could ultimately end up before the Court and result in a ruling either way.

For physicians, hospitals, ambulatory surgical centers, and all other types of licenses health care professionals, facilities and providers, it is important to take note of the McCall decision and how it could impact them. Health care providers, facilities and professionals should review their professional liability and medical malpractice policies to determine if they have sufficient limits and coverage to address large claims and potential excess verdicts which might exceed their coverage limits as many current policies were designed, purchased and implemented after the statutory caps were put in place in 2003-2004 and before the McCall decision. Health care providers and professionals should also consider whether the McCall decisions impacts them if they have any currently pending medical malpractice professional liability cases involving wrongful death claims and/or potential excess verdicts.

Furthermore, they should consider retaining personal counsel in cases involving wrongful death allegations or significantly large potential damages claims which could result in excess verdicts. Another recommendation would be for all licensed health care professionals, and in particular doctors and physicians, to review their employment contracts or independent contractor agreements with any employer, facility or health care provider to ensure that they have sufficient medical malpractice or professional liability insurance coverage, including tail coverage, addressed in their contracts if such coverage is provided by their employer or the entity with which the contract to provide professional medical or health care services. Finally, all licensed health care professionals and health care providers and businesses should review their liability and asset protection planning to account for the changes which may result from the McCall and the underlying decision and any future decisions on caps on non-economic damages.

Mr. Lowe and our law firm regularly represent physicians and other licensed health care professionals in the defense of medical malpractice cases, review of their medical malpractice professional liability insurance policies and coverages, and personal counsel matters as well as the review of employment contracts. To contact us regarding such matters please visit our website www.lowehealthlaw. com or call our office 407-332-6353. Michael R. Lowe, Esq. is a board-certified health law attorney and shareholder at Michael R. Lowe, P.A., 800-571-5208. Michael R. Lowe Board Certified Health Law Lawyer.