Supreme Court of Florida ____________

No. SC11-1148

____________

ESTATE OF MICHELLE EVETTE MCCALL, et al.,

Petitioners,

vs.

UNITED STATES OF AMERICA,

Respondent.

[March 13, 2014]

LEWIS, J.

This case is before the Court to answer four questions of Florida law 

certified by the United States Court of Appeals for the Eleventh Circuit that are 

determinative of a cause pending in that court and for which there appears to be no 

controlling precedent. We have jurisdiction. Art. V, § 3(b)(6), Fla. Const. In 

Estate of McCall v. United States, 642 F.3d 944 (11th Cir. 2011), the Eleventh 

Circuit certified the following questions:

(1) DOES THE STATUTORY CAP ON NONECONOMIC 

DAMAGES, FLA. STAT. § 766.118, VIOLATE THE RIGHT TO 

EQUAL PROTECTION UNDER ARTICLE I, SECTION 2 OF THE 

FLORIDA CONSTITUTION?
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(2) DOES THE STATUTORY CAP ON NONECONOMIC 

DAMAGES, FLA. STAT. § 766.118, VIOLATE THE RIGHT OF 

ACCESS TO THE COURTS UNDER ARTICLE I, SECTION 21 OF 

THE FLORIDA CONSTITUTION?

(3) DOES THE STATUTORY CAP ON NONECONOMIC 

DAMAGES, FLA. STAT. § 766.118, VIOLATE THE RIGHT TO 

TRIAL BY JURY UNDER ARTICLE I, SECTION 22 OF THE 

FLORIDA CONSTITUTION? 

(4) DOES THE STATUTORY CAP ON NONECONOMIC 

DAMAGES, FLA. STAT. § 766.118, VIOLATE THE 

SEPARATION OF POWERS GUARANTEED BY ARTICLE II, 

SECTION 3 AND ARTICLE V, SECTION 1 OF THE FLORIDA 

CONSTITUTION?

Id. at 952-53. Because this case involves a wrongful death, we rephrase the first 

certified question as follows:

DOES THE STATUTORY CAP ON WRONGFUL DEATH

NONECONOMIC DAMAGES, FLA. STAT. § 766.118, VIOLATE 

THE RIGHT TO EQUAL PROTECTION UNDER ARTICLE I, 

SECTION 2 OF THE FLORIDA CONSTITUTION?

As explained below, we answer the first rephrased certified question in the 

affirmative and hold that the cap on wrongful death noneconomic damages 

provided in section 766.118, Florida Statutes, violates the Equal Protection Clause 

of the Florida Constitution. We find it unnecessary to answer the remaining 

certified questions because Florida’s Wrongful Death Act is of statutory origin, 

and the present case is under the Federal Tort Claims Act and its procedures.

FACTS AND PROCEDURAL HISTORY

In its opinion, the Eleventh Circuit detailed the facts regarding the legal 
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action filed by the estate of Michelle McCall, Ms. McCall’s parents, and the father 

of Ms. McCall’s son (Petitioners) against the United States:

During June 2005, Michelle McCall received prenatal medical 

care at a United States Air Force clinic as an Air Force dependent. 

Ms. McCall opted for the Air Force’s family practice department to 

provide primary prenatal care and delivery services throughout her 

pregnancy. She had a healthy and normal pregnancy until the last 

trimester. On February 21, 2006, test results revealed that Ms. 

McCall’s blood pressure was high and that she was suffering from 

severe preeclampsia. Ms. McCall’s serious condition required that 

labor be induced immediately.

Instead of transferring Ms. McCall to the OB/GYN department, 

the family practice department continued to provide medical care. 

The Air Force hospital was temporarily unavailable for obstetric and 

delivery services, so members of the family practice department 

transferred Ms. McCall to the Fort Walton Beach Medical Center 

instead. There, Air Force family practice doctors treated Ms. McCall 

for hypertension and induced labor. When Ms. McCall dilated to five 

centimeters, her contractions slowed and became weaker. The Air 

Force family practice doctors treating Ms. McCall called an Air Force 

obstetrician, Dr. Archibald, and asked if he could perform a cesarean 

section. Dr. Archibald reported that he was performing another 

surgery and would not be available to perform a cesarean section on 

Ms. McCall until after he finished that surgery. The Air Force family 

practice doctors prepared Ms. McCall for a cesarean section but did 

not call other obstetricians to determine if one was available to 

provide immediate medical care.

On February 22, 2006, Dr. Archibald finally arrived to perform 

the cesarean section, but Ms. McCall’s contractions had resumed and 

the Air Force family practice doctors decided to allow Ms. McCall to 

deliver vaginally. Dr. Archibald left the Fort Walton Medical Center. 

On February 23, 2006 at 1:25 a.m., Ms. McCall delivered a healthy 

baby boy. Family members who visited Ms. McCall after the delivery 

expressed concerns about the amount of blood Ms. McCall had lost 

during delivery. Medical personnel assured these family members 

that Ms. McCall was stable.

Thirty-five minutes later, when the placenta had not delivered 

as expected, two family practice doctors from the family practice 
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department tried without success to manually extract the placenta. An 

Air Force nurse anesthetist administered additional epidural pain relief 

and gave Ms. McCall two separate doses of Morphine intravenously. 

Around 2:35 a.m., the family practice department doctors called Dr. 

Archibald, the obstetrician, for assistance when they could not remove 

the placenta manually.

Ms. McCall’s blood pressure began to drop rapidly and 

remained dangerously low over the next two and a half hours. The 

Air Force nurse anesthetist monitoring Ms. McCall’s vital signs did 

not notify the family practice doctors of the drop in Ms. McCall’s 

blood pressure. Dr. Archibald arrived at 2:45 a.m. and removed the 

placenta within five minutes. The family practice department doctors 

informed Dr. Archibald that Ms. McCall had not lost much blood 

during delivery. Dr. Archibald, however, noticed severe vaginal 

lacerations and worked to repair them over the next hour. During that 

time, the Air Force nurse anesthetist monitored Ms. McCall’s vital 

signs, reported to Dr. Archibald that they were stable, and failed to 

inform him that Ms. McCall’s blood pressure was dangerously low 

and continuing to drop. Dr. Archibald never checked the vital signs 

himself and relied exclusively on the nurse to inform him of any blood 

pressure changes or problems.

At 3:50 a.m. when Dr. Archibald finished his work, he 

requested an immediate blood count and, if needed, a transfusion to 

compensate for the blood Ms. McCall lost during the procedure. 

Forty minutes later, the family practice department physician ordered 

the blood count test. Forty minutes after that, and over an hour after 

Dr. Archibald had requested immediate blood work, a nurse attempted 

to draw blood from Ms. McCall. Ms. McCall was unresponsive. She 

had gone into shock and cardiac arrest as a result of severe blood loss. 

It is not clear how long Ms. McCall had been in this state, since no 

one had monitored her or checked her status for the hour following 

Dr. Archibald’s procedure. Ms. McCall never regained consciousness 

and was removed from life support on February 27, 2006.

Id. at 946-47.

The Petitioners filed an action against the United States under the Federal 

Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-80. Id. at 947. In addition 
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to finding the United States liable under the FTCA, the United States District Court 

for the Northern District of Florida determined that the Petitioners’ economic 

damages, or financial losses, amounted to $980,462.40. Id. The district court 

concluded that the Petitioners’ noneconomic damages, or nonfinancial losses, 

totaled $2 million, including $500,000 for Ms. McCall’s son and $750,000 for each 

of her parents. Id.

However, the district court limited the Petitioners’ recovery of wrongful 

death noneconomic damages to $1 million upon application of section 766.118(2), 

Florida Statutes (2005), Florida’s statutory cap on wrongful death noneconomic 

damages based on medical malpractice claims. Id.1

On appeal to the Eleventh Circuit, the Petitioners challenged the district 

court’s rulings with regard to both the application and the constitutionality of the 

cap mandated by Florida law on wrongful death noneconomic damages for medical 

 The district court denied a 

motion filed by the Petitioners that challenged the constitutionality of Florida’s 

wrongful death statutory cap under both the Florida and United States 

Constitutions. Id. The district court also denied the Petitioners’ motion to alter or 

amend the judgment. Id. at 947-48. 

 

1. Under the FTCA, damages are “determined by the law of the State where 

the tortious act was committed, 28 U.S.C. § 1346(b), . . . subject to the limitations 

that the United States shall not be liable for ‘interest prior to judgment or for 

punitive damages.’ ” Hatahley v. United States, 351 U.S. 173, 182 (1956) (quoting 

28 U.S.C. § 2674).
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malpractice claims. Id. at 948. The Petitioners contended that the statutory cap 

violates the Equal Protection Clause of the Fourteenth Amendment of the United 

States Constitution and constitutes a taking in violation of the Fifth Amendment of 

the United States Constitution. Id. They also asserted that the cap violates the 

following provisions of the Florida Constitution: (1) the separation of powers 

guarantee in article II, section 3 and article V, section 1; (2) the right to trial by 

jury under article I, section 22; (3) the right of access to the courts under article I, 

section 21; (4) the right to equal protection under article I, section 2; and (5) the 

prohibition against the taking of private property without full compensation under 

article X, section 6. Id. 

The Eleventh Circuit affirmed the application of the statutory cap on 

noneconomic damages and held that the statute does not constitute a taking in 

violation of article X, section 6, of the Florida Constitution. Id. at 953. The 

federal appellate court also held that the cap does not violate either the Equal 

Protection Clause or the Takings Clause of the United States Constitution. Id. 

However, the Eleventh Circuit granted a motion filed by the Petitioners to certify 

four questions to this Court regarding the remaining challenges to the statutory cap 

under the Florida Constitution. Id. 
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STATUTORY PROVISION

At issue is Florida’s statutory cap on wrongful death2

(2) Limitation on noneconomic damages for negligence of 

practitioners.—

noneconomic damages 

in medical negligence actions as articulated in section 766.118. Section 

766.118(2) states: 

(a) With respect to a cause of action for personal injury or 

wrongful death arising from medical negligence of practitioners, 

regardless of the number of such practitioner defendants, 

noneconomic damages shall not exceed $500,000 per claimant. No 

practitioner shall be liable for more than $500,000 in noneconomic 

damages, regardless of the number of claimants.

(b) Notwithstanding paragraph (a), if the negligence resulted in 

a permanent vegetative state or death, the total noneconomic damages 

recoverable from all practitioners, regardless of the number of 

claimants, under this paragraph shall not exceed $1 million. In cases 

that do not involve death or permanent vegetative state, the patient 

injured by medical negligence may recover noneconomic damages not 

to exceed $1 million if:

1. The trial court determines that a manifest injustice would 

occur unless increased noneconomic damages are awarded, based on a 

finding that because of the special circumstances of the case, the 

noneconomic harm sustained by the injured patient was particularly 

severe; and

2. The trier of fact determines that the defendant’s negligence 

caused a catastrophic injury to the patient.

(c) The total noneconomic damages recoverable by all 

claimants from all practitioner defendants under this subsection shall 

not exceed $1 million in the aggregate.

 

2. The legal analyses for personal injury damages and wrongful death 

damages are not the same. The present case is exclusively related to wrongful 

death, and our analysis is limited accordingly. 
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§ 766.118(2), Fla. Stat.3

EQUAL PROTECTION

 Noneconomic damages refer to “nonfinancial losses . . . 

including pain and suffering, inconvenience, physical impairment, mental anguish . 

. . loss of capacity for enjoyment of life, and other nonfinancial losses to the extent 

the claimant is entitled to recover such damages under general law, including the 

Wrongful Death Act.” § 766.202(8), Fla. Stat. (2005) (incorporated in § 

766.118(1)(b), Fla. Stat. (2005)). 

We have rephrased the first question certified to this Court by the Eleventh 

Circuit which addresses whether the cap on wrongful death noneconomic damages 

under section 766.118 violates the right to equal protection guaranteed by the 

Florida Constitution. The Florida Constitution provides, in pertinent part:

All natural persons, female and male alike, are equal before the law.

Art. I, § 2, Fla. Const. This Court has stated “[t]he constitutional right of equal 

protection of the laws means that everyone is entitled to stand before the law on 

 

3. Section 766.118 separates the cap on noneconomic damages into two 

categories, providing different limitations on damages for practitioners and 

nonpractitioners. See § 766.118(2), (3), Fla. Stat. Section 766.118(3), Florida 

Statutes, limits noneconomic damages for the negligence of nonpractitioner 

defendants. The Petitioners asserted that they were entitled to recover under this 

subsection as well; however, the federal district court noted that “no evidence at 

trial singled out a specific nonpractitioner for negligent conduct.” McCall, 642 

F.3d at 948-49 (quoting Estate of McCall v. United States, 663 F. Supp. 2d 1276, 

1295 (N.D. Fla. 2009)). The federal district court concluded that the Petitioners 

had failed to establish that Ms. McCall’s death resulted from the negligence of a 

nonpractitioner, and the Eleventh Circuit affirmed this determination. Id. at 949. 
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equal terms with, to enjoy the same rights as belong to, and to bear the same 

burden as are imposed upon others in a like situation.” Caldwell v. Mann, 26 So. 

2d 788, 790 (Fla. 1946). 

Unless a suspect class or fundamental right protected by the Florida 

Constitution is implicated by the challenged provision, the rational basis test will 

apply to evaluate an equal protection challenge. See Amerisure Ins. Co. v. State 

Farm Mut. Auto. Ins. Co., 897 So. 2d 1287, 1291 n.2 (Fla. 2005). To satisfy the 

rational basis test, a statute must bear a rational and reasonable relationship to a 

legitimate state objective, and it cannot be arbitrary or capriciously imposed. 

Dep’t of Corr. v. Fla. Nurses Ass’n, 508 So. 2d 317, 319 (Fla. 1987). Stated 

another way, the test for consideration of equal protection is whether individuals 

have been classified separately based on a difference which has a reasonable 

relationship to the applicable statute, and the classification can never be made 

arbitrarily without a reasonable and rational basis. 

Having carefully considered the arguments of both parties and the amici, we 

conclude that section 766.118 violates the Equal Protection Clause of the Florida 

Constitution under the rational basis test. The statutory cap on wrongful death 

noneconomic damages fails because it imposes unfair and illogical burdens on 

injured parties when an act of medical negligence gives rise to multiple claimants. 

In such circumstances, medical malpractice claimants do not receive the same 
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rights to full compensation because of arbitrarily diminished compensation for 

legally cognizable claims. Further, the statutory cap on wrongful death 

noneconomic damages does not bear a rational relationship to the stated purpose 

that the cap is purported to address, the alleged medical malpractice insurance 

crisis in Florida. 

Arbitrary Distinctions

This Court previously reasoned in St. Mary’s Hospital, Inc. v. Phillipe, 769 

So. 2d 961 (Fla. 2000), that the type of classification addressed in this case is 

purely arbitrary and unrelated to a true state interest. We clearly announced in 

Phillipe that aggregate caps or limitations on noneconomic damages violate equal 

protection guarantees under the Florida Constitution when applied without regard 

to the number of claimants entitled to recovery. This inherently discriminatory 

action and resulting invidious discrimination do not pass constitutional muster. 

We stated: 

If we were to accept St. Mary’s contention that the Legislature 

intended to limit noneconomic damages to $250,000 per incident in 

the aggregate, then the death of a wife who leaves only a surviving 

spouse to claim the $250,000 is not equal to the death of a wife who 

leaves a surviving spouse and four minor children, resulting in five 

claimants to divide $250,000. We fail to see how this classification 

bears any rational relationship to the Legislature’s stated goal of 

alleviating the financial crisis in the medical liability industry. Such a 

categorization offends the fundamental notion of equal justice under 

the law and can only be described as purely arbitrary and unrelated to 

any state interest.
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Id. at 972 (emphasis supplied). 

The equal protection violation identified by Phillipe is evident in the present 

case. The plain language of this statutory plan irrationally impacts circumstances 

which have multiple claimants/survivors differently and far less favorably than 

circumstances in which there is a single claimant/survivor and also exacts an 

irrational and unreasonable cost and impact when, as here, the victim of medical 

negligence has a large family, all of whom have been adversely impacted and 

affected by the death. Three separate noneconomic damage determinations were 

assessed by the federal district court based on the evidence presented. The 

damages suffered by Ms. McCall’s parents were determined to be $750,000 each, 

and Ms. McCall’s surviving son sustained damages determined to be $500,000. 

Applying the cap, the federal court then reduced the amounts of damages so each 

claimant would receive only half of his or her respective damages. Yet, if Ms. 

McCall had been survived only by her son, he would have recovered the full 

amount of his noneconomic damages: $500,000. Here, the cap delineated in 

section 766.118 limited the recovery of a surviving child (and surviving parents) 

simply because others also suffered losses. In a larger context, under section 

766.118, the greater the number of survivors and the more devastating their losses 

are, the less likely they are to be fully compensated for those losses. 

Other state supreme courts have struck down caps on noneconomic damages 
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based upon a similar rationale. In holding that a $500,000 cap per plaintiff on 

noneconomic damages in negligence and product liability actions violated the state 

constitution,4

In the first example . . . three plaintiffs are injured as a result of 

the same tortfeasor’s negligence. Plaintiff A is injured moderately,

and suffers pain, disability and disfigurement for a month. Plaintiff B 

is severely injured and suffers one year of pain and disability. 

Plaintiff C is drastically injured, and suffers permanent pain and 

disability. . . . [I]t is further assumed that a jury awards plaintiffs A 

and B $100,000 in compensatory damages for noneconomic injuries. 

Plaintiff C receives $1 million for his permanent, lifelong pain and 

disability.

the Supreme Court of Illinois aptly described how the cap operated 

to discriminate against claimants who have suffered the most grievous injuries, 

while benefitting the tortfeasor and/or the insurance company:

. . . 

The tortfeasors in this example are also treated differently, 

without any justification. The tortfeasor who injures plaintiffs A and 

B is liable for the full amount of fairly assessed compensatory 

damages. In contrast, [the challenged legislation] 

With respect to plaintiff C, [the challenged legislation] 

arbitrarily and automatically reduces the jury’s award for a lifetime of 

pain and disability, without regard to whether or not the verdict, 

before reduction, was reasonable and fair.

confers a benefit on 

the similarly situated tortfeasor who injures plaintiff C

 

4. The Supreme Court of Illinois concluded that the cap violated the special 

legislation clause of the Illinois Constitution. Best v. Taylor Mach. Works, 689 

N.E.2d 1057, 1078 (Ill. 1997). This clause “expressly prohibits the General 

Assembly from conferring a special benefit or exclusive privilege on a person or a 

group of persons to the exclusion of others similarly situated.” Id. at 1069. The 

Supreme Court of Illinois noted that special legislation constitutional challenges 

are generally “judged under the same standards applicable to an equal protection 

challenge.” Id. at 1070-71.

. This 

tortfeasor pays only a portion of fairly assessed compensatory 

damages because of the limitation [on noneconomic damages]. 
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Therefore, the statute discriminates between slightly and severely 

injured plaintiffs, and also between tortfeasors who cause severe and 

moderate or minor injuries.

Best v. Taylor Mach. Works, 689 N.E.2d 1057, 1075 (Ill. 1997) (emphasis 

supplied). The Supreme Court of New Hampshire condemned on equal protection 

grounds a $250,000 cap on noneconomic damages in medical malpractice cases, 

concluding that it is “simply unfair and unreasonable to impose the burden of 

supporting the medical care industry solely upon those persons who are most 

severely injured and therefore most in need of compensation.” Carson v. Maurer, 

424 A.2d 825, 837 (N.H. 1980), overruled on other grounds, Cmty. Res. for 

Justice, Inc. v. City of Manchester, 917 A.2d 707, 721 (N.H. 2007). 

Section 766.118, Florida Statutes, has the effect of saving a modest amount 

for many by imposing devastating costs on a few—those who are most grievously 

injured, those who sustain the greatest damage and loss, and multiple claimants for 

whom judicially determined noneconomic damages are subject to division and 

reduction simply based upon the existence of the cap. Under the Equal Protection 

Clause of the Florida Constitution, and guided by our decision in Phillipe, we hold 

that to reduce damages in this fashion is not only arbitrary, but irrational, and we 

conclude that it “offends the fundamental notion of equal justice under the law.” 

Phillipe, 769 So. 2d at 972; see also id. at 971 (“Differentiating between a single 

claimant and multiple claimants bears no rational relationship to the Legislature’s 
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stated goal of alleviating the financial crisis in the medical liability insurance 

industry.”).

Our holding today is not inconsistent with the decisions in Samples v. 

Florida Birth-Related Neurological Injury Compensation Ass’n, 114 So. 3d 912 

(Fla. 2013), Mizrahi v. North Miami Medical Center, 761 So. 2d 1040 (Fla. 2000), 

or University of Miami v. Echarte, 618 So. 2d 189 (Fla. 1993), because a review of 

those cases reveals that they involved statutes or challenges which are 

distinguishable from the present challenge to section 766.118. In Samples, the 

statute at issue created funding and authorized a $100,000 award to parents under 

the Florida Birth-Related Neurological Injury Compensation Plan (the Plan), which 

was structured with other benefits and provided compensation without regard to 

fault for birth-related neurological injury claims. 114 So. 3d at 914-15; see also § 

766.303, Fla. Stat. (2013). In rejecting an equal protection challenge on the basis 

that the statute treats a parent who files for the $100,000 award alone differently 

than parents who share or divide the award, this Court distinguished the decision in 

Phillipe, upon which we rely today:

Whereas the provision of the Medical Malpractice Act at issue in 

[Phillipe] expressly concerns fault-based noneconomic damages for 

survivors of the deceased, the Plan at issue here establishes a system 

of no-fault compensation. The no-fault character of the Plan sets the 

parental award provision apart from the statutory limitation on faultbased damages at issue in [Phillipe]. Limitations on damages that 

raise equal protection concerns under a fault-based system are 

dissimilar and appropriately viewed differently than limitations on 
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compensation under a system where eligible claimants are assured of 

a recovery without regard to fault.

114 So. 3d at 919. Here, as in Phillipe, section 766.118 concerns the award of 

damages in a traditional fault-based action. Further, section 766.118 arbitrarily 

reduces damages without regard to the fault of a tortfeasor simply based upon the 

number of survivors who are entitled to recovery. This is clearly distinguishable 

from the no-fault compensation award under the Plan at issue in Samples. The 

Plan was created by the Florida Legislature with the express purpose of “providing 

compensation, irrespective of fault, for birth-related neurological injury claims.” § 

766.303(1), Fla. Stat. (2013) (emphasis supplied). We reiterate that the present 

case does not involve a statutorily-created no-fault compensation plan. Thus, the 

two statutory schemes are, quite simply, completely different and distinct. 

Accordingly, Samples is distinguishable from the present case and, contrary to the 

assertion of the dissent, does not control, or even inform, the outcome here. 

Mizrahi involved a statute that precluded adult children of wrongful death 

victims from recovering noneconomic damages where the cause of death was 

medical malpractice. 761 So. 2d at 1041. In rejecting an equal protection 

challenge, we noted that under the common law an adult who was not dependant 

on a parent had no action and could not recover damages for injuries to that parent. 

Id. at 1042 (quoting Stewart v. Price, 718 So. 2d 205, 209 (Fla. 1st DCA 1998)). 

When the Legislature created the right for adult children to recover damages for 
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the injuries and wrongful death of a parent, it chose to exclude those children from 

recovering noneconomic damages in one type of action (medical malpractice). Id. 

We ultimately held that the statute, “which created a right of action for many while 

excluding a specific class from such action, and which exclusion is rationally 

related to controlling healthcare costs and accessibility,” did not violate equal 

protection. Id. at 1043. 

Unlike Mizrahi, the statute under review here does not address and expand a 

class of individuals eligible to recover noneconomic wrongful death damages. 

Instead, it treats similarly situated, eligible survivors differently by reducing the 

damages awarded without regard to the fault of the wrongdoer and based solely 

upon a completely arbitrary factor, i.e., how many survivors are entitled to 

recovery. The greater the number of survivors who are eligible to recover 

noneconomic damages in a medical malpractice wrongful death action, the lesser 

the award that each individual survivor will receive. Thus, the statute at issue in 

Mizrahi is also distinguishable from the noneconomic damages caps in section 

766.118. 

Finally, in Echarte this Court considered whether a $250,000 cap on 

noneconomic damages for medical malpractice claims where a party requested 

arbitration violated the access to courts provision of the Florida Constitution. 618 

So. 2d at 190, 193. In the present case, because we address only an equal 
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protection challenge—not an access to courts challenge—Echarte is inapposite. 

Nevertheless, the holding in Echarte that the cap was constitutional does not 

impact our decision today. In upholding the constitutionality of the cap in medical 

malpractice arbitration proceedings, this Court in Echarte noted that arbitration 

provided commensurate benefits in exchange for the cap, such as saving the 

expense of attorney fees and expert witnesses. Id. at 194. Conversely, under 

section 766.118, survivors receive absolutely no benefit whatsoever from the cap 

on noneconomic damages, but only arbitrary reductions based upon the number of 

survivors. 

Moreover, the statute imposing the cap in Echarte was later addressed by 

this Court in Phillipe. In Phillipe, we held that the cap applied per claimant rather 

than per incident, and noted that to hold otherwise would create equal protection 

concerns. 769 So. 2d at 971. In reaching this conclusion, we expressly stated that 

“Echarte does not control our decision.” Id. Similarly, Echarte does not compel a 

different result here. Rather, Phillipe, which recognized that Echarte did not 

address a circumstance in which similarly situated survivors would receive 

different, arbitrarily reduced noneconomic damage awards solely based upon the 

number of survivors, is the decision which guides our analysis as to the 

constitutionality of section 766.118. See Phillipe, 769 So. 2d at 971 (noting that 
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“the loss of a survivor is not diminished by the mere fact that there are multiple 

survivors”). 

Despite our discussion of Phillipe, we emphasize that, contrary to the 

assertion in the concurring in result opinion, our examination of the validity of 

section 766.118 cannot simply conclude without further analysis. The statute at 

issue in Phillipe, related to damage limits, is not identical to the factors in the 

present case. Phillipe involved a very different statutory scheme, based upon 

noneconomic damage awards in the arbitration context, a factual scenario not 

presented here. Therefore, while Phillipe provides guidance and may be 

considered persuasive, it is not dispositive of our equal protection analysis today. 

We cannot take the drastic step of invalidating a statute simply by declaring it so 

and relying upon an unrelated case which evaluated an unrelated statute. Instead, a 

comprehensive equal protection analysis of the cap on damages in section 766.118 

is required under Florida law to resolve the certified question. Accordingly, a 

description of the elements of an equal protection review, and our evaluation of 

those elements, must follow. This is a consideration of the facts and circumstances 

surrounding the challenged statute and the subject matter it addresses. 

The Alleged Medical Malpractice Crisis

In addition to arbitrary and invidious discrimination between medical 

malpractice claimants, the cap on noneconomic damages also violates the Equal 
- 19 -

Protection Clause of the Florida Constitution because it bears no rational 

relationship to a legitimate state objective, thereby failing the rational basis test. 

See Fla. Nurses Ass’n, 508 So. 2d at 319. Although the concurring in result 

opinion seeks to avoid a full proper legal analysis, contrary to the view of that 

opinion, no single prior case provides a complete answer and none provides any 

legal analysis which affords a basis for an answer to the question we must address. 

Our precedent expressly states that a proper equal protection analysis under the 

rational basis test “requires this Court to determine: (1) whether the challenged 

statute serves a legitimate governmental purpose, and (2) whether it was 

reasonable for the Legislature to believe that the challenged classification would 

promote that purpose.” Warren v. State Farm Mut. Auto. Ins. Co., 899 So. 2d 

1090, 1095 (Fla. 2005) (emphasis supplied); see also Zapo v. Gilreath, 779 So. 2d 

651, 655 (Fla. 5th DCA 2001); Fla. Dept. of Ins. v. Keys Title & Abstract Co., 741 

So. 2d 599, 602 (Fla. 1st DCA 1999). Thus, under Warren, and contrary to the 

view of the concurring in result opinion, both prongs of the rational basis test must 

be evaluated to determine the constitutionality of a statute.

Despite this precedent, the concurring in result opinion loudly proclaims that 

the full rational basis test be ignored and the legitimacy of the purpose for the cap 

not be addressed as part of our constitutional analysis. Further, that concurring in 

result opinion argues that only a single decision which does not set forth a proper 
- 20 -

analysis be applied. However, we would abandon our obligation under Warren

were we to simply rubber stamp the Legislature’s asserted justification for the 

cap—as the concurring in result and dissenting opinions suggest we do—and fail 

to consider the existing factors and circumstances to determine whether there is 

legitimacy to that justification. We decline to abdicate our responsibility under the 

law and, therefore, address whether the cap “serves a legitimate governmental 

purpose” pursuant to the first prong of Warren. 899 So. 2d at 1095 (emphasis 

supplied). 

The Florida Legislature attempted to justify the cap on noneconomic 

damages by claiming that “Florida is in the midst of a medical malpractice 

insurance crisis of unprecedented magnitude.” Ch. 2003-416, § 1, Laws of Fla., at 

4035. The Legislature asserted that the increase in medical malpractice liability 

insurance premiums has resulted in physicians leaving Florida, retiring early from 

the practice of medicine, or refusing to perform high-risk procedures, thereby 

limiting the availability of health care. Id. 

In enacting the statutory cap on noneconomic damages, the Legislature 

relied heavily on a report prepared by the Governor’s Select Task Force on 

Healthcare Professional Liability Insurance (Task Force), which concluded that 

“actual and potential jury awards of noneconomic damages (such as pain and 

suffering) are a key factor (perhaps the most important factor) behind the 
- 21 -

unavailability and un-affordability of medical malpractice insurance in Florida.” 

Report of Governor’s Select Task Force on Healthcare Professional Liability 

Insurance (Task Force Report) (Jan. 29, 2003), at xvii. 

To evaluate the constitutionality of the cap on noneconomic damages 

imposed by section 766.118, we are not required to accept the findings of the 

Legislature or the Task Force at face value. Instead:

While courts may defer to legislative statements of policy and 

fact, courts may do so only when those statements are based on actual 

findings of fact, and even then courts must conduct their own inquiry:

The general rule is that findings of fact made by 

the legislature are presumptively correct. However, it is 

well-recognized that the findings of fact made by the 

legislature must actually be findings of fact. They are not 

entitled to the presumption of correctness if they are 

nothing more than recitations amounting only to 

conclusions and they are always subject to judicial 

inquiry.

N. Fla. Women’s Health & Counseling Serv., Inc. v. State, 866 So. 2d 612, 627 

(Fla. 2003) (quoting Moore v. Thompson, 126 So. 2d 543, 549 (Fla. 1960)) (some 

emphasis supplied). 

Our consideration of the factors and circumstances involved demonstrates 

that the conclusions reached by the Florida Legislature as to the existence of a 

medical malpractice crisis are not fully supported by available data. Instead, the 

alleged interest of health care being unavailable is completely undermined by 

authoritative government reports. Those government reports have indicated that 
- 22 -

the numbers of physicians in both metropolitan and non-metropolitan areas have 

increased. For example, in a 2003 report, the United States General Accounting 

Office found that from 1991 to 2001, Florida’s physician supply per 100,000 

people grew from 214 to 237 in metropolitan areas and from 98 to 117 in 

nonmetropolitan areas, or percentage increases of 10.7 and 19, respectively. 

Physician Workforce: Physician Supply Increased in Metropolitan and 

Nonmetropolitan Areas but Geographic Disparities Persisted, No. GAO-04-124, 

(Oct. 31, 2003), at 23, available at http://www.gao.gov/new.items/d04124.pdf. 

Thus, during this purported crisis, the numbers of physicians in Florida were 

actually increasing, not decreasing. 

Additionally, an analysis of claim activity certainly does not provide a 

rational basis for the clear discrimination presented by the legislation. Although 

assertions of a malpractice insurance crisis are often accompanied by images of 

runaway juries entering verdicts in exorbitant amounts of noneconomic damages, 

see, e.g., Task Force Report at xvii, one study revealed that in Florida cases which 

resulted in payments of $1 million or more over a fourteen-year period, only 7.5 

percent involved a jury trial verdict. See Neil Vidmar, Kara MacKillop & Paul 

Lee, Million Dollar Medical Malpractice Cases in Florida: Post-Verdict and Pre-
- 23 -

Suit Settlements, 59 Vand. L. Rev. 1343, 1345-46 (2006).5 Moreover, 10.1 percent 

of settlements that involved payments of $1 million or more were resolved without 

a legal action ever being filed. Id. at 1360. Such statistics led the authors of the 

study to conclude that jury trials constitute only a very small portion of medical 

malpractice payments. Id. at 1345. The authors also concluded that “tort reform 

efforts focused on jury verdicts are misdirected, at least with respect to $1 million 

verdicts in Florida. Not only do jury trials constitute only a small portion of $1 

million payments, [but] the settlements following verdicts tend to be substantially 

less than the jury awards.” Id. at 1381 (emphasis supplied).6

Even the Task Force whose report was relied upon by the Florida 

Legislature employed extremely equivocal language and speculation when 

 Thus, available data 

indicates the Task Force’s finding that noneconomic damage awards by juries are a 

primary cause of the purported medical malpractice crisis in Florida is most 

questionable. 

 

5. Further, a national study reflects that from 1991 until 2003, judgments at 

trial accounted for only 4 percent of all malpractice payments. Amitabh Chandra, 

Shantanu Nundy, & Seth A. Seabury, The Growth Of Physician Medical 

Malpractice Payments: Evidence From The National Practitioner Data Bank, 

Health Affairs at W5-240, W5-243 (May 31, 2005), available at 

http://content.healthaffairs.org/content/early/2005/05/31/hlthaff.w5.240.full.pdf+ht

ml. 

6. According to the authors, with one exception, cases with verdicts in 

excess of $4 million settled for, on average, 37 percent less than the verdict. 

Million Dollar Medical Malpractice Cases in Florida, 59 Vand. L. Rev. at 1380. 
- 24 -

describing the existence of a crisis. For example, the Task Force stated that it 

“believes” the alleged crisis “could get worse in the coming years. . . . Medical 

malpractice insurance premiums may become unaffordable, and/or coverage may 

become unavailable at any price to many physicians and hospitals.” See Task 

Force Report, at 211-12 (emphasis supplied). Further, despite blaming “actual and 

potential jury awards of noneconomic damages” for this ominous prediction, Task 

Force Report at xvii, the Task Force recognized that there are other explanations 

for the dramatic rise in medical malpractice insurance premiums. For example, the 

Task Force Report notes that in the opinion of Joanne Doroshow, Executive 

Director of the Center for Justice and Democracy:

[T]his so-called “crisis” is nothing more than the underwriting cycle 

of the insurance industry, and driven by the same factors that caused 

the “crises” in the 1970s and 1980s. According to . . . Doroshow, 

with each crisis, there has been a severe drop in the investment 

income for insurers, which has been compounded by sever [sic] 

under-pricing of insurance premiums in the prior years. . . . [D]uring 

years of high interest rates or excellent insurer profits that are invested 

for maximum return, the insurance companies engage in fierce 

competition for premium dollars by selling under-priced premiums 

and insuring very poor risks. Then . . . when investment income 

drops, either due to increases in interest rates or the stock market, or 

due to low income resulting from unbearably low premiums, the 

insurance industry responds by sharply increasing premiums and 

reducing coverage. 

. . . The tort reform changes in the 1980s had nothing to do with 

the flattening of rates. The flattening was caused instead by 

modulations in the insurance cycle throughout the country.

Task Force Report, at 64 (footnotes omitted). The Task Force itself 
- 25 -

acknowledged:

Medical malpractice insurance has been subject to sudden jolts, 

both in availability of coverage and cost. An entire cycle has been 

defined as the period of years in which insurer underwriting profits 

cycle from above average to below average. These cycles have 

always occurred in the insurance industry, particularly in medical 

malpractice insurance. 

Task Force Report, at 31 (emphasis supplied) (footnotes omitted). See also Tom

Baker, THE MEDICAL MALPRACTICE MYTH 53-54 (2005) (“[T]he two most recent 

medical liability insurance crises did not result from sudden or dramatic increases 

in medical malpractice settlements or jury verdicts. . . . [T]he crises resulted from 

dramatic increases in the amount of money that the insurance industry put in 

reserve for claims. Those reserve increases were so big because the insurance 

industry systematically underreserved in the years leading up to the crisis.”).

Finally, testimony before the Senate Judiciary Committee and debate within 

the Florida Senate raised questions concerning the magnitude of any purported 

health care crisis. With regard to the former, the deputy director of the Florida 

Office of Insurance Regulation testified he had found no evidence to suggest that 

there had been a large increase in the number of frivolous lawsuits filed in Florida, 

nor was there any evidence of excessive jury verdicts in the prior three years. 

Testimony of Steve Roddenberry, Senate Judiciary Committee Meeting, July 14, 

2003, at 3, 10. 

During the subsequent floor debate, the following dialogue occurred 
- 26 -

between a senator and the Chairman of the Senate Judiciary Committee:

SENATOR: Were you able to determine whether or not there 

is an access to health care crisis in terms of the number of doctors 

licensed to practice medicine, the number of hospital closures or the 

number of emergency rooms closed?

. . . . 

CHAIRMAN: [T]his is not what I found. What the testimony 

was from both the Department of Health, the Agency for Health Care 

Administration and various other people . . . was that there, in fact, are 

more doctors licensed to practice today in the State of Florida than 

there were five years ago.

Applications to the medical schools in the State of Florida are 

up and have been up consistently for the past, for the past number of 

years.

And also that emergency rooms have not been closing as a 

result of medical malpractice. 

As a matter of fact, the Department of Health and the Agency 

for Health Care Administration both testified under oath that they 

could not cite any incidents where because of a medical malpractice 

crisis patients were denied some type of care or directed someplace 

else. 

Senate Floor Debate Tr. 22-23 (Aug. 13, 2003) (emphasis supplied). Further 

support for the testimony of the committee chairman exists in a report prepared by 

the United States General Accounting Office, which states:

Reports of physician departures in Florida were anecdotal, not 

extensive, and in some cases we determined them to be inaccurate. 

For example, state medical society officials told us that Collier and 

Lee counties lost all of their neurosurgeons due to malpractice 

concerns; however, we found at least five neurosurgeons currently 

practicing in each county as of April 2003. Provider groups also 

reported that malpractice pressures have recently made it difficult for 

Florida to recruit or retain physicians of any type; however, over the 

past 2 years the number of new medical licenses issued has increased 

and physicians per capita has remained unchanged.
- 27 -

Medical Malpractice: Implications of Rising Premiums on Access to Health Care, 

No. GAO-03-836, (Aug. 2003), at 17-18, available at 

http://www.gao.gov/new.items/d03836.pdf. 

Moreover, for those doctors who are leaving or have left Florida, there was 

no concrete evidence to demonstrate that high malpractice premiums were the 

cause of that departure. During her testimony before the Senate Judiciary 

Committee, the CEO of the Florida Medical Association testified with regard to 

two cases where physicians had relocated from Florida to North Carolina and New 

York, after which the following testimony ensued:

SENATOR: The [American Medical Association] has 

identified the states with national [crises], medical malpractice. One 

of the states is North Carolina. One of the states is New York. So it 

seems like you get some physicians that are leaving Florida for states 

that are also considered by the AMA to be in national crisis. Why?

CEO: Maybe they haven’t figured that out yet. 

CHAIRMAN: You better call the guy from North Carolina 

and—

CEO: I haven’t got the answer to that. I haven’t talked to any 

of these people individually. 

CHAIRMAN: You better call the guy from North Carolina and 

tell him they don’t have caps there either.

Testimony of Sandra Mortham, Senate Judiciary Committee Meeting, July 14, 

2003, at 117, 129-30.

Based upon these statements and reports, although medical malpractice 

premiums in Florida were undoubtably high in 2003, we conclude the Legislature’s 

determination that “the increase in medical malpractice liability insurance rates is 
- 28 -

forcing physicians to practice medicine without professional liability insurance, to 

leave Florida, to not perform high-risk procedures, or to retire early from the 

practice of medicine” is unsupported. Ch. 2003-416, §1, Laws of Fla., at 4035. 

Thus, the finding by the Legislature and the Task Force that Florida was in the 

midst of a bona fide medical malpractice crisis, threatening the access of Floridians 

to health care, is dubious and questionable at the very best. 

The Impact of Damage Caps on the Alleged Crisis

Even if these conclusions by the Legislature are assumed to be true, and 

Florida was facing a dangerous risk of physician shortage due to malpractice 

premiums, we conclude that section 766.118 still violates Florida’s Equal 

Protection Clause because the available evidence fails to establish a rational 

relationship between a cap on noneconomic damages and alleviation of the 

purported crisis. See generally Fla. Nurses Ass’n, 508 So. 2d at 319 (stating that 

for legislation to be constitutional under the rational basis standard, it must bear a 

rational and reasonable relationship to a legitimate state objective).

Reports have failed to establish a direct correlation between damages caps 

and reduced malpractice premiums. Weiss Ratings, which evaluates the 

performance of the malpractice insurance industry, has detailed two particularly 

salient findings. First, based upon data acquired from 1991 until 2002, the 

median medical malpractice premiums paid by physicians in three high-risk 
- 29 -

specialties—internal medicine, general surgery, and obstetrics/gynecology—rose 

by 48.2 percent in states that have damages caps, but in states without caps, the 

median annual premium increased at a slower rate—by 35.9 percent. Martin D. 

Weiss, Melissa Gannon & Stephanie Eakins, Medical Malpractice Caps: The 

Impact of Non-Economic Damage Caps on Physician Premiums, Claims Payout 

Levels, and Availability of Coverage, at 7-8 (rev. ed. June 3, 2003), available at 

http://www.weissratings.com/pdf/malpractice.pdf. Second, the study noted that 

among states with caps on damages, only 10.5 percent (two of nineteen states with 

caps) experienced static or declining medical malpractice premium rates following 

the imposition of caps. In contrast, among states without damages caps, 18.7 

percent (six of thirty-two states7

Additionally, Robert White, the President of First Professionals Insurance 

Company (FPIC), testified during a Senate Judiciary Committee meeting that a 

$500,000 cap on noneconomic damages would achieve “virtually nothing” with 

regard to stabilizing medical malpractice insurance rates. Testimony of Robert 

White, Senate Judiciary Committee Meeting, July 14, 2003, at 48, 50-51. Earlier 

in 2003, Mr. White informed a group of Palm Beach physicians: “No responsible 

without caps) experienced static or declining 

medical malpractice premiums. Id. at 8.

 

7. The study states that “the District of Columbia is being referred to as a 

‘state’ since it effectively operates as such with regard to insurance regulation.” 

Medical Malpractice Caps, at 7 n.4.
- 30 -

insurer can cut its rates after a bill [that caps noneconomic damages at $250,000] 

passes.” Phil Galewitz, “Underwriter Gives Doctors Dose of Reality,” Palm Beach 

Post, Jan. 29, 2003, at 1A. Mr. White advised that “[e]ven if a cap is approved by 

the legislature and survives the likely legal challenge . . . it would yield on average 

only a 16 percent premium cut.” Id. (emphasis supplied). Interestingly, during his 

testimony before the Senate Judiciary Committee, Mr. White acknowledged that in 

2002, the experience of FPIC was more positive in Florida than in Missouri, a state 

which at that time had implemented caps on damages. Testimony of Robert White, 

Senate Judiciary Committee Meeting, at 59.

Members of the Florida Senate and the House of Representatives also 

expressed doubt as to whether a noneconomic damages cap would have the effect 

of reducing premiums. During floor debate in the Senate, the following dialogue 

between a senator and the Chairman of the Senate Judiciary Committee occurred: 

SENATOR: [W]as there any testimony from either FPIC or 

any other insurance company that may have testified . . . that they 

would immediately reduce rates if they got a cap on damages?

SENATE PRESIDENT: [Chairman] to respond.

CHAIRMAN: No.

. . . . 

SENATOR: Was there any testimony the only way that you 

could reduce malpractice premiums was to cap damages?

SENATE PRESIDENT: [Chairman to respond.]

CHAIRMAN: No.

. . . .

SENATOR: . . . It’s my recollection, and maybe this might 

help [the Chairman], I remember a Mr. Bob White, representing FPIC, 

in testimony relative to the caps said, no, there wouldn’t be an 
- 31 -

immediate reduction in medical malpractice premiums due to caps, 

but as soon as they would be affirmed by a Court, there would be an 

immediate reduction available.

. . . .

CHAIRMAN: Senator . . . that was not the testimony given by 

Mr. White. I believe he said that bad faith and a series of other things 

had to be there, so the answer is no, it was not by placing a $250,000 

cap that would give a reduction. 

. . . . 

[T]he question was very specific, whether or not caps, whether 

or not Mr. White said that caps would reduce insurance rates. That 

was the question.

The answer is, he said no. I have the transcripts on my desk, 

and if you would care to show me where it says otherwise, I would be 

happy to say so.

. . . .

What he did say was you have to add several variables, bad 

faith is one of them and I believe there were others. So if the question 

is on caps, the answer is no.

Senate Floor Debate Tr. 45-47, 49 (Aug. 13, 2003). Further, during floor debate in 

the House of Representatives, one representative expressed concern that if the 

Florida Legislature implements a cap on noneconomic damages, there is no 

requirement in the bill that insurers pass any savings onto physicians. House Floor 

Debate Tr. 38-39 (Aug. 13, 2003) (“[A]t the end of the day, actually, [the insurance 

companies] don’t have to pay anything back to the doctors. It’s just a windfall, and 

there’s no provision in the bill that says otherwise.”).

The concerns of that representative were very perceptive and were not 

unfounded. While the cap on noneconomic damages limits the amount of money 

that insurance companies must pay injured victims of medical malpractice, section 
- 32 -

766.118 does not require insurance companies to use the acquired savings to lower 

malpractice insurance premiums for physicians, and the argument and reliance by 

the Respondent on rate reduction statutes is misplaced. When the statutory cap on 

noneconomic damages was first enacted, the legislation contained a provision, 

codified at section 627.062(8)(a)1., Florida Statutes (2003), that simply required 

the Florida Office of Insurance Regulation (FLOIR) to calculate a “presumed 

factor that reflects the impact that the changes contained in such legislation will 

have on rates for medical malpractice insurance and shall issue a notice informing 

all insurers writing medical malpractice coverage of such presumed factor.” Ch. 

2003-416 § 40, Laws of Fla, at 4078. There was no mandated rate reduction. 

After FLOIR issued a notice of the presumed factor, all medical malpractice 

insurance companies that offered coverage in Florida were directed to submit a rate 

filing for medical malpractice insurance that reflected “an overall rate reduction at 

least as great as the presumed factor.” § 627.062(8)(a)2., Fla. Stat. (2003).

Although at first glance this statutory subsection may appear to compel 

medical malpractice insurance companies to reduce their rates in response to the 

2003 legislation, FLOIR nonetheless advised that “[e]ven after application of the 

presumed factor, we anticipate insurers will file for rate increases.” Press Release, 

Florida Office of Insurance Regulation, Office of Insurance Regulation Releases 

Presumed Factor (Nov. 10, 2003), available at 
- 33 -

http://www.floir.com/PressReleases/viewmediarelease.aspx?id=1316. Moreover, 

despite any intended moderation of medical malpractice premiums based upon the 

calculation of the presumed factor, the 2013 Annual Report on Medical 

Malpractice Financial Information, Closed Claim Database and Rate Filings, 

prepared by FLOIR compared the premiums of Florida doctors in four specialties 

(family practice, obstetrics, emergency, and orthopedics) with other sampled states 

and concluded that “Florida is either the highest (of nine states) or the second 

highest state as far as premiums go in all but one of the scenarios.” 2013 FLOIR 

Annual Report (Oct. 1, 2013) at 57-58, available at 

http://www.floir.com/Office/DataReports.aspx#rec (CY2012). Therefore, despite 

assertions that the presumed factor created in section 627.062(8)(a) caused massive 

rate reductions by medical malpractice insurers to pass savings onto their 

customers, the data suggests otherwise. Subdivision (8) was even repealed from 

section 627.062 in 2011, having been designated “obsolete” by the Legislature. 

Ch. 2011-39, § 12, Laws of Fla., at 514, 536-37.

 A number of state courts have expressed concern that without a statutory 

mandate that insurance companies lower their insurance premiums in response to 

tort reform, the savings resulting from reforms such as damages caps may simply 

increase insurance company profits. In Zeier v. Zimmer, Inc., 152 P.3d 861 (Okla. 

2006), the Oklahoma Supreme Court held that a statute requiring a medical 
- 34 -

malpractice claimant to obtain an affidavit of merit from a qualified expert as a 

prerequisite to filing an action was unconstitutional under the Oklahoma 

Constitution. See id. at 874. While Zeier did not address caps, we find an 

observation of the Oklahoma Supreme Court to be just as applicable to caps on 

noneconomic damages:

[An] unanticipated result of statutes similar to Oklahoma’s scheme 

has been the creation of a windfall for insurance companies . . . which 

are not required to implement post-tort reform rates decreasing the 

cost of medical malpractice insurance to physicians. These companies 

happily pay less out in tort-reform states while continuing to collect 

higher premiums from doctors.

Id. at 869-70 (footnote omitted).

Moreover, the Texas Supreme Court has strongly questioned whether caps 

on damages will lower insurance premiums. In Lucas v. United States, 757 

S.W.2d 687 (Tex. 1988), the court noted that when the Texas Legislature enacted 

medical malpractice damages caps, it stated that “adoption of certain modifications 

in the medical, insurance, and legal systems . . . may or may not have an effect on 

the rates charged by insurers for medical professional liability coverage.” Id. at 

691. In striking down the caps as unconstitutional, the court concluded that “[i]n 

the context of persons catastrophically injured by medical negligence, we believe it 

is unreasonable and arbitrary to limit their recovery in a speculative experiment to 

determine whether liability insurance rates will decrease.” Id. We completely 

agree with and adopt the position of the Supreme Court of Texas. 
- 35 -

We conclude that the record and available data fail to establish a legitimate 

relationship between the cap on wrongful death noneconomic damages and the 

lowering of medical malpractice insurance premiums. Accordingly, we hold that 

section 766.118 fails the rational basis test and violates the Equal Protection Clause 

of the Florida Constitution. See generally Fla. Nurses Ass’n, 508 So. 2d at 319. 

The Current Status of Medical Malpractice in Florida

Lastly, even if a “crisis” existed when section 766.118 was enacted, a crisis 

is not a permanent condition. Conditions can change, which remove or negate the 

justification for a law, transforming what may have once been reasonable into 

arbitrary and irrational legislation. The United States Supreme Court has 

recognized that “[a] law depending upon the existence of an emergency or other 

certain state of facts to uphold it may cease to operate if the emergency ceases or 

the facts change even though valid when passed.” Chastleton Corp. v. Sinclair, 

264 U.S. 543, 547-48 (1924). See also Ferdon ex rel. Petrucelli v. Wisconsin 

Patients Comp. Fund, 701 N.W.2d 440, 468 (Wisc. 2005) (“A statute may be 

constitutionally valid when enacted but may become constitutionally invalid 

because of changes in the conditions to which the statute applies. A past crisis 

does not forever render a law valid.” (footnotes omitted)). Thus, even if section 

766.118 may have been rational when it was enacted based on information that 

was available at the time, it will no longer be rational where the factual premise 
- 36 -

upon which the statute was based has changed. It is for this reason that Florida 

courts consider both pre- and post-enactment data in assessing the continued 

rationality of a statute. 

Having evaluated current data, we conclude that no rational basis exists to 

justify continued application of the noneconomic damages cap of section 766.118. 

The 2011 State Physician Workforce Data Book prepared by the Association of 

American Medical Colleges (AAMC) reflects that in 2010, there were 254.8 active 

physicians for every 100,000 people in Florida, a number higher than twenty-eight 

other states. AAMC, 2011 State Physician Workforce Data Book, at 9 (Nov. 

2011), available at 

https://www.aamc.org/download/263512/data/statedata2011.pdf. Further, data 

collected through December 31, 2010, reflects that 59.4 percent of active 

physicians who completed medical school in Florida are practicing in Florida. Id.

at 53. Only three other states retained a higher percentage of medical students. Id. 

Additionally, the Office of the State Courts Administrator (OSCA) reports 

that medical malpractice filings in Florida have decreased significantly. During 

fiscal year 2003-04, a total of 5,829 professional malpractice and product liability 

actions were filed in Florida circuit courts, comprising 3.2 percent of all civil 
- 37 -

actions filed that year.8

Finally, and perhaps most telling, is that the leading companies selling 

medical malpractice insurance in Florida are far from struggling financially. The 

2013 FLOIR Annual Report notes:

 However, during fiscal year 2011-12, only 2,313 such 

actions were filed in Florida circuit courts, a decrease of more than 60 percent, and 

comprising just 0.76 percent of all civil actions filed. The Annual Reports on 

Medical Malpractice Financial Information prepared by the Florida Office of 

Insurance Regulation (FLOIR Annual Report) reflect a similar decrease in both the 

number of claims and in the amount of noneconomic damages paid by medical 

malpractice insurance companies. For example, 3,574 medical malpractice claims 

were closed in 2004, and insurance companies paid $195,132,457 in noneconomic 

damages. 2005 FLOIR Annual Report (Oct. 1, 2005) at 40, 44, available at 

http://www.floir.com/Office/DataReports.aspx#rec (CY2004). On the other hand, 

in 2012 only 2,491 medical malpractice claims were closed, and insurance 

companies paid $140,941,965 in noneconomic damages, decreases of 30.3 percent 

and 27.7 percent, respectively. 2013 FLOIR Annual Report (Oct. 1, 2013) at 10, 

88, available at http://www.floir.com/Office/DataReports.aspx#rec (CY2012). 

It is estimated that the Florida medical malpractice line of business 

standing alone generated a direct (before reinsurance) return on 

 

8. The OSCA combines these two types of legal actions for statistical 

purposes. 
- 38 -

surplus of 14.0% in 2012. This return compares very positively with 

the average countrywide all-lines net return on surplus for Florida’s 

leading medical malpractice writers of 5.3% (down from 7.1% in 

2011, but not far out of line with market returns in 2012). This 

represents the ninth consecutive year of profitability. . . . Related 

financial information in the report also suggests that the leading 

malpractice carriers as a class are financially strong

2013 FLOIR Annual Report at 8-9 (emphasis supplied). The most recent records 

and reports of the Florida Office of Insurance Regulation, and the annual reports of 

medical malpractice insurers, confirm that not only has the number of insurers 

providing medical malpractice insurance coverage increased, see 2012 FLOIR 

Annual Report at 40-41 and 2013 FLOIR Annual Report at 44, the profits would 

probably shock most concerned. Indeed, between the years of 2003 and 2010, four 

insurance companies that offered medical malpractice insurance in Florida 

cumulatively reported an increase in their net income of more than 4300 percent.

.

9

 

9. The four insurance companies were The Doctors Company, Mag Mutual 

Insurance Company, ProAssurance Corporation, and First Professionals Insurance 

Company. Each of the three remaining insurance companies posts its annual 

reports online. See http://www.thedoctors.com/TDC/Financials/CON_ID_000780; 

http://www.magmutual.com/annual-reports; and 

http://www.proassurance.com/investorrelations/annualreport.aspx. In October 

2011, the Doctors Company merged with the parent company of FPIC. See

http://www.thedoctors.com/TDC/PressRoom/PressContent/CON_ID_004471. 

Since FPIC is no longer an independent entity, the 2003 annual report for FPIC is 

not available on the website for a specific insurance company, but is available at 

http://www.rocketfinancial.com/IRVault.aspx?fID=6352&tID=1002. Every 

insurance company authorized to conduct business in Florida is required to file an 

annual statement “of its financial condition, transactions, and affairs” with the 

Office of Insurance Regulation. Fla. Admin. Code R. 69O-137.001(2)(a).

 
- 39 -

With such impressive net income estimates, the insurance industry should pass 

savings onto Florida physicians in the form of reduced malpractice insurance 

premiums,10

Thus, even if there had been a medical malpractice crisis in Florida at the 

turn of the century, the current data reflects that it has subsided. No rational basis 

currently exists (if it ever existed) between the cap imposed by section 766.118 and 

any legitimate state purpose. See generally Fla. Nurses Ass’n, 508 So. 2d at 319. 

At the present time, the cap on noneconomic damages serves no purpose other than 

to arbitrarily punish the most grievously injured or their surviving family members. 

Moreover, it has never been demonstrated that there was a proper predicate for 

imposing the burden of supporting the Florida legislative scheme upon the 

shoulders of the persons and families who have been most severely injured and 

died as a result of medical negligence. Health care policy that relies upon 

and it should no longer be necessary to continue punishing those most 

seriously injured by medical negligence by limiting their noneconomic recovery to 

a fixed, arbitrary amount. 

 

10. Despite such increases in net income, in 2012 one medical malpractice 

insurance company nonetheless charged obstetricians in Miami-Dade County more 

than $190,000 for $1 million of coverage. See 2013 FLOIR Annual Report at 57. 

The company charged obstetricians in other Florida counties approximately 

$98,000 for the same coverage. Id. at 58. During 2012, the same company 

charged orthopedists in Miami-Dade County more than $115,000 for $1 million of 

coverage, whereas orthopedists in other Florida counties were charged 

approximately $59,000. Id. at 57-58. 
- 40 -

discrimination against Florida families is not rational or reasonable when it 

attempts to utilize aggregate caps to create unreasonable classifications. 

Accordingly, and for each of these reasons, the cap on wrongful death 

noneconomic damages in medical malpractice actions does not pass constitutional 

muster. 

THE REMAINING CERTIFIED QUESTIONS

We conclude that the remaining certified questions need not be addressed. 

With regard to the second and third questions, the provision of the Florida 

Constitution that governs access to courts protects those rights which existed either 

at common law or by statute prior to the adoption of the 1968 Declaration of 

Rights. See Kluger v. White, 281 So. 2d 1, 4 (Fla. 1973). Similarly, the right to 

trial by jury is guaranteed only in those cases where the right was enjoyed at the 

time the first Constitution of Florida became effective in 1845. In re 1978 

Chevrolet Van, 493 So. 2d 433, 434 (Fla. 1986). 

At common law, Florida did not recognize a cause of action for wrongful 

death. White v. Clayton, 323 So. 2d 573, 575 (Fla. 1975) (“An action for wrongful 

death was not authorized at common law, and is a creation of the legislature.”). 

Moreover, although the Florida Legislature authorized an action for wrongful death 

prior to 1968, see, e.g., § 768.01, Fla. Stat. (1941), the right of survivors to recover 

noneconomic damages, such as pain and suffering, did not become part of Florida 
- 41 -

statutory law until 1972. Lifemark Hosps. of Fla., Inc. v. Afonso, 4 So. 3d 764, 

769 (Fla. 3d DCA), cert. denied, 23 So. 3d 711 (Fla. 2009). 

Section 766.118 caps noneconomic damages in both wrongful death medical 

malpractice actions and personal injury medical malpractice actions where the 

victim survives. This case involves only a wrongful death medical malpractice 

action. Because the right of Ms. McCall’s parents and son to recover noneconomic 

damages for her death did not exist prior to 1972, their access to courts and jury 

trial challenges to section 766.118 are not cognizable. Accordingly, to answer the 

second and third questions certified by the federal appellate court with regard to 

personal injury medical malpractice actions would constitute an advisory opinion, 

which we are not authorized to provide. Sarasota-Fruitville Drainage Dist. v. 

Certain Lands Within Said Dist., 80 So. 2d 335, 336 (Fla. 1955) (“We have 

repeatedly held that this Court was not authorized to render advisory opinions 

except in the instances required or authorized by the Constitution.”).

Our decision not to answer the fourth certified question addressing the 

separation of powers challenge is based upon a similar rationale. As previously 

stated, with regard to wrongful death, the Florida Legislature created a cause of 

action where none previously existed. Clayton, 323 So. 2d at 575. However, 

section 766.118 addresses both personal injury medical malpractice actions, which 

previously existed under the common law, Maggio v. Fla. Dep’t of Labor and 
- 42 -

Emp. Security, 899 So. 2d 1074, 1081 n.5 (Fla. 2005) (noting that “unlike causes 

of action that are solely the creature of statute, medical malpractice actions existed 

as common law torts”), and wrongful death medical malpractice actions, which are 

purely a statutory creation. Were we to answer the fourth certified question, it 

would constitute, in part, an impermissible advisory opinion. Sarasota-Fruitville, 

80 So. 2d at 336. For this reason, we decline to do so. 

CONCLUSION

Based on the foregoing, we answer the first rephrased certified question in 

the affirmative and hold that the cap on wrongful death noneconomic damages in 

section 766.118, Florida Statutes, violates the Equal Protection Clause of the 

Florida Constitution. We defer answering the remaining certified questions. We 

return this case to the Eleventh Circuit Court of Appeals.

It is so ordered.

LABARGA, J., concurs.

PARIENTE, J., concurs in result with an opinion, in which QUINCE and PERRY, 

JJ., concur.

POLSTON, C.J., dissents with an opinion, in which CANADY, J., concurs. 

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND 

IF FILED, DETERMINED.

PARIENTE, J., concurring in result. 

I agree with the plurality opinion authored by Justice Lewis that the statutory 

cap on wrongful death noneconomic damages provided by the medical malpractice 
- 43 -

statute violates the Equal Protection Clause of the Florida Constitution. Like the 

plurality, I would therefore answer the first rephrased certified question in the 

affirmative and decline to answer the remaining questions certified by the Eleventh 

Circuit Court of Appeals. In fact, as I explain, I agree with much of the plurality 

opinion that declares the statutory damages cap unconstitutional as applied to 

wrongful death actions. 

However, I do not fully join in the plurality opinion because I respectfully 

disagree with the plurality’s application of the rational basis test in this case. 

Specifically, my primary disagreement is with the decision not to afford deference 

to the legislative findings in the absence of a showing that the findings were 

“clearly erroneous.” Univ. of Miami v. Echarte, 618 So. 2d 189, 196 (Fla. 1993). 

Although this Court is not bound to blindly defer to all legislative findings, I 

disagree with the plurality’s independent evaluation and reweighing of reports and 

data, including information from legislative committee meetings and floor debate, 

as well as an article published in the Palm Beach Post newspaper, as part of its 

review of whether the Legislature’s factual findings and policy decisions as to the 

alleged medical malpractice crisis were fully supported by available data. See, 

e.g., plurality op. at 25-28 (Lewis, J.) (quoting from the legislative floor debate and 

committee meeting testimony and reviewing studies); id. at 29-31 (citing to and 

quoting from a newspaper article and quoting additional legislative committee 
- 44 -

testimony and floor debate). I emphasize, however, that although I do not fully 

join in the plurality’s application of the rational basis test, I agree with the ultimate 

conclusion that the arbitrary reduction of survivors’ noneconomic damages in 

wrongful death cases based on the number of survivors lacks a rational relationship 

to the goal of reducing medical malpractice premiums.

My analysis proceeds in the following way. I first set forth the background 

of the case, which frames the specific constitutional question in need of this 

Court’s resolution—a resolution the plurality and I both agree on. With this 

context in mind, I then explain how and why the plurality and I agree as to the asapplied unconstitutionality of the statutory cap on noneconomic damages in 

wrongful death actions. Finally, I discuss where my legal analysis diverges from 

the plurality’s and why, despite my agreement with the ultimate conclusion, I am 

unable to fully join in the plurality opinion. 

I. Background

As described in the findings of fact of the federal district court where this 

litigation began, at the time of her death, Michelle McCall was a “bright, beautiful, 

and healthy, 20-year-old woman” who tragically “bled to death in the presence of 

all medical staff who were attending her” in the course of receiving prenatal care 

and delivery services for her pregnancy at Eglin Air Force Base’s clinic. Estate of 

McCall v. United States, 663 F. Supp. 2d 1276, 1283, 1291 (N.D. Fla. 2009). The 
- 45 -

facts of the medical malpractice and the circumstances of Michelle’s tragic death 

are not in dispute or at issue before this Court. Rather, we are faced with a legal 

question as to the constitutionality of Florida’s statutory limitation on 

noneconomic damages to Michelle’s survivors, as set forth in section 766.118, 

Florida Statutes. 

Section 766.118 provides in pertinent part as follows:

(2) Limitation on noneconomic damages for negligence of 

practitioners.—

(a) With respect to a cause of action for personal injury or 

wrongful death arising from medical negligence of practitioners, 

regardless of the number of such practitioner defendants, 

noneconomic damages shall not exceed $500,000 per claimant. No 

practitioner shall be liable for more than $500,000 in noneconomic 

damages, regardless of the number of claimants.

(b) Notwithstanding paragraph (a), if the negligence resulted in 

a permanent vegetative state or death, the total noneconomic damages 

recoverable from all practitioners, regardless of the number of 

claimants, under this paragraph shall not exceed $1 million. In cases 

that do not involve death or permanent vegetative state, the patient 

injured by medical negligence may recover noneconomic damages not 

to exceed $1 million if:

1. The trial court determines that a manifest injustice would 

occur unless increased noneconomic damages are awarded, based on a 

finding that because of the special circumstances of the case, the 

noneconomic harm sustained by the injured patient was particularly 

severe; and

2. The trier of fact determines that the defendant’s negligence 

caused a catastrophic injury to the patient.

(c) The total noneconomic damages recoverable by all 

claimants from all practitioner defendants under this subsection shall 

not exceed $1 million in the aggregate.

§ 766.118, Fla. Stat. (2005).
- 46 -

As to noneconomic damages, Michelle left as survivors her parents and her 

baby boy, who was born at the same time Michelle died. The federal district court 

found as follows as to the child’s noneconomic damages:

W.W., who is now a healthy and active 3 1/2 year-old boy [as of 

2009], has been deprived the privilege of ever knowing his mother, of 

having her comfort and emotional support throughout his and her 

shared lifetimes, and of benefitting from her guidance and 

companionship. The negligent conduct in this case occurred within a 

matter of hours of his birth, but it leaves for W.W. a void in his life 

that will never truly be filled. His pain and suffering are difficult to 

quantify, but no one disputes the magnitude of his loss. On the other 

hand, the court is mindful that W.W.’s pain is necessarily tempered by 

his age at the time of his mother’s death. He lives with the pain of 

never knowing her, but not with the pain that comes from suddenly 

losing the love and companionship of a parent one has bonded with 

emotionally. W.W.’s life, while shadowed by this tragedy, will be 

lived with the love of those who have surrounded him from infancy—

his father and his grandparents—not the pain of a conscious memory 

of his mother’s death. The court does not intend to minimize the loss 

of one’s mother; such is an obvious and enormous loss. The court 

simply finds that the pain and suffering for W.W. is tempered by his 

infancy at the time of his mother’s death, a factor that should be 

reflected in the noneconomic damage award. To compensate for 

W.W.’s loss of parental companionship, instruction, and guidance and 

for his mental pain and suffering, the court awards $500,000.00.

Id. at 1293-94 (footnote omitted).

As to Michelle’s parents, Edward M. and Margarita F. McCall, the federal 

district court awarded $750,000 to each for their pain and suffering, explaining as 

follows:

There is no question, as shown by the evidence, that Mr. and 

Mrs. McCall were both very close to their daughter and that this 

tragedy has greatly impacted the quality of their lives, emotionally as 
- 47 -

well as physically. They were otherwise healthy, active, and excited 

about helping their daughter and new grandson. They went to the 

hospital with the happy and hopeful expectation of bringing their 

daughter home with a healthy baby but instead found themselves 

faced with the agonizing decision of whether to remove life support 

from her. Mr. McCall struggled as he recounted their hope of 

Michelle possibly regaining consciousness as they laid W.W. across 

her before she died, and also so they could have one photograph of her 

“holding” her baby before she died. The pain from the loss of their 

only daughter and the mental agony of having to make the decision to 

remove her from life support will not soon abate, if ever in their 

lifetimes. The court takes into consideration, however, that because 

of their relationship as a married couple, they will both undeniably 

benefit from each other’s noneconomic damage award.

Id. at 1294. 

As set forth by the plurality, because section 766.118(2) caps total 

noneconomic damages recoverable by all claimants at $1 million, each of these 

three independent survivors had his or her award of noneconomic damages

significantly reduced so that the damages were proportionally divided so as not to

exceed the statutory cap. In other words, instead of receiving the full amount of 

noneconomic damages awarded by the federal district court, none of which 

individually exceeded $1 million, each individual survivor was treated differently 

as to his or her noneconomic damages award because there was more than one 

survivor entitled to noneconomic damages in this case. 

This is where the equal protection argument addressed by the plurality 

becomes important. Critically, as I explain in the next section, despite not fully 

joining in the plurality opinion, I do agree that the noneconomic damages cap 
- 48 -

violates Florida’s Equal Protection Clause as applied to wrongful death actions 

under the constitutional rational basis test. 

II. Agreement with the Plurality Opinion

I agree with the plurality opinion as to the following issues. First, I agree 

that there are two prongs to the rational basis test, requiring the Court to consider 

both whether the statute serves a legitimate governmental purpose and whether the 

Legislature was reasonable in its belief that the challenged classification would 

promote that purpose. See, e.g., Hechtman v. Nations Title Ins. of N.Y., 840 So. 

2d 993, 996 (Fla. 2003). As this Court explained in one of its most recent 

applications of the rational basis test in the equal protection context, “[t]o be 

entitled to relief under the rational basis test, the [challengers] must show that the 

[challenged statute] does not ‘bear some rational relationship to legitimate state 

purposes.’ ” Samples v. Fla. Birth-Related Neurological Injury Comp. Ass’n, 114 

So. 3d 912, 917 (Fla. 2013) (quoting Westerheide v. State, 831 So. 2d 93, 110 (Fla. 

2002)). It is not this Court’s “task ‘to determine whether the legislation achieves 

its intended goal in the best manner possible, but only whether the goal is 

legitimate and the means to achieve it are rationally related to the goal.’ ” 

Samples, 114 So. 3d at 917 (quoting Loxahatchee River Envtl. Control Dist. v. 

Sch. Bd. of Palm Beach Cnty., 496 So. 2d 930, 938 (Fla. 4th DCA 1986)). 
- 49 -

Second, I also agree that this Court’s role is not to simply “rubber stamp” the 

Legislature’s actions. Plurality op. at 20 (Lewis, J.). Indeed, although this Court’s 

case law requires deference to the Legislature’s factual determinations, see

Echarte, 618 So. 2d at 196, this Court’s precedent also clearly establishes that the 

Legislature’s findings “must actually be findings of fact” and are not entitled to the 

presumption of correctness “if they are nothing more than recitations amounting 

only to conclusions.” Moore v. Thompson, 126 So. 2d 543, 549 (Fla. 1960) 

(quoting Seagram-Distillers Corp. v. Ben Greene, Inc., 54 So. 2d 235, 236 (Fla. 

1951)).

Third, and most importantly, I agree with the plurality’s conclusion that the 

statutory cap on noneconomic damages is unconstitutional as applied to wrongful 

death actions. In my view, the Court’s controlling precedent in St. Mary’s 

Hospital, Inc. v. Phillipe, 769 So. 2d 961, 971 (Fla. 2000), is directly on point in 

holding that this type of statutory scheme is improper because “[d]ifferentiating 

between a single claimant and multiple claimants bears no rational relationship to 

the Legislature’s stated goal of alleviating the financial crisis in the medical 

liability insurance industry.” Id. 

Indeed, as the plurality correctly notes, this Court “clearly announced in 

Phillipe that aggregate caps or limitations on noneconomic damages violate equal 

protection guarantees under the Florida Constitution when applied without regard 
- 50 -

to the number of claimants entitled to recovery.” Plurality op. at 10 (Lewis, J.). I 

agree with the plurality that this “inherently discriminatory action and resulting 

invidious discrimination do not pass constitutional muster.” Id.

The rationale of Phillipe is particularly applicable in this case given that, in 

capping wrongful death noneconomic damages regardless of the number of 

survivors, the only asserted legitimate State interest is the alleviation of rising 

medical malpractice insurance premiums paid by the affected doctors. However, 

as the plurality explains, there is no mechanism in place to assure that savings are 

actually passed on from the insurance companies to the doctors. See plurality op. 

at 31-34 (Lewis, J.) (explaining that section 766.118 contains no requirement that 

insurance companies use the acquired savings to lower malpractice premiums, 

discussing how subdivision (8) was subsequently repealed, and reviewing the 

reasoning of other courts that have expressed concern about the constitutionality of 

a damages cap in light of this missing link). 

Of course, the statutory cap on noneconomic damages provides no 

commensurate benefit to the victims of medical malpractice, and if there is also no 

commensurate benefit to the doctors and hospitals involved in medical malpractice 

litigation, then only the insurance companies benefit in the form of an increase in 

profits. See id. This critical missing link causes me to believe that the statutory 

cap on noneconomic damages in medical malpractice actions not only fails the 
- 51 -

smell test, but the rational basis test as well, especially in light of the fact that 

subdivision (8) was repealed as “obsolete.” See id. at 33. In other words, the 

statutory cap on noneconomic damages fails the rational basis test because “the 

Legislature could not have had any reasonable ground for believing that there were 

public considerations justifying the particular classification and distinction made,” 

North Ridge General Hospital, Inc. v. City of Oakland Park, 374 So. 2d 461, 465 

(Fla. 1979), since an aggregate cap on damages without regard to the number of 

claimants bears no rational relationship to the asserted State interest in “alleviating 

the financial crisis in the medical liability insurance industry.” Phillipe, 769 So. 2d 

at 971. 

Finally, I strongly agree with the plurality that “even if a ‘crisis’ existed 

when section 766.118 was enacted, a crisis is not a permanent condition.” 

Plurality op. at 35 (Lewis, J.). As I stated in my dissent in Mizrahi v. North Miami 

Medical Center, Ltd., 761 So. 2d 1040 (Fla. 2000):

There is no indication that the past medical malpractice crisis 

continues into the present. If the medical malpractice crisis does not 

continue into the present, I fail to see how a past crisis can justify the 

permanent exclusion of an entire class of victims from seeking 

compensation for pain and suffering damages due to the wrongful 

death of their parents as a result of medical malpractice.

Indeed, it is a “settled principle of constitutional law” that 

although a statute is constitutionally valid when enacted, that statute 

may become constitutionally invalid due to changes in the conditions 

to which the statute applies. See Conner v. Cone, 235 So. 2d 492, 498 

(Fla. 1970); see also Georgia S. & F. Ry. Co. v. Seven-Up Bottling 

Co. of Southeast Ga., 175 So. 2d 39, 40 (Fla. 1965). Accordingly, 
- 52 -

while it is not our role to reexamine legislative fact-finding, we also 

need not blindly accept the Legislature’s conclusions, especially when 

such conclusions may no longer be valid due to changed conditions. 

See Seagram-Distillers Corp. v. Ben Greene, Inc., 54 So. 2d 235, 236 

(Fla. 1951); see also Conner

. . . .

, 235 So. 2d at 498.

All other adult children who lose their parents as a result of 

other negligent conduct have the right to recover pain and suffering 

damages if their parent died without a spouse. See

. . . .

§ 768.21(8), Fla. 

Stat. (1999). However, in the case of adult children of medical 

malpractice victims, the Legislature has denied compensation for 

mental pain and suffering not because the claims of the adult children 

are meritless, but because of the adult children’s age and because their 

parents died as a result of medical malpractice. . . . 

In sum, there is no indication that the distinction drawn by the 

statute bears a reasonable relationship to a legitimate state interest 

associated with ensuring accessible health care. Further, there is no 

indication that the medical malpractice crisis that formed the basis for 

treating this class of survivors differently than all other adult children 

even continues to this day. I therefore believe that the challengers of 

this statute have met their burden and have demonstrated that the 

distinction drawn by the Legislature is arbitrary.

Id. at 1043-44 (Pariente, J., dissenting) (emphasis added) (footnote omitted).

The same reasons that led me to conclude that the continued deprivation of 

wrongful death actions to a class of survivors in medical malpractice actions was a 

denial of equal protection in Mizrahi apply in this context as well. There is no 

evidence of a continuing medical malpractice crisis that would justify the arbitrary 

reduction of survivors’ noneconomic damages in wrongful death cases based on 

the number of survivors. This arbitrary reduction punishes the survivors of victims 

of medical malpractice without any commensurate benefit to the survivors and 
- 53 -

without a rational relationship to the goal of reducing medical malpractice 

premiums. Accordingly, like the plurality, I would answer the first rephrased 

certified question in the affirmative and hold that Florida’s statutory cap on 

noneconomic damages is unconstitutional as applied to wrongful death actions. 

III. Disagreement with the Plurality Opinion

Although I agree with many aspects of the plurality opinion and with the 

ultimate conclusion as to the unconstitutionality of the statute, I cannot join in all 

of the plurality’s legal analysis. In particular, my disagreement stems from my 

view that our precedent does not allow this Court to engage in the type of 

expansive review of the Legislature’s factual and policy findings that the plurality 

engages in when undertaking a constitutional rational basis analysis. 

I emphasize that I have no reason to question the plurality’s excellent 

scholarship regarding the flaws in the Legislature’s conclusions as to the existence 

of a medical malpractice crisis. See plurality op. at 18-28 (Lewis, J.). In my view, 

however, the rational basis test articulated by this Court, based on precedent from 

the United States Supreme Court, is a deferential standard. As explained by this 

Court in Echarte, 618 So. 2d at 196, “the Legislature’s factual and policy findings 

are presumed correct” in a rational basis analysis unless there has been a showing 

made that the findings are “clearly erroneous.” 
- 54 -

The plurality relies on a case, North Florida Women’s Health and 

Counseling Services, Inc. v. State, 866 So. 2d 612, 627 (Fla. 2003), involving a 

fundamental right, for the proposition that “courts must conduct their own inquiry” 

of the Legislature’s findings. See plurality op. at 21 (Lewis, J.). My primary 

disagreement with the plurality’s analysis begins with the extensive discussion that 

questions the “alleged medical malpractice crisis” and relies on North Florida 

Women’s Health to support the plurality’s review of available data to consider the 

“factors and circumstances involved.” Plurality op. at 18, 21 (Lewis, J.). 

North Florida Women’s Health involved the fundamental right to privacy, 

which required strict scrutiny review, rather than rational basis review, and in 

North Florida Women’s Health, a trial court had made findings of fact based on a 

trial where both parties had the opportunity to present evidence on the underlying 

issues. See N. Fla. Women’s Health, 866 So. 2d at 616. Although the plurality 

capably demonstrates that the Legislature’s conclusions as to the existence of a 

medical malpractice crisis may be questionable, I respectfully conclude that there 

is simply no precedent for this Court to engage in its own independent evaluation 

and reweighing of the facts and legislative policy findings, as done by the plurality, 

when conducting a rational basis analysis. 

The plurality asserts that Warren v. State Farm Mutual Automobile 

Insurance Co., 899 So. 2d 1090, 1095 (Fla. 2005), stands for the proposition that 
- 55 -

the rational basis test envisions judicial consideration of the existing factors and 

circumstances to determine whether the legislative findings were fully supported. 

My review of Warren and the cases on which it relied, however, reveals that this 

Court has never engaged in the type of expansive, independent review when 

conducting a rational basis inquiry that the plurality undertakes in this case. 

Instead, as Warren explained, the rational basis test must be undertaken “in a light 

deferential to the Legislature’s action.” Warren, 899 So. 2d at 1096. 

Accordingly, in my view, despite the plurality’s thoughtful and scholarly 

approach to analyzing the alleged justification for the medical malpractice crisis, 

there has been no showing made in this case that the Legislature’s findings as to 

the existence of a crisis at that time were “clearly erroneous.” Echarte, 618 So. 2d 

at 196. I emphasize again, however, that I agree with many aspects of the plurality 

opinion, particularly the conclusion that the arbitrary reduction of survivors’ 

noneconomic damages in wrongful death cases based on the number of survivors 

lacks a rational relationship to the goal of reducing medical malpractice premiums. 

IV. Conclusion

Based on the above, I concur with the plurality’s decision to hold the cap on 

wrongful death noneconomic damages in medical malpractice actions 

unconstitutional but do not join in all of the plurality opinion’s reasoning. 

QUINCE and PERRY, JJ., concur.
- 56 -

POLSTON, C.J., dissenting.

I respectfully dissent because the plurality disregards the rational basis 

standard prescribed by our precedent as well as the Legislature’s policy role under 

Florida’s constitution. The Legislature’s policy choice of enacting a cap of $1 

million on noneconomic damages in medical malpractice cases involving death is 

rationally related to the legitimate state interest of decreasing medical malpractice 

insurance rates and increasing the affordability and availability of health care in 

Florida. Therefore, under our precedent, the cap does not violate Florida’s 

constitutional guarantee of equal protection. It also does not violate the access to 

courts, jury trial, and separation of powers provisions of the Florida Constitution. 

Accordingly, I would answer the four certified questions posed by the Eleventh 

Circuit Court of Appeals in the negative. 

I. Background

Justice Lewis’ plurality opinion accurately quotes the Eleventh Circuit’s 

description of Michelle McCall’s tragic death following the birth of her son. Ms. 

McCall’s parents and her son’s father (on behalf of her son) filed suit against the 

United States pursuant to the Federal Tort Claims Act (FTCA), which provides that 

the United States is liable for torts to the same extent as a private individual would 

be under the applicable state’s law. Estate of McCall v. United States, 642 F.3d 

944, 947 (11th Cir. 2011); Estate of McCall v. United States, 663 F. Supp. 2d 
- 57 -

1276, 1288 (N.D. Fla. 2009). After a two-day bench trial, the federal district court 

ruled that the United States was liable for Ms. McCall’s death and found that 

“Plaintiffs’ economic damages, or financial losses, amounted to $980,462.40.” 

McCall, 642 F.3d at 947. Additionally, the federal district court “found that 

Plaintiffs’ noneconomic damages, or nonfinancial losses, totaled $2 million, 

including $500,000 for Ms. McCall’s son and $750,000 for each of her parents.” 

Id. The federal district court then applied Florida’s statutory cap pursuant to 

section 766.118(2), Florida Statutes (2005), to limit Plaintiffs’ recovery for 

noneconomic damages to an aggregate of $1 million. Id. The $1 million capped 

amount for noneconomic damages “will be equitably divided among the eligible 

survivors in proportion to their respective awards.” McCall, 663 F. Supp. 2d at 

1295. The federal district court “also denied Plaintiffs’ motion challenging the 

constitutionality of Florida’s statutory cap under both the Florida and United States 

Constitutions.” McCall, 642 F.3d at 947. 

On appeal, the Eleventh Circuit considered multiple constitutional 

challenges to Florida’s statutory cap on noneconomic damages. First, the Eleventh 

Circuit applied rational basis review to hold that Florida’s cap does not violate the 

equal protection clause of the Fourteenth Amendment to the United States 

Constitution. Id. at 950-51. The Eleventh Circuit reasoned as follows:

Plantiffs ask us to second guess the legislature’s judgment in enacting 

a “per incident” rather than “per claimant” statutory cap. However, 
- 58 -

“equal protection is not a license for courts to judge the wisdom, 

fairness, or logic of legislative choices.” Beach Commc’ns, Inc., 508 

U.S. at 313. The legislature identified a legitimate governmental 

purpose in passing the statutory cap, namely to reduce the cost of 

medical malpractice premiums and health care. See

Id. at 951. The Eleventh Circuit also rejected the plaintiffs’ argument that the cap 

fails rational basis review because “the Florida legislature ‘had no objective, 

factual basis for believing’ that a cap on noneconomic damages . . . would reduce 

the cost of medical malpractice insurance.” Id. at 950. To the contrary, the 

Eleventh Circuit found the Legislature issued a report on the issue, held public 

hearings, heard expert testimony, and reviewed another report prepared by the 

Governor’s Task Force that recommended a per incident cap to remedy the 

problem. Id. at 950-51.

Fla. Stat. § 

766.201. The means that Florida chose, a per incident cap on 

noneconomic damages, bears a rational relationship to that end. The 

Florida legislature could reasonably have concluded that such a cap 

would reduce damage awards and in turn make medical malpractice 

insurance more affordable and healthcare more available. 

Additionally, the Eleventh Circuit held that the cap on noneconomic 

damages does not constitute a taking either under the Fifth Amendment to the 

United States Constitution or under section 6 of article X of the Florida 

Constitution. Id. at 951. The Eleventh Circuit stated that the cap does not deprive 

the plaintiffs of a vested right, explaining that the cap was enacted in 2003 before 

the medical malpractice at issue in the case took place in 2006. Id.
- 59 -

Finally, rather than deciding the plaintiffs’ remaining challenges to the cap 

under the Florida Constitution, the Eleventh Circuit certified to this Court the 

following questions:

(1) Does the statutory cap on noneconomic damages, Fla. Stat. § 

766.118, violate the right to equal protection under Article I, Section 2 

of the Florida Constitution?

(2) Does the statutory cap on noneconomic damages, Fla. Stat. § 

766.118, violate the right of access to the courts under Article I, 

Section 21 of the Florida Constitution?

(3) Does the statutory cap on noneconomic damages, Fla. Stat. § 

766.118, violate the right to trial by jury under Article I, Section 22 of 

the Florida Constitution? 

(4) Does the statutory cap on noneconomic damages, Fla. Stat. § 

766.118, violate the separation of powers guaranteed by Article II, 

Section 3 and Article V, Section 1 of the Florida Constitution?

Id. at 952-53.

II. Florida’s Caps on Noneconomic Damages

Section 766.118, Florida Statutes (2005), places limitations on noneconomic 

damages11

 

11. Section 766.202(8), Florida Statutes (2005), defines noneconomic 

damages as “nonfinancial losses that would not have occurred but for the injury 

giving rise to the cause of action, including pain and suffering, inconvenience, 

physical impairment, mental anguish, disfigurement, loss of capacity for 

enjoyment of life, and other nonfinancial losses to the extent the claimant is 

entitled to recover such damages under general law, including the Wrongful Death 

Act.”

in medical malpractice cases, and the limitations vary depending upon 

the circumstances. For cases involving the negligence of practitioners providing 
- 60 -

nonemergency care, the limitation is $500,000 per claimant, per incident, and per 

practitioner:

With respect to a cause of action for personal injury or wrongful death 

arising from medical negligence of practitioners, regardless of the 

number of such practitioner defendants, noneconomic damages shall 

not exceed $500,000 per claimant. No practitioner shall be liable for 

more than $500,000 in noneconomic damages, regardless of the 

number of claimants.

§ 766.118(2)(a), Fla. Stat. (2005). If the negligence resulted in death or a 

permanent vegetative state, the cap rises to $1 million:

Notwithstanding paragraph (a), if the negligence resulted in a 

permanent vegetative state or death, the total noneconomic damages 

recoverable from all practitioners, regardless of the number of 

claimants, under this paragraph shall not exceed $1 million.

§ 766.118(2)(b), Fla. Stat. (2005). The cap also rises to $1 million dollars in the 

absence of death or a permanent vegetative state if the trial court determines that a 

manifest injustice would occur or if the negligence resulted in a catastrophic injury. 

Id. However, section 766.118(2)(c), Florida Statutes (2005), emphasizes that 

“[t]he total noneconomic damages recoverable by all claimants from all 

practitioner defendants under this subsection shall not exceed $1 million in the 

aggregate.” 

For cases involving nonpractitioners providing nonemergency care, the 

limitation is $750,000. § 766.118(3)(a), Fla. Stat. (2005). This cap rises to $1.5 

million if the negligence caused a permanent vegetative state or death or if the trial 
- 61 -

court determines that a manifest injustice would occur or if the trier of fact 

determines that a catastrophic injury resulted. § 766.118(3)(b), Fla. Stat. (2005). 

And section 766.118(3)(d), Florida Statutes (2005), provides that “[t]he total 

noneconomic damages recoverable by all claimants from all nonpractitioner 

defendants under this subsection shall not exceed $1.5 million in the aggregate.”

These limitations on noneconomic damages are part of an overall legislative 

plan enacted in 2003 to address the rising costs of medical liability insurance and 

the affordability and availability of healthcare in Florida. See ch. 2003-416, Laws 

of Fla. Other components of the plan include new healthcare facilities regulations, 

insurance regulation, license requirements, and agency requirements. Id. 

The legislative effort began with the convening of the House Select 

Committee on Medical Liability Insurance, which “conducted an inquiry into the 

possible causes and potential solutions to the vexing problems associated with the 

availability of medical liability insurance in Florida.” Fla. H. Select Comm. on 

Med. Liab. Ins., Select Comm. on Med. Liab. Ins. Rep., at 2 (March 2003) 

(available at Fla. Dept. of State, Fla. State Archives, Tallahassee, Fla.). The Select 

Committee examined “how the reduced availability of affordable medical liability 

insurance affects the availability of medical services” and was “mindful of the 

need to maintain the right of access to redress when citizens are harmed during the 

delivery of medical services.” Id. at 3. The Select Committee held a series of 
- 62 -

meetings in Tallahassee, held four hearings outside the capital, and published an 82 

page report (not including appendices). Id. It “received testimony from experts in 

each of the professional areas impacted” and reviewed records from efforts to 

address prior crises. Id. at 4. 

The Select Committee also reviewed the record of the Governor’s Select 

Task Force on Health Care Professional Liability Insurance, which produced a 

“345 page report as well as thirteen volumes of supportive materials.” Id. at 9. 

The Governor’s Task Force “undertook a comprehensive review of published 

studies and relevant literature” and held ten meetings at which it received extensive 

testimony and information. Gov.’s Select Task Force on Healthcare Prof. Liab. 

Ins., Gov.’s Task Force on Healthcare Prof. Liab. Ins. Rep., at 3, iv (2003). The 

five members of the Governor’s Task Force were (1) John Hitt, President of 

University of Central Florida, (2) Richard Beard, Trustee of University of South 

Florida, (3) Marshall Criser, Jr., President Emeritus of University of Florida, (4) 

Fred Gainous, President of Florida A&M University, and (5) Donna Shalala, 

President of University of Miami. Id. at 3. In the end, the Legislature based many 

of its findings and its policies upon the work of the Governor’s Task Force, 

including the per incident cap on noneconomic damages. See, e.g., ch. 2003-416, 

§ 1, Laws of Fla. 
- 63 -

Specifically, when enacting chapter 2003-416, Laws of Florida, the 

Legislature made the following findings:

(1) The Legislature finds that Florida is in the midst of a 

medical malpractice insurance crisis of unprecedented magnitude.

(2) The Legislature finds that this crisis threatens the quality 

and availability of health care for all Florida citizens.

(3) The Legislature finds that the rapidly growing population 

and the changing demographics of Florida make it imperative that 

students continue to choose Florida as the place they will receive their 

medical educations and practice medicine.

(4) The Legislature finds that Florida is among the states with 

the highest medical malpractice insurance premiums in the nation.

(5) The Legislature finds that the cost of medical malpractice 

insurance has increased dramatically during the past decade and both 

the increase and the current cost are substantially higher than the 

national average.

(6) The Legislature finds that the increase in medical 

malpractice liability rates is forcing physicians to practice medicine 

without professional liability insurance, to leave Florida, to not 

perform high-risk procedures, or to retire early from the practice of 

medicine.

(7) The Legislature finds that there are certain elements of 

damage presently recoverable that have no monetary value, except on 

a purely arbitrary basis, while other elements of damage are either 

easily measured on a monetary basis or reflect ultimate monetary loss.

(8) The Governor created the Governor’s Select Task Force on 

Healthcare Professional Liability Insurance to study and make 

recommendations to address these problems.

(9) The Legislature has reviewed the findings and 

recommendations of the Governor’s Select Task Force on Healthcare 

Professional Liability Insurance.

(10) The Legislature finds that the Governor’s Select Task 

Force on Healthcare Professional Liability Insurance has established 

that a medical malpractice crisis exists in the State of Florida which 

can be alleviated by the adoption of comprehensive legislatively 

enacted reforms. 
- 64 -

(11) The Legislature finds that making high-quality health care 

available to the citizens of this state is an overwhelming public 

necessity.

(12) The Legislature finds that ensuring that physicians 

continue to practice in Florida is an overwhelming public necessity.

(13) The Legislature finds that ensuring the availability of 

affordable professional liability insurance for physicians is an 

overwhelming public necessity.

(14) The Legislature finds, based upon the findings and 

recommendations of the Governor’s Select Task Force on Healthcare 

Professional Liability Insurance, the findings and recommendations of 

various study groups throughout the nation, and the experience of 

other states, that the overwhelming public necessities of making 

quality health care available to the citizens of this state, of ensuring 

that physicians continue to practice in Florida, and of ensuring that 

those physicians have the opportunity to purchase affordable 

professional liability insurance cannot be met unless a cap on 

noneconomic damages is imposed.

(15) The Legislature finds that the high cost of medical 

malpractice claims can be substantially alleviated by imposing a 

limitation on noneconomic damages in medical malpractice actions.

(16) The Legislature further finds that there is no alternative 

measure of accomplishing such result without imposing even greater 

limits upon the ability of persons to recover damages for medical

malpractice.

(17) The Legislature finds that the provisions of this act are 

naturally and logically connected to each other and to the purpose of 

making quality health care available to the citizens of Florida.

(18) The Legislature finds that each of the provisions of this act 

is necessary to alleviate the crisis relating to medical malpractice 

insurance.

III. Equal Protection

McCall argues that Florida’s cap of $1 million on noneconomic damages 

pursuant to section 766.118(2)(b), Florida Statutes, violates the right to equal 

protection under the Florida Constitution by imposing additional burdens when an 
- 65 -

act of medical negligence gives rise to multiple claims as well as when the 

negligent act causes severe injuries. However, under the rational basis test our 

precedent requires, McCall’s argument is without merit. 

Article I, section 2 of the Florida Constitution provides that “[a]ll natural 

persons, female and male alike, are equal before the law. . . .” Florida’s courts 

have interpreted this provision consistently with interpretations of the equal 

protection clause of the United States Constitution. See, e.g., Duncan v. Moore, 

754 So. 2d 708, 712 (Fla. 2000); Sasso v. Ram Prop. Mgmt., 431 So. 2d 204, 211 

(Fla. 1st DCA 1983).

As this Court explained in Duncan, 754 So. 2d at 712 (citations omitted), 

[e]qual protection is not violated merely because some persons 

are treated differently than other persons. It only requires that persons 

similarly situated be treated similarly. In the absence of a 

fundamental right or a protected class, equal protection demands only 

that a distinction which results in unequal treatment bear some 

rational relationship to a legitimate state purpose. This is known as 

the rational basis test.

In this case, McCall argues that section 766.118(2)(b)’s cap on noneconomic 

damages creates unequal treatment between those with noneconomic damages over 

the cap and those with noneconomic damages under the cap, claiming that the most 

severely injured are discriminated against. McCall also claims that the per incident 

cap creates a discriminatory classification between those who are members of 

larger families and those who are not. Because these alleged classifications do not 
- 66 -

involve a protected class or a fundamental right, McCall’s equal protection claim 

must be analyzed using the rational basis test. 

“Under a ‘rational basis’ standard of review a court should inquire only 

whether it is conceivable that the regulatory classification bears some rational 

relationship to a legitimate state purpose[:]”

The burden is upon the party challenging the statute or regulation to 

show that there is no

Fla. High Sch. Activities Ass’n v. Thomas, 434 So. 2d 306, 308 (Fla. 1983); see 

also Westerheide v. State, 831 So. 2d 93, 112 (Fla. 2002). It is not the judiciary’s 

task under the rational basis standard “to determine whether the legislation 

achieves its intended goal in the best manner possible, but only whether the goal is 

legitimate and the means to achieve it are rationally related to the goal.” 

Loxahatchee River Envtl. Control Dist. v. Sch. Bd. of Palm Beach Cnty., 496 So. 

2d 930, 938 (Fla. 4th DCA 1986). 

conceivable factual predicate which would 

rationally support the classification under attack. Where the 

challenging party fails to meet this difficult burden, the statute or 

regulation must be sustained.

This Court has employed the rational basis test in its prior decisions 

involving equal protection challenges to limitations on damages in medical 

malpractice cases. For example, in Pinillos v. Cedars of Lebanon Hospital Corp., 

403 So. 2d 365 (Fla. 1981), this Court applied a rational basis analysis when 

rejecting an equal protection challenge under both the Florida and federal 
- 67 -

constitutions to a statute that required judgments in medical malpractice actions to 

be reduced by amounts received from collateral sources. This Court explained that 

the Legislature, when enacting the statute, had determined that there was a medical 

malpractice liability insurance crisis in Florida that was threatening public health. 

Pinillos, 403 So. 2d at 367. Then, this Court concluded that “the classification 

created by section 768.50[, Florida Statutes (1979),] bears a reasonable relationship 

to the legitimate state interest of protecting the public health by ensuring the 

availability of adequate medical care for the citizens of this state.” Id. at 368.

In 1993, in a case primarily denying an access to courts challenge, this Court 

held that caps on noneconomic damages in certain medical malpractices cases did 

not violate equal protection under either the United States or Florida constitutions. 

See Univ. of Miami v. Echarte, 618 So. 2d 189 (Fla. 1993) (“[W]e have also 

considered the other constitutional claims and hold that the statutes do not violate 

the right to trial by jury, equal protection guarantees, substantive or procedural due 

process rights, the single subject requirement, the taking clause, or the nondelegation doctrine.”). The statutes at issue in Echarte capped noneconomic 

damages in medical malpractice cases at $250,000 if the parties agreed to arbitrate. 

Id. at 193 (describing section 766.207(7), Fla. Stat. (Supp. 1988)). They also 

capped noneconomic damages at $350,000 if the plaintiff proceeded to trial after 
- 68 -

refusing a defendant’s offer to arbitrate. Id. (describing section 766.209(4), Fla. 

Stat. (Supp. 1988)). 

Thereafter, in April 2000, this Court held that the statute precluding adult 

children from recovering noneconomic damages for a parent’s death due to 

medical malpractice did not violate the equal protection guarantees of the Florida 

and federal constitutions. See Mizrahi v. N. Miami Med. Ctr., 761 So. 2d 1040 

(Fla. 2000). In Mizrahi, this Court employed the rational basis test and explained 

that “the Legislature referred to and discussed the medical malpractice crisis and 

its adverse impact on the accessibility of health care during the passage of section 

768.21.” Id. at 1042. And this Court stated that it had previously recognized the 

medical malpractice crisis as a legitimate state interest in Echarte. Id. at 1042 n.3. 

This Court further explained that “limiting claims that may be advanced by some 

claimants would proportionally limit claims made overall and would directly affect 

the cost of providing health care by making it less expensive and more accessible.” 

Id. at 1043. Thus, because the exclusion is rationally related to controlling costs 

and healthcare accessibility, the statute at issue in Mizrahi did not violate equal 

protection. Id.

But, in June 2000, this Court in dicta expressed equal protection concerns 

about the noneconomic damages caps that had previously passed constitutional 

muster in Echarte. See St. Mary’s Hosp. v. Phillipe, 769 So. 2d 961 (Fla. 2000). 
- 69 -

In Phillipe, this Court held that the noneconomic damages caps under section 

766.207 applied to claimants individually rather than on a per incident basis. 769 

So. 2d at 972. In reaching this holding, this Court first concluded that “section 

766.207(7)(b) is neither clear nor unambiguous.” Id. at 968. Then, this Court 

found that the Legislature’s intent with the statute was to “provide substantial 

incentives to claimants and defendants to voluntarily submit their cases to binding 

arbitration” and that this intent “can be obtained by interpreting section 

766.207(7)(b) so that each claimant is fairly and reasonably compensated for his or 

her pain and suffering.” Id. at 970. Moreover, this Court stated, “were we to 

interpret the noneconomic damages cap to apply to all claimants in the aggregate, 

we conclude that such an interpretation would create equal protection concerns.” 

Id. at 971. Thus, this Court mentioned in Phillipe that “[d]ifferentiating between a 

single claimant and multiple claimants bears no rational relationship to the 

Legislature’s stated goal of alleviating the financial crisis in the medical liability 

insurance industry.” Id.

However, this Court very recently rejected a challenge that was nearly 

identical to the equal protection concern this Court had mentioned in Phillipe. 

Specifically, in Samples v. Florida Birth-Related Neurological Injury 

Compensation Ass’n, 114 So. 3d 912, 917 (Fla. 2013), the Samples argued that the 

$100,000 parental award under the Florida Birth-Related Injury Compensation 
- 70 -

Plan violated equal protection under the Florida and federal constitutions because 

“those parents who apply for an award alone can receive twice the amount awarded 

to parents who share or split a parental award.” Applying the rational basis test, 

this Court in Samples concluded that “[l]imiting the parental award to $100,000 

per claim—as opposed to per parent—is rationally related to maintaining the 

actuarial soundness of the Plan.” Id. Therefore, this Court upheld the statutory 

provision. Id.

Similar to this Court’s precedent, the Third, Fourth, Fifth, Sixth, Ninth, and 

Eleventh Circuits have all upheld limitations on noneconomic damages in medical 

malpractice cases against equal protection challenges. See McCall, 642 F.3d at 

951; Smith v. Botsford Gen. Hosp., 419 F.3d 513, 520 (6th Cir. 2005) (“By 

limiting at least one component of health care costs, the noneconomic damages 

limitation is rationally related to its intended purpose.”) (quoting Zdrojewski v. 

Murphy, 657 N.W.2d 721, 739 (Mich. Ct. App. 2002)); Boyd v. Bulala, 877 F.2d 

1191, 1197 (4th Cir. 1989) (holding that cap on all damages, including economic 

damages, does not deny equal protection because it “bears a reasonable relation to 

a valid legislative purpose—the maintenance of adequate health care services in 

the Commonwealth of Virginia”); Davis v. Omitowoju, 883 F.2d 1155, 1158 (3d 

Cir. 1989) (“Clearly the Virgin Island’s decision to curb, through legislation, the 

high costs of malpractice insurance and thereby promote quality medical care to 
- 71 -

the residents of the islands, provides a rational basis for capping the amount of 

damages that can be awarded a plaintiff.”); Lucas v. United States, 807 F.2d 414, 

422 (5th Cir. 1986) (“Lucas has failed to convince us that there is no reasonable 

basis for the Texas legislature to conclude that this ceiling on recovery from certain 

institutions is not conceivably related to the availability and cost of malpractice 

insurance and that such insurance and the distribution of medical care in Texas are 

not conceivably linked.”); Hoffman v. United States, 767 F.2d 1431, 1437 (9th Cir. 

1985) (“The record clearly supports a finding that the California Legislature had a 

‘plausible reason’ to believe that the limitations on noneconomic recovery would 

limit the rise in malpractice insurance costs.”). 

Additionally, multiple state courts have rejected equal protection challenges 

to statutory caps on noneconomic damages. See, e.g., Fein v. Permanente Med. 

Grp., 695 P.2d 665 (Cal. 1985); Zdrojewski v. Murphy, 657 N.W.2d 721 (Mich. 

Ct. App. 2002); Adams v. Children’s Mercy Hosp., 832 S.W.2d 898 (Mo. 1992), 

overruled on other grounds by Watts v. Lester E. Cox Med. Ctrs., 376 S.W.3d 633, 

636 (Mo. 2012); Judd v. Drezga, 103 P.3d 135 (Utah 2004); Etheridge v. Med. Ctr. 

Hosps., 376 S.E.2d 525 (Va. 1989); Robinson v. Charleston Area Med. Ctr. Inc., 

414 S.E.2d 877 (W. Va. 1991).

Applying our rational basis precedent, it is clear that the statutory cap in this 

case passes constitutional muster. When enacting the noneconomic damages cap 
- 72 -

at issue here, the Legislature found that “Florida is in the midst of a medical 

malpractice insurance crisis of unprecedented magnitude” and that “this crisis 

threatens the quality and availability of health care for all Florida citizens.” Ch. 

2003-416, at § 1. The Legislature concluded that the “cost of medical malpractice 

insurance has increased dramatically during the past decade” and that “both the 

increase and the current cost are substantially higher than the national average.” 

Id. As a result, physicians are being forced “to practice medicine without 

professional liability insurance, to leave Florida, to not perform high-risk 

procedures, or to retire early from the practice of medicine.” Id.

This Court has previously recognized the existence of a medical malpractice 

insurance crisis as a legitimate state interest. See Mizrahi, 761 So. 2d at 1042 n.3; 

Echarte, 618 So. 2d at 196-97. Further, it is undisputed that increasing the quality, 

availability, and affordability of health care for Floridians is a legitimate state 

interest. And the Legislature’s policy choice of enacting a cap on noneconomic 

damages in medical malpractice cases is rationally related to these state interests. 

As this Court explained in Mizrahi, 761 So. 2d at 1043, “limiting claims that may 

be advanced by some claimants would proportionally limit claims made overall 

and would directly affect the costs of providing health care by making it less 

expensive and more accessible.” In fact, “it is hard to conceive a more rational 

means of assuaging the fear of huge damage awards and reining in insurance costs 
- 73 -

in the case of a victim’s death than by limiting noneconomic wrongful death 

damages.” Maurin v. Hall, 682 N.W.2d 866, 890-91 (Wis. 2004). 

More specifically, the Florida Legislature could have rationally believed that 

the cap on noneconomic damages under section 766.118(2)(b) would reduce 

malpractice damage awards, which would thereby increase predictability in the 

medical malpractice insurance market and lead to reduced insurance premiums. 

Then, as a result of decreased insurance premiums, physicians would be more 

willing to stay in Florida and perform high-risk procedures at a lower cost to 

Floridians.12

McCall contends that the cap at issue in this case violates Florida’s equal 

protection guarantee because it applies on a per incident, rather than a per claimant, 

 

 

12. In fact, the Governor’s Task Force, upon which the Legislature 

expressly relied, concluded as much:

[I]mposing caps on non-economic damages in medical malpractice 

cases will significantly reduce the exposure of Florida healthcare 

providers to risk of loss from jury awards of inherently subjective 

damages. Such a reduction of risk will make malpractice losses much 

more predictable, and thereby lead to stability in malpractice 

insurance premium rates.

A reduction in potential liability and resulting stability will 

encourage more malpractice insurers to participate in the Florida 

market. This, along with the reduced exposure to risk, will permit 

insurers to charge lower premiums, on a sound financial basis. Lower 

premiums will encourage providers (particularly those in high-risk 

specialties) to offer healthcare services to Floridians, and persons 

visiting this state, and to do so at lower prices.

Gov.’s Task Force Report, at xvii.
- 74 -

basis. However, the Legislature could have reasonably believed that a per incident 

cap would more effectively reduce noneconomic damages awards and create more 

stability in the insurance market than a per claimant cap would. A per incident cap 

leads to more predictability in the insurance market since the noneconomic 

damages cannot exceed the cap in any particular instance of malpractice regardless 

of the number of individual claimants. And the Legislature could have reasonably 

believed that this increased predictability would more effectively decrease medical 

malpractice insurance rates, thereby keeping more physicians in Florida to provide 

more access to quality health care (including high-risk procedures) at a lower cost 

to Floridians. 

As a federal district court ably stated when rejecting a similar per incident 

argument regarding the same statutory cap at issue here,

[t]he aggregate limit on non-economic damages—applying to each 

incident regardless of the number of claimants—serves precisely the 

same legitimate interest served by individual caps: by reducing 

damage awards, limits on damages make medical malpractice 

insurance more affordable and quality healthcare services more 

available. A cap applicable to each occurrence, in cooperation with 

caps individually applicable to each claimant, reduces damage awards 

as a matter of mathematical certainty, enhances needed predictability, 

places a calculable limit on the exposure of healthcare and insurance 

providers, reduces malpractice insurance premiums, and promotes the 

availability of quality healthcare. 

M.D. v. United States, 745 F. Supp. 2d 1274, 1280-81 (M.D. Fla. 2010).
- 75 -

McCall also argues that the noneconomic damages cap violates equal 

protection because the more severely injured may not recover their full damages, 

unlike those whose damages fall under the cap. However, if this were an equal 

protection violation, no cap on damages could survive equal protection review 

because all caps have that effect. And this Court has rejected equal protection 

challenges to caps on damages previously. See Echarte, 618 So. 2d 189; see also

Phillipe, 769 So. 2d 961. In fact, in Echarte, this Court rejected an equal protection 

challenge under the Florida Constitution to statutory caps on noneconomic 

damages when the parties and amici advanced the precise argument that McCall 

raises here, namely that the noneconomic damages cap discriminated against the 

most severely injured. Therefore, under this Court’s precedent, McCall’s equal 

protection argument based upon the fact that some may not fully recover is without 

merit. Ultimately, “the Legislature simply may have felt that it was fairer to 

malpractice plaintiffs in general to reduce only the very large noneconomic 

damage awards, rather than to diminish the more modest recoveries for pain and 

suffering and the like in the great bulk of cases.” Fein, 695 P.2d at 683.

Rather than applying the analysis prescribed by our precedent, the plurality 

concludes that the statutory cap is “unfair” and “purely arbitrary” by citing two 

other state supreme courts and improperly relying on dicta from our decision in 

Phillipe, while ignoring the fact that this Court in Samples very recently rejected 
- 76 -

an argument that was nearly identical to the dicta expressed in Phillipe. See

plurality op. at 9-13 (Lewis, J.). 

Even more disturbingly, and as acknowledged by Justice Pariente to be 

inappropriate and unprecedented,13

 

13. See concurring in result op. at 54 (Pariente, J.) (“[T]here is simply no 

precedent for this Court to engage in its own independent evaluation and 

reweighing of the facts and legislative policy findings, as done by the plurality, 

when conducting a rational basis analysis.”).

Justice Lewis’ plurality opinion addresses 

McCall’s equal protection challenge by conducting a de novo review of medical 

malpractice issues, overruling the findings made by the Legislature, and 

disregarding the evidence upon which those findings were based. Justice Lewis’ 

plurality opinion reweighs the evidence and disbelieves the Governor’s Task Force 

as well as the legislative testimony, claiming that its own independent review has 

revealed that the other two branches were incorrect and that a “bona fide medical 

malpractice crisis” probably did not and certainly does not currently exist. See id.

at 18-28, 35-40. Additionally, despite the Legislature’s and the Task Force’s 

conclusions on the matter after reviewing the evidence, this plurality’s independent 

review has revealed that the “available data” “failed to establish a direct correlation 

between damage caps and reduced malpractice premiums.” Id. at 28, 35. 
- 77 -

While the plurality clearly would have come to a different policy choice than 

the Legislature based upon the hardly unambiguous data14

 

14. Justice Lewis notes that medical malpractice filings have decreased 

significantly since fiscal year 2003-04 and that Florida, according to a 2011 report, 

is now retaining a fairly high percentage of Florida-trained medical students. See

plurality op. at 36-37 (Lewis, J.). While he uses this information to support the 

plurality’s argument that the statutory caps are no longer justified because a 

medical malpractice crisis does not currently exist, this information just as easily 

(and perhaps more likely) supports the argument that the cap has had its intended 

effect and that, if the cap is eliminated, the medical malpractice crisis would return 

in full force. 

that the plurality could 

cull from the record and the internet, that is not the point. Instead, our precedent 

dictates that we employ the rational basis test, which is a relatively easy test for a 

statute to pass and which recognizes and respects the Legislature’s role as the 

primary policymaker in our constitutional system. See McElrath v. Burley, 707 

So. 2d 836, 839 (Fla. 1st DCA 1998) (explaining that the rational basis test 

provides “minimal scrutiny” under which the challenger bears “a heavy burden”); 

see also Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307, 314 (1976) (“This 

inquiry employs a relatively relaxed standard reflecting the Court’s awareness that 

the drawing of lines that create distinctions is peculiarly a legislative task and an 

unavoidable one.”). In fact, the rational basis standard is less stringent than the 

deferential competent substantial evidence standard we employ when reviewing 
- 78 -

our own branch’s findings of fact.15

 

15. Of course, there is competent substantial evidence to support the 

Legislature’s findings of fact. For example, one actuary testified before the 

Governor’s Task Force that “[m]aking losses more predictable is a key to attracting 

companies to provide coverage, and it is also a key to getting more stable pricing 

in the marketplace.” And there was testimony that “[i]n Georgia, physicians pay 

from $5,000 to $6,000 for $1,000,000 of coverage. Thirty miles south, in 

Jacksonville, that costs $27,000.” Moreover, “[i]n one instance, a Fort Lauderdale 

pediatric orthopedic surgeon’s premiums went from $32,000 to $96,000 a year,” 

and, due to the increase, the surgeon planned to move to a state with tort reform. 

 Under the rational basis standard, there just 

has to be a conceivable factual predicate that would provide a rational reason for 

the Legislature to have done what it chose to do. See Fla. High School Activities 

Ass’n, 434 So. 2d at 308 (“The burden is upon the party challenging the statute . . . 

to show that there is no conceivable factual predicate which would rationally 

support the classification under attack. . . .”). The statute does not need to be 

supported by unequivocal evidence in the record from the point in time when the 

statute was enacted or by more recent and allegedly authoritative reports posted on 

the internet. In other words, as Justice Pariente’s concurring in result opinion 

recognizes, this Court is not supposed to conduct an independent review of 

available data. See Heller v. Doe, 509 U.S. 312, 320 (1993) (“A State, moreover, 

has no obligation to produce evidence to sustain the rationality of a statutory 

classification. ‘[A] legislative choice is not subject to courtroom factfinding and 

may be based on rational speculation unsupported by evidence or empirical data.’

”) (quoting F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 315 (1993)). Rather, if 
- 79 -

we can conceive of a possible factual predicate that provides a rational basis in 

furtherance of a legitimate state interest, the statute does not violate the equal 

protection provision of the Florida Constitution.

Here, applying the proper rational basis test, it is clear that the cap on 

noneconomic damages passes muster because it is rationally related to the 

legitimate state interest of decreasing medical malpractice insurance rates and 

increasing the affordability and availability of health care in Florida. Accordingly, 

I would answer the Eleventh Circuit’s equal protection question in the negative and 

then address its access to courts, jury trial, and separation of powers questions.

IV. Access to Courts

Relying on this Court’s decision in Smith v. Department of Insurance, 507 

So. 2d 1080 (Fla. 1987), McCall contends that section 766.118(2)’s $1 million cap 

on noneconomic damages does not satisfy the access to court test set forth in 

Kluger v. White, 281 So. 2d 1 (Fla. 1973). I would hold otherwise.

Section 21 of article I of the Florida Constitution provides that “[t]he courts 

shall be open to every person for redress of any injury, and justice shall be 

administered without sale, denial or delay.” In Kluger, 281 So. 2d at 4, this Court 

enunciated the following test for determining whether a statute violates this 

constitutional guarantee:

[W]here a right of access to the courts for redress for a particular 

injury has been provided by statutory law predating the adoption of 
- 80 -

the Declaration of Rights of the Constitution of the State of Florida, or 

where such right has become a part of the common law of the State 

pursuant to Fla. Stat. § 2.01, F.S.A., the Legislature is without power 

to abolish such a right without providing a reasonable alternative to 

protect the rights of the people of the State to redress for injuries, 

unless the Legislature can show an overpowering public necessity for 

the abolishment of such right, and no alternative method of meeting 

such public necessity can be shown.

In other words, to survive an access to courts challenge, a statute eliminating 

redress for an injury must satisfy at least one of two possible prongs: (1) either the 

statute must provide a reasonable alternative to redress the injury involved, or (2) 

the Legislature must show that there was “an overpowering public necessity for the 

abolishment” and that there was “no alternative method of meeting such public 

necessity.” Id.

In Echarte, 618 So. 2d 189, this Court applied the second prong from Kluger

to hold that the statutory caps on noneconomic damages in medical malpractice 

cases when a party requests arbitration do not violate the right of access to courts. 

Specifically, this Court upheld the $250,000 cap on noneconomic damages if the 

parties agree to voluntary binding arbitration as well as the $350,000 cap if the 

plaintiff refuses a defendant’s offer to arbitrate. In its analysis, this Court in 

Echarte ruled that the first Kluger alternative was satisfied because “[t]he 

defendant’s offer to have damages determined by an arbitration panel provides the 

claimant with the opportunity to receive prompt recovery without the risk and 

uncertainty of litigation or having to prove fault in a civil trial.” Echarte, 618 So. 
- 81 -

2d at 194. Next, this Court held that “[e]ven if the medical malpractice arbitration 

statutes at issue did not provide a commensurate benefit, we would find that the 

statutes satisfy the second prong of Kluger.” Id. at 195. 

In Echarte, this Court explained that the judiciary exercises restraint when 

reviewing the legislative findings necessary to satisfy the second prong of Kluger. 

Specifically, this Court stated the “legislative determinations of public purpose and 

facts are presumed correct and entitled to deference, unless clearly erroneous.” Id.

at 196. This Court explained that “[t]he Legislature has the final word on 

declarations on public policy, and the courts are bound to give great weight to 

legislative determinations of facts.” Id. 

This Court in Echarte began its discussion of the legislative showing of an 

overwhelming public necessity by explaining that the preamble to the statute at 

issue “clearly states the Legislature’s conclusion that the current medical 

malpractice insurance crisis constitutes an ‘overpowering public necessity.’ ” Id. 

This Court also noted that the “Legislature made a specific factual finding that 

‘[m]edical malpractice liability insurance premiums have increased dramatically in 

recent years, resulting in increased unavailability of malpractice insurance for 

some physicians.’ ” Id. (quoting § 766.201(1)(a)). Then, this Court concluded that 

the Legislature’s findings were supported by the work of the Academic Task Force 

for Review of the Insurance and Tort Systems, which found, among other things, 
- 82 -

that “a family physician who performs no surgery and practiced outside Dade and 

Broward Counties saw a 229% increase in medical malpractice insurance 

premiums.” Id. This Task Force had based its findings upon seven public hearings 

and meetings as well as surveys, research projects, and a literature review. Id. at 

196 n.17. Based upon this record, this Court concluded that “the Legislature has 

shown that an ‘overpowering public necessity’ exists.” Id. at 196-97.

Additionally, despite the lack of an express legislative finding on the matter, 

this Court in Echarte held that “the record supports the conclusion that no 

alternative or less onerous method exists.” Id. at 197. This Court noted that “in 

determining whether no alternative means exists to meet the public necessity of 

ending the medical malpractice crisis, the plan as a whole, rather than focusing on 

one specific part of the plan, must be considered.” Id. This Court explained that 

the Task Force believed that “reforms of the civil justice system, of the medical 

regulatory system, and of the insurance system complement each other” and that 

“all are necessary to address the complex problems with multiple causes” of the 

medical malpractice insurance crisis. Id. (quoting the Task Force’s 

recommendations to the Legislature). And this Court in Echarte rejected the 

contention that professional discipline alone would have been an alternative 

method to meet the public necessity at issue, explaining that “the Task Force 

specifically found that: ‘[s]trengthened regulation of medical care providers is not 
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a substitute for tort and insurance reform.’ ” Id. (quoting Task Force). “The Task 

Force specifically stated that even though a small percentage of the physicians 

were responsible for 42.2% of the total claims paid out, the facts did not support 

the conclusion that these doctors were incompetent.” Id. Thus, because it was 

“clear that both the arbitration statute, with its conditional limits on recovery of 

noneconomic damages, and the strengthened regulation of the medical profession 

are necessary to meet the medical malpractice insurance crisis,” this Court in 

Echarte held that the second prong of Kluger was satisfied. Id.

Similar to Echarte, the Legislature when enacting the statute at issue in this 

case expressly found that “Florida is in the midst of a medical malpractice 

insurance crisis of unprecedented magnitude” and that “making high-quality health 

care available to the citizens of this state,” “ensuring that physicians continue to 

practice in Florida,” and “ensuring the availability of affordable professional 

liability insurance for physicians” are overwhelming public necessities. Ch. 2003-

416, at § 1. The Legislature specifically found that “Florida is among the states 

with the highest medical malpractice insurance premiums in the nation” and that 

“the cost of medical malpractice insurance has increased dramatically during the 

past decade and both the increase and the current cost are substantially higher than 

the national average.” Id. Further, the Legislature determined that “the increase in 

medical malpractice liability insurance rates is forcing physicians to practice 
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medicine without professional liability insurance, to leave Florida, to not perform 

high-risk procedures, or to retire early from the practice of medicine.” Id.

 These Legislative findings of an overwhelming public necessity are 

supported by the determinations of the Governor’s Task Force. For example, in its 

report, the Governor’s Task Force concluded that the cost of medical malpractice 

insurance had increased dramatically, explaining the following particulars:

In 2002 the average medical malpractice premium per doctor in 

Florida was 55 percent higher than the national average. Florida’s 

average insurance premiums have increased 64 percent since 1996 

while nationally the average insurance premiums have increased 26 

percent.

Gov.’s Task Force Rep. at v. The Task Force received specific testimony 

indicating that “[i]n Georgia, physicians pay from $5,000 to $6,000 for $1,000,000 

of coverage. Thirty miles south, in Jacksonville, that costs $27,000.” Id. at 76. 

And the Task Force noted that:

[t]he Professional Medical Insurance Services, Inc., underwriters for 

Florida physicians, estimates that, in 2003, for OB/GYNs who 

presently have coverage, costs for $1 million dollar[s] of coverage 

will average between $70,000 and $110,000 per year; $250,000 of 

coverage will cost between $50,000 and $60,000 per year. For 

OB/GYNs seeking new insurance in 2003, estimates show that $1 

million dollars in coverage will cost $150,000 per year[] and $250,000 

in coverage will cost between $90,000 and $107,000 per year. As a 

result of these escalating costs, physicians are simply either under 

insuring or becoming uninsured with regard to their practices. 

Id. at 306. The Task Force found that “[i]n Miami, evidence reflects that 80 

percent of the OB/GYNs carry no insurance and those who do are paying over 
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$207,000 per year for $1 million dollars worth of coverage.” Id. And “[t]he 

number of insurance companies writing medical malpractice policies in Florida 

went from a high of sixty-six companies in 1999 to twelve currently.” Id. at v. 

The Task Force also described testimony indicating that, as a result of these issues, 

over half the doctors in Florida that carry insurance can only afford to carry a 

$250,000 policy even though the most prevalent rate in the rest of the country is 

for a doctor to carry a $1,000,000 policy. Id. at 76. The Task Force further found 

that “[t]he concern over litigation and the cost and lack of medical malpractice 

insurance have caused doctors to discontinue high-risk procedures, turn away highrisk patients, close practices, and move out of the state.” Id. at vi. Indeed, “[i]n 

Broward County alone, 400 physicians have left the state, or retired early in the 

past year.” Id. at 72. The Task Force learned that “[i]n one instance, a Fort 

Lauderdale pediatric orthopedic surgeon’s premiums went from $32,000 to 

$96,000 a year.” Id. Due to this increase, the surgeon reported a plan “to return to 

his home state, Louisiana, as that state has tort reform.” Id. Therefore, because the 

Legislature’s factual and policy findings are presumed correct (as explained in 

Echarte), and because (as in Echarte) these findings are supported by the work of 

the Governor’s Task Force, the Legislature has shown the existence of an 

“overpowering public necessity.” 
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Regarding the “no alternative method” showing necessary to satisfy the 

second prong of Kluger, the Legislature expressly found that “the overwhelming 

public necessities of making quality health care available to the citizens of this 

state, of ensuring that physicians continue to practice in Florida, and of ensuring 

that those physicians have the opportunity to purchase affordable professional 

liability insurance cannot be met unless a cap on noneconomic damages is 

imposed.” Ch. 2003-416, at § 1(14), Laws of Fla. The Legislature determined that 

“the high cost of medical malpractice claims can be substantially alleviated by 

imposing a limitation on noneconomic damages” and that “there is no alternative 

measure of accomplishing such result without imposing even greater limits upon 

the ability of persons to recover damages for medical malpractice.” Ch. 2003-416, 

at § 1(15), (16), Laws of Fla. The Legislature also found that “each of the 

provisions of this act is necessary to alleviate the crisis relating to medical 

malpractice insurance.” Ch. 2003-416, at § 1(18), Laws of Fla.

The record supports these legislative findings and determinations. For 

instance, the Governor’s Task Force stated that, “without the inclusion of a cap on 

potential awards of non-economic damages in the package, no legislative reform 

plan can be successful in achieving a goal of controlling increases in healthcare 

costs and thereby promoting improved access to healthcare.” Gov.’s Task Force 
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Rep. at 218. The Task Force noted that various other alternatives had been tried 

previously without success: 

Since 1975, Florida has implemented (or attempted to implement) 

numerous alternatives to the cap on non-economic damages and the 

other reforms recommended in this Report. None, alone or together 

with the others, has solved the crisis of medical malpractice insurance 

availability and affordability. Instead, Florida’s numerous attempts to 

solve this problem are nothing more than a failed litany of 

alternatives. 

Id. at 219. 

The Task Force explained that “one of the primary drivers of the current 

medical malpractice crisis is that a large percentage of medical malpractice losses 

(77 percent in Florida) apply to non-economic damages (i.e., pain and suffering).” 

Id. at 212. The Task Force also stated its belief that “caps on non-economic 

damages are particularly effective, because they limit the escalation of awards for 

pain and suffering, which fuels large increases for all awards and settlements.” Id. 

In fact, the Task Force thought that a cap on noneconomic damages was so 

important to alleviating the crisis and lowering premiums that it recommended a 

$250,000 per incident cap on noneconomic damages, rather than the $1 million per 

incident cap at issue in this case. See id. at xi. Based upon this record, the 

Legislature has shown that “no alternative or less onerous method exists.” Echarte, 

618 So. 2d at 197.
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Accordingly, because the Legislature has shown an overpowering public 

necessity for the cap on noneconomic damages and that there is no alternative 

method of meeting the public necessity, the second prong of Kluger (as applied in 

Echarte) is satisfied. Therefore, section 766.118(2)(b) does not violate the right of 

access to court guaranteed by the Florida Constitution.

V. Jury Trial

McCall also contends that the cap on noneconomic damages violates the 

right to a jury trial guaranteed by the Florida Constitution. However, I would 

disagree and therefore answer the Eleventh Circuit’s certified question in the 

negative.

Article I, section 22 of the Florida Constitution provides that “[t]he right of 

trial by jury shall be secure to all and remain inviolate.” Florida’s “first 

constitution of 1838, which became effective upon Florida’s admittance to the 

Union in 1845, and all subsequent constitutions have contained similar 

provisions.” In re 1978 Chevrolet Van, 493 So. 2d 433, 434 (Fla. 1986). Thus, 

section 22 of article I “guarantees the right to trial by jury in those cases in which 

the right was enjoyed at the time this state’s first constitution became effective in 

1845.” Id.

This right to a jury trial is not implicated here because survivors of a 

wrongful death did not have the right to recover noneconomic damages in 1845. 
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“It is well known that at common law the cause of action died with the person and 

that a parent had no right of action as parent for the wrongful death of a minor 

child.” Klepper v. Breslin, 83 So. 2d 587, 592 (Fla. 1955). Parents only gained 

this statutory right in 1899. Id. at 591. Other survivors were not entitled to recover 

pain and suffering damages until the Legislature enacted the Wrongful Death Act 

in 1972. See ch. 72-35, Laws of Fla.; Lifemark Hosps. of Fla., Inc. v. Afonso, 4 

So. 3d 764, 769 (Fla. 3d DCA 2009) (“A survivor’s right to recover pain and 

suffering did not become part of the Wrongful Death Act until 1972. . . .”); see also

Martin v. United Sec. Servs., Inc., 314 So. 2d 765, 767-68 (Fla. 1975) (describing 

the damages that were recoverable before and after the enactment of the Wrongful 

Death Act in 1972). Therefore, because the petitioners would not have had the 

right to recover damages from Ms. McCall’s death in 1845, the cap on 

noneconomic damages under section 766.118(2)(b) does not violate the right to a 

jury trial guaranteed by the Florida Constitution.

VI. Separation of Powers

Lastly, McCall contends that the cap on noneconomic damages violates the 

Florida Constitution’s provision ensuring separation of powers because the cap 

amounts to an impermissible legislative remittitur. I would reject this argument.

Article II, section 3 of the Florida Constitution provides that “[t]he powers 

of the state government shall be divided into legislative, executive and judicial 
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branches. No person belonging to one branch shall exercise any powers 

appertaining to either of the other branches unless expressly provided herein.” As 

this Court has explained, “[g]enerally, the Legislature is empowered to enact 

substantive law while [the judicial branch] has the authority to enact procedural 

law.” Massey v. David, 979 So. 2d 931, 936 (Fla. 2008). Therefore, “[i]f a statute 

is clearly substantive and operates in an area of legitimate legislative concern, this 

Court will not hold that it constitutes an unconstitutional encroachment on the 

judicial branch.” Id. at 937.

In Rowlands v. Signal Construction Co., 549 So. 2d 1380, 1381-82 (Fla. 

1989) (footnote omitted), this Court explained remittitur as follows:

In its classic sense, the term “remittitur” means nothing more 

than “[t]he procedural process by which a verdict of the jury is 

diminished by subtraction.” Black’s Law Dictionary 1164 (5th ed. 

1979). Indeed, when remittitur was created in 1822 by Justice Story, 

it was for the express purpose of subtracting a specific amount from 

an excessive verdict if the plaintiff wanted to avoid the court’s 

alternative new-trial order. Blunt v. Little, 3 F. Cas. 760, 762 (No. 

1578) (C.C.A. Mass. 1822). See Note, Remittitur Practice in the 

Federal Courts

In other words, “remittitur operates as a procedural device to bring the damages 

back within the outer bounds of law.” Rowlands, 549 So. 2d at 1382 n.1.

, 76 Colum. L. Rev. 299, 300 (1976) (discussing 

history of remittitur). Thus, remittitur is proper where liability clearly 

exists, but the total dollar amount of damages is merely excessive.

Here, the challenged cap does not invade the province of the judiciary 

because it does not operate as a legislative remittitur. The statutory cap establishes 
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a limit to noneconomic damages in medical malpractice cases generally. It does 

not perform the judiciary’s function of reviewing the specific support for particular 

damage awards in individual cases. Accordingly, “[b]ecause the challenged law 

does not purport to vest the Legislature with authority to make a fact intensive, 

case-by-case determination of the propriety of damage awards in individual cases, 

it does not usurp the authority of the judiciary.” M.D., 745 F. Supp. 2d at 1281. 

Moreover, in Smith, 507 So. 2d at 1092, this Court rejected the argument 

that statutory limitations on punitive damages violated Florida’s separation of 

powers provision. See also Echarte, 618 So. 2d at 191 (holding that the caps on 

noneconomic damages in medical malpractice cases where a party offers 

arbitration do not violate “the non-delegation doctrine”); Cauley, 403 So. 2d at 387 

(holding that caps on damages in tort cases against municipalities do not violate 

“the separation of powers rule”). This Court in Smith explained that “[w]hen the 

legislature enacted these provisions, it was addressing the substantive rights of 

plaintiffs and defendants in civil litigation actions with regard to recovery of 

damages.” 507 So. 2d at 1092. This Court also approved the following reasoning 

the trial court employed when rejecting the separation of powers claim: 

Sections 51 and 52 deal with the subject of punitive damages. 

Section 51 defines the conditions the plaintiff must meet to recover 

punitive damages. Section 52 limits the amount of punitive damages 

available in certain civil actions. In addition, section 52 specifies who 

shall receive any punitive damages so awarded. Section 51 is clearly 

substantive because it sets the standard for establishing a claim for 
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punitive damages. The legislature, which has the authority to abolish 

punitive damages can surely set the standard for establishing such 

claims. The Court is of the view that both sections create substantive 

rights and further that any procedural provisions of these sections are 

intimately related to the definition of those substantive rights. 

Id. at 1092 n.10.

Like the punitive damages statute at issue in Smith, the statutory cap on 

noneconomic damages at issue here addresses the substantive rights of parties with 

regard to the recovery of damages. And because section 766.118(2)(b) addresses 

substantive rights, it does not violate the separation of powers clause of the Florida 

Constitution.

VII. Conclusion

As explained above, the plurality chooses to disregard the rational basis 

standard prescribed by our precedent as well as the Legislature’s policy role under 

Florida’s constitution. Under our precedent, Florida’s per incident cap for a 

wrongful death action does not violate Florida’s constitutional guarantees of equal 

protection, access to courts, jury trial, and separation of powers. Therefore, I 

would answer the certified questions from the Eleventh Circuit in the negative. I 

respectfully dissent.

CANADY, J., concurs.

Certified Question of Law from the United States Court of Appeals for the 

Eleventh Circuit - Case No. 07-00508CV-3-MCR/EMT
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Henry T. Courtney and Sara Courtney-Baigorri of Courtney Law Firm, Coral 

Gables, Florida; Stephen S. Poche of The Law Office of Stephen S. Poche, P.A., 

Shalimar, Florida; and Robert S. Peck and Valerie M. Nannery of Center for 

Constitutional Litigation, P.C., Washington, District of Columbia,

for Appellants

Tony West, Assistant Attorney General, Pamela C. Marsh, United States Attorney, 

Daniel J. Lenerz and Thomas M. Bondy, Attorneys, Appellate Staff Civil Division, 

United States Department of Justice, Washington, District of Columbia; and 

Pamela A. Moine, United States Attorney’s Office, Pensacola, Florida,

for Appellee

Raoul G. Cantero and David P. Draigh of White & Case LLP, Miami, Florida,

for Amici Curiae Coral Gables Hospital, Delray Medical Center, Good 

Samaritan Medical Center, Hialeah Hospital, North Shore Medical Center, 

North Shore Medical Center-FMC Campus, Palm Beach Gardens Medical 

Center, Palmetto General Hospital, St. Mary’s Medical Center and West 

Boca Medical Center

Thomas E. Warner and Dean A. Morande of Carlton Fields, P.A., West Palm 

Beach, Florida, 

for Amicus Curiae HCA Health Services of Florida, Inc.

Fred J. Hiestand, Sacramento, California,

for Amicus Curiae The Civil Justice Association of California

Jennifer A. Tschetter, General Counsel, Florida Department of Health, Tallahassee, 

Florida; M. Drew Parker, General Counsel, and John Slye, Acting General 

Counsel, Florida Department of Children & Families, Tallahassee, Florida; Dean 

C. Kowalchyk, General Counsel, Florida Department of Elder Affairs, Tallahassee, 

Florida; William H. Roberts, Acting General Counsel, Florida Agency for Health 

Care Administration, Tallahassee, Florida; and Mike Palecki, General Counsel, 

Florida Department of Agency for Persons with Disabilities, Tallahassee, Florida, 
- 94 -

for Amici Curiae Surgeon General Frank Famer and Florida’s Healthcare 

Agencies

William W. Large, Tallahassee, Florida,

for Amicus Curiae Florida Justice Reform Institute

Stephen Hogge of Stephen Hogge, Esq., LLC, Tallahassee, Florida,

for Amicus Curiae Professor Paul H. Rubin

George N. Meros, Jr. and Allen Winsor of GrayRobinson PA, Tallahassee, Florida,

for Amici Curiae Florida College of Emergency Physicians and The Florida 

Orthopaedic Society

Mark Hicks, Dinah Stein, and Shannon Kain of Hicks, Porter, Ebenfeld & Stein, 

P.A., Miami, Florida,

for Amicus Curiae Florida Medical Association

Arthur J. England, Jr. and Christopher B. Carbot of Greenberg Traurig, P.A., 

Miami, Florida; Mark K. Delegal and Cynthia S. Tunnicliff of Pennington, Moore, 

Wilkinson, Bell & Dunbar, P.A., Tallahassee, Florida,

for Amici Curiae The Florida Hospital Association and The Safety Net 

Hospital Alliance of Florida

Pamela Jo Bondi, Attorney General and Diane G. DeWolf, Deputy Solicitor 

General, Office of the Attorney General, Tallahassee, Florida,

for Amicus Curiae The State of Florida

Christopher L. Nuland and Brian Hart of Law Offices of Christopher L. Nuland, 

P.A., Jacksonville, Florida, 

for Amici Curiae The Florida Chapter of the American College of 

Physicians, Florida Chapter of the American College of Surgeons, Florida 

Obstetric and Gynecologic Society, Florida Society of Plastic Surgeons, 

Florida Society of Thoracic and Cardiovascular Surgeons, Florida 
- 95 -

Neurosurgical Society, Florida Society of General Surgeons, Florida Society 

of Dermatology and Dermatologic Surgery and Florida Gastroenterologic 

Society

Michael L. Rosen of Shook Hardy & Bacon L.L.P., Tampa, Florida; Mark A. 

Behrens and Cary Silverman of Shook Hardy & Bacon, Washington, District of 

Columbia,

for Amici Curiae American Medical Association, American Academy of 

Orthopaedic Surgeons, American Congress of Obstetricians and 

Gynecologists, Chambers of Commerce of the United States of American, 

Health Coalition on Liability and Access, Physicians Insurers Association of 

America, Property Casualty Insurers Association of America, National 

Association of Mutual Insurance Companies, and NFIB Small Business 

Legal Center 

Lincoln J. Connolly of Rossman, Baumberger, Reboso, Spier & Connolly, P.A., 

Miami, Florida, 

for Amici Curiae Floridians for Patient Protections, Inc. and Florida 

Consumer Action Network, Inc.

Barbara W. Green of Barbara Green, P.A., Coral Gables, Florida; and Joel S. 

Perwin of Joel S. Perwin, P.A., Miami, Florida,

for Amici Curiae The Florida Justice Association, AARP, Florida AFL-CIO, 

and Florida Public Employee Council 79, AFSCME, AFL-CIO

John S. Mills and Andrew D. Manko of The Mills Firm, P.A., Tallahassee, Florida

for Amici Curiae Professors Neil Vidmar, Tom Baker, Ralph L.

Brill, Martha Chamallas, Stephen Daniels, Thomas A. Eaton, Theodore 

Eisenberg, Marc Galanter, Valerie P. Hans, Edward J. Kionka, Thomas 

Koenig, Herbert Kritzer, Nancy S. Marder, Joanne Martin, Frank M. 

McClellan, Deborah Jones Merritt, James T. Richardson, and Michael L. 

Rustad

Stephen N. Zack, President, American Bar Association, Chicago, Illinois; and 

Herman J. Russomanno, Robert J. Borrello, Herman J. Russomanno III, of 

Russomanno & Borrello P.A., Miami, Florida,
- 96 -

for Amicus Curiae The American Bar Association

George S. Christian, Austin, Texas,

for Amicus Curiae Texas Civil Justice League