Uncapping Pain and Suffering

Three cases converged to kill Florida’s limits on med-mal awards

Published in 2018 Florida Super Lawyers magazine

By Carlos Harrison on June 18, 2018


It was born controversial and it died controversial, and in between it was, well, controversial.

Fourteen years after Florida’s Legislature passed a law limiting pain-and-suffering damages in medical malpractice suits, what was left of that law was brought down by three overlapping appellate decisions. Bringing the final battle to the state Supreme Court in 2017 took a convergence of circumstances—and a lot of tenacity.


Three years earlier, in Estate of McCall v. United States—the case of a woman who died as a result of severe blood loss following childbirth at an Air Force medical center—the court found that the cap on noneconomic damages in wrongful death cases was unconstitutional. However, it did not address those damages in personal injury cases—involving nonfatal medical malpractice.

Crane Johnstone, the personal injury trial lawyer in the case that finally killed that part of the law, says it came down to a question of fairness.

“If noneconomic damages caps [didn’t] apply in med-mal wrongful death cases after McCall, then why should they remain constitutional in med-mal cases where the patient did not die—but was left with devastating, life-ruining injuries as the result of negligent treatment?” asks Johnstone, of Johnstone Law in Fort Lauderdale.

Then, two cases involving medical malpractice in personal injury cases started winding their way through trial and appellate courts. 

“The court had already put one foot in the water in the McCall case, and we believed that we were on equal or even stronger footing in the personal injury setting,” says Stuart Ratzan, of Ratzan Law Group in Miami.

His case, Port Charlotte HMA, LLC v. Suarez, involved a woman whose daughter was born prematurely with severe brain damage. The mother had shown signs of preeclampsia and ultimately had an emergency cesarean section. She was not given steroids to protect the baby’s brain. A jury awarded $23 million in compensatory damages; the hospital filed to limit the award in accordance with the statutory cap. 

“It was a case of great significance,” Ratzan says. “It was a completely innocent child, and the baby was being deprived of rights as compared to others.”

While his case was still at the trial court level on Florida’s west coast, Johnstone’s moved up to the appellate level in the east. 

Kalitan v. North Broward Hospital District involved Susan Kalitan, a dental technician who went in for carpal tunnel surgery. It was to be a 30-minute outpatient procedure, Johnstone says. But a tube inserted in preparation for anesthesia perforated Kalitan’s esophagus. She was sent home without the hole being discovered. 

A neighbor found her in her apartment the next morning, unresponsive. She went through more surgery, followed by an induced coma, then months of additional surgeries and tube-feedings.

“She couldn’t eat. She couldn’t speak. She couldn’t walk. She had to learn to walk again,” Johnstone says. 

The trial jury awarded her $4.7 million, including noneconomic damages of $2 million for past pain and suffering and $2 million for future pain and suffering. But the judge capped the awards, in accordance with the law.

Kalitan was appealed.

“This is a woman whose life has been completely ruined. She was declared completely and totally disabled,” says Johnstone, who helped appellate attorney Philip Burlington, with Burlington & Rockenbach in West Palm Beach, write the appeal for the 4th District Court of Appeal.

Relying on the Supreme Court’s opinion on wrongful-death cases in McCall, the 4th DCA declared the limits on personal injury awards unconstitutional.

Back in 2003, when Gov. Jeb Bush signed the caps into effect, legislators said rising malpractice insurance costs had caused a health care “crisis” and that physicians were 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.” 

The answer, the lawmakers concluded, was to limit noneconomic damages “arising from medical negligence of practitioners” to a maximum of $1 million.  

But in McCall, the court declared the “crisis” nonexistent. The 4th, relying on McCall, agreed. 

The morning that the 4th DCA issued that opinion, Ratzan was on his way to a hearing in the 2nd DCA on a motion in his Suarez case. “The trial court judge had to follow the only district court precedent that was out there—that had been set that morning,” he says. 

So the 2nd DCA ruled on Ratzan’s case, calling the caps unconstitutional, before the state Supreme Court addressed Kalitan.

In their 4-3 ruling on that case, the high court justices noted the 2nd DCA’s decision, agreeing that the limits on noneconomic damages violated the state’s equal-protection rights.

The majority explained that a less severely injured plaintiff awarded damages within the cap would be entitled to recover the full award, while a catastrophically injured plaintiff facing a lifetime of pain and disability—who was awarded damages exceeding the cap—would be entitled to only a portion of what a jury deemed fair. That amounted to discrimination, the court concluded, adding there was no evidence of a medical malpractice insurance crisis. The three dissenting Supreme Court justices labeled the majority opinion an overreach of judicial power. 

Burlington argued the Kalitan case before both the district court and the state Supreme Court. “I think what made my job a little easier was that McCall had pretty much said the emperor has no clothes,” he says. “There was no med-mal crisis.” 

Scott Schlesinger heads Schlesinger Law Offices in Fort Lauderdale, the firm that filed the case on Kalitan’s behalf. “Overall, it restored the ability for an injured patient to be compensated fully and fairly for injuries,” he says.

The narrowly split decision, however, provides little certainty that caps won’t someday return.

Observes Burlington: “It certainly is not etched in stone.”



Birth and Death of Med-Mal Caps in Florida

2003—Legislature limits pain-and-suffering damages in medical malpractice suits to max of $1 million.

2014—In Estate of McCall v. United States, state Supreme Court rules those limits unconstitutional in wrongful death cases, but does not address them in personal injury cases not involving death.

2017—In Kalitan v. North Broward Hospital District, state Supreme Court rules the limits unconstitutional in nonfatal personal injury cases as well; cites 2nd DCA ruling in Port Charlotte HMA, LLC v. Suarez.

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