The Million Dollar Question: (Jan-Mar Litigation Quarterly 2010)

Non-economic Damages in Medical Malpractice Cases

If it is true that confusion lies at the doormat of creativity, interpretation of Florida Statute 766.118 provides a creative opportunity for attorneys everywhere.  In August of 2003, the Florida Legislature enacted sweeping medical malpractice reform.  Most importantly, a maximum limit on the amount of noneconomic damages recoverable in any medical malpractice action was codified within Florida Statute §766.118.  Section 766.118 sets forth a cap on noneconomic damages between $500,000 and $1,500,000 depending on various circumstances discussed herein.  These limitations were enacted because the legislature perceived “a medical malpractice crisis of unprecedented magnitude” that “threatens the quality and availability of health care for all Florida citizens.” Laws of Fla. Ch. 2003-416.  At the heart of this crisis, according to the legislature, was the escalating cost of medical malpractice insurance in Florida, which is among the states with the highest premiums in the country.  Id. The legislature found that this high cost of insurance, in turn, forced many physicians to practice medicine without professional liability insurance and forced many to leave Florida, cease performing high-risk procedures, or retire early from the practice of medicine.  Id.

Florida Statute §766.118 has been criticized as poorly written with ambiguous application and interpretation.  To date, Florida courts have yet to resolve many questions associated with interpretation of this statute.  As such, this article addresses some of the unresolved and very pertinent interpretation issues.

Florida Statute §766.118 establishes a cap of $500,000 for “practitioners” and a $750,000 cap for “non-practitioners” in cases involving medical negligence.  Fla. Stat.  §766.118 (2003).  At the forefront of this provision is the broad definition of “practitioner.”  Pursuant to the statute, “practitioner” means any person licensed under chapter 458, chapter 459, chapter 460, chapter 461, chapter 462, chapter 463, chapter 466, chapter 467, or chapter 486 or certified under s. 464.012.  Id. “Practitioner” also means any association, corporation, firm, partnership, or other business entity under which such practitioner practices or any employee of such practitioner or entity acting in the scope of his or her employment.¹ Id.

The explicit inclusion of associations, corporations, firms, partnerships or other business entities should be argued to include all hospitals, surgery centers, physician groups, clinics and the alike, which are usually thought to be “non-practitioners.”  For example, private hospitals or walk-in-clinics appear to be encompassed within the statute’s broad language when the physician employee is also named in the suit.  Further muddling the interpretation of who constitutes a “practitioner” is the lack of any definition of “non-practitioner” within the statute.

It appears only one case has argued this position to the court of appeals, yet the outcome is not yet known.  In Ortiz v. United States of America, 2008 WL 460528 (N.D. Fla. Jan. 31, 2008), the defendant argued a hospital should be considered a “practitioner” under the clear language of §766.118.  The court withheld ruling on the issue until the jury returns a verdict.  Despite not yet having precedent on this issue, the arguments in Ortiz revolve around well established rules regarding statutory construction.  In Florida, statutory language should be read from the perspective of the average reader, and the court need not be concerned with odd scenarios that might test the limits of a statute or leave question about exactly what a certain term might cover.  State v. Darynani, 774 So. 2d 855 (Fla. 4th DCA 2000).  Plaintiffs will likely argue an average reader interpreting §766.118 would clearly consider a medical clinic or facility or private hospital a “non-practitioner” based upon commonly held knowledge that a clinic is not licensed to provide actual care, people provide care.  Our courts of appeal should give effect to the clear words the legislature has chosen to use in this statute.  Holmes v. Blazer Financial Services, Inc., 369 So. 2d 993 (Fla. 1999).  The broad, inclusive language allowing for business entities to be considered practitioners in certain instances is quite compelling even if the legislature chose not to define “non-practitioner.”

Section 766.118 also fails to answer a million dollar question significant to all practitioners:  Does the noneconomic damages cap increase per defendant when the negligence resulted in a permanent vegetative state or death?  Subsection (a) of the statute states:

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.

Fla. Stat. §766.118.  Subsection (b) states:

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 $1,000,000.

Id.

Subsection (a) explicitly includes actions for wrongful death.  Id. Furthermore the last sentence of subsection (a) unequivocally states no practitioner shall be liable for more than $500,000 in noneconomic damages.  Id. Thus, it is arguable in an action involving a single practitioner resulting in death, the practitioner receives the $500,000 cap.  Remaining is the question of whether subsection (b) increases the cap to $1,000,000 in certain circumstances.  Subsection (b) sets a limit on the total noneconomic damages recoverable from all practitioners in cases involving permanent vegetative state or death.  Id. Thus, each practitioner is still entitled to the limit of $500,000 in cases involving death as explicitly stated within subsection (a).  Subsection (b) should merely propose a scenario limiting the amount of recovery to $1,000,000 total when there are multiple practitioner defendants.  For example, if three practitioners are found liable, each may be assessed up to $500,000 but the total for all three cannot exceed $1,000,000.

Further complicating matters, subsection (c) provides a limit on the total noneconomic damages recoverable by all claimants.  Id. Specifically, all practitioner defendants under this subsection shall not exceed $1,000,000 in the aggregate.  Id. For example, if a husband and a wife sue for wrongful death of their child, they may not each receive the $1,000,000 total from all practitioners in subsection (b), rather $1,000,000 total.  In sum, subsection (a) applies a practitioner cap on noneconomic damages (including for wrongful death); subsection (b) applies a cap for the total sum of $1,000,000 for all of the practitioners in cases involving death or permanent vegetative state; and subsection (c) applies a cap for the total sum for all claimants.

It is CSK’s goal to encompass as many clients within the definition of “practitioner” and thereby limit liability to $500,000 for each practitioner even in cases involving death.  We propose filing early pre-trial motions to force trial courts to interpret the language.  Should the courts rule in our favor, the value of the plaintiff claims will be dramatically reduced.  Should the courts not rule in our favor, this battle will have to be waged in the appellate courts.  Either way, the million dollar question remains unanswered and, at least for now, the legislature’s confusion will have to continue to lie at the doormat of our creativity.

^{1          “Practitioner” also includes any person or entity for whom a practitioner is vicariously liable and any person or entity whose liability is based solely on such person being vicariously liable for the actions of the practitioner.}