By Andrew S. Bolin, Beytin, McLaughlin, McLaughlin, O’Hara, Bocchino & Bolin, P.A.
In 2003, the Florida Legislature undertook the arduous task of examining the impact of medical malpractice lawsuits in the State of Florida. Governor Jeb Bush appointed a Select Task Force on Healthcare Professional Liability Insurance that consisted of a distinguished group of non-partisan scholars and public servants, including the former Secretary of the Department of Health and Human Services under President Clinton. Over one regular and four special sessions, Florida’s Legislature reviewed over 1,600 sworn affidavits from medical providers, heard hundreds of hours of testimony during public hearings, and analyzed empirical evidence provided by those studying the issues.
The results of this rigorous undertaking were shocking. Four-hundred Broward County physicians cited the soaring costs of medical malpractice insurance as a reason they left the state or retired early. The task force pointed to examples of obstetrical centers closing due to increased premiums and residency graduates being forced to practice outside of Florida because they were unable to obtain or afford malpractice insurance. In 2003, 80% percent of obstetricians in Miami stated that they had been forced to practice without the protection of malpractice insurance. Ten percent of OB/GYNs in Orlando chose to leave the practice.
Upon digesting these and countless other examples, the Florida Legislature came to what appeared to be an inescapable conclusion: Florida was “in the midst of a medical malpractice insurance crisis of unprecedented magnitude,” and there was “no alternative means of accomplishing the fix without a cap on noneconomic damages.”
On those findings, the Florida Legislature acted, implementing limits of $500,000 for pain and suffering awards against practitioners and $750,000 against hospitals. Damages for economic losses like medical bills, lost wages, and the costs of future care remained unlimited. Additionally, in cases that involved “catastrophic injuries” such as death, paralysis, or other serious physical conditions, the limits on pain and suffering were raised to $1,000,000 and $1,500,000 respectively.
The anticipated effect of the limits imposed appeared to have been realized. The Florida Office of Insurance Regulations’ 2010 Annual Report noted that the state’s malpractice insurance market had stabilized and rates for medical malpractice insurance had decreased 8.2%. The OIR concluded, “It appears that the solvency of the medical malpractice insurers has been enhanced by the introduction of the  legislative reforms.”
However, in its 2014 Estate of McCall v. The United States decision, and more recently, in North Broward Hospital District v. Kalitan, the Florida Supreme Court undid the work of the Florida Legislature. The Court held no evidentiary hearings, took no public testimony, and did not examine any new evidence in finding that the caps were unconstitutional under the Equal Protection Clause. The court stated, “we conclude that … there is no evidence of a continuing medical malpractice insurance crisis,” and “no rational relationship between [the caps] and alleviating this purported crisis.” As a way to support the ruling, the court cited to certain findings from the 2003 Legislative Record that they evaluated to be more persuasive than those that supported the caps.
The court pointed to statements in reports relied upon by the legislature and judged them to be “equivocal.” This practice of reassigning weight to the record in order to invalidate legislative action poses separation-of-powers concerns. The decision is especially peculiar from a court which, in 2003, voiced its support of caps in medical malpractice cases subject to arbitration by stating, “[u]nless legislative findings are clearly erroneous in light of the legislative record, those findings are not subject to judicial reevaluation.” University of Miami v. Echarte, 618 So.2d 189 (Fla. 2003) (emphasis added).
Fourteen years later the court seemed to abandon this notion, applying new weights and measures to established facts to strike down a policy with which they did not agree. The state constitution clearly defines the powers of the separate branches. The Legislature’s unique competence to engage in fact finding, impossible in judicial decision making, requires deference by courts. At the federal level, through the laborious collection and analysis of public testimony, data, and research, The US Congress often sits in a better position to make determinations on public policy. As the US Supreme Court explained:
We owe Congress’ findings deference in part because the institution is far better equipped than the judiciary to amass and evaluate the vast amounts of data bearing upon legislative questions. … This is not the sum of the matter, however. We owe Congress’ findings an additional measure of deference out of respect for its authority to exercise the legislative power.
Turner Broad. Sys., Inc. v. Fed. Communications Comm ‘n, 520 U.S. 180, 195-96 (1997).
The Florida Supreme Court’s decision to invoke the Equal Protection Clause is likewise confounding. The “classification” of individuals in tort cases does not involve a protected class or a fundamental right under Florida or federal law. As a result, it is well settled that courts are only permitted to determine whether it is “conceivable” that the limitations on pain and suffering damages bear some “rational relationship to a legitimate state purpose.” Given findings that the quality of healthcare was being threatened in Florida because doctors were being forced from practice due to rising malpractice premiums, it can hardly be argued that there was not a “legitimate state purpose” calling Florida lawmakers to action.
In candid and strong dissents to both the McCall and Katilan decisions, Justice Polston raised concerns over his colleagues’ invasion of the legislative function: “The majority continues to disregard our precedents’ rational basis standard as well as the Legislature’s policymaking role in our constitutional system. Under a proper rational basis analysis, the cap on noneconomic damages in section 766.118, Florida Statutes, easily passes constitutional muster.”
The result in cases of true and substantiated medical malpractice can no doubt be devastating. However, imposing unjust awards on cases that are disputed in good faith is not the answer. Unchecked windfalls given to Plaintiffs only serve to drive up the already skyrocketing costs of medical care in the United States. Without respect and deference for the process of the legislative function, courts of appeal can impose their policy views on the laws of any state without engaging in the process necessary to make important policy decisions.
In Katilan, the Florida Supreme Court questioned whether the medical malpractice crisis ever existed. Tampa Bay surgeon Dr. Charles Campbell testified before the Florida House Committee on Medical Liability Insurance in 2003. He stated that in his practice alone, six doctors left the state, two retired early and one transferred to the Veterans Administration hospital due to insurance premiums becoming unaffordable. He voiced concern that Florida was losing quality doctors. He concluded the “crisis is real.” Unfortunately, without the ability to engage in the fact finding that takes place in the Legislative Branch, the Florida Supreme Court will not have the opportunity to hear Dr. Campbell’s answer to their question.