Although nursing homes are obligated to provide care and services to their residents, they are not themselves considered “health care providers” under section 766.102, Florida Statutes (2025). See NME Properties, Inc. v. McCullough, 590 So. 2d 439 (Fla. 2nd DCA 1991). This can prove consequential in legal proceedings as, among other things, claims brought under 766.102 are subject to onerous presuit requirements such as expert affidavits, notice, investigation, and informal discovery. See section 766.106.

Most harmful violations in nursing homes stem from the ordinary negligence of nonprofessional employees. Claims arising from such violations are not governed by Chapter 766, nor are claims against licensed professionals when the exercise of professional skill or judgment is not implicated.

Although a nursing home is not itself considered a health care provider under section 766.102, it may nonetheless be held vicariously liable for the acts of certain agents or employees who are. For example, the facility likely employs nurses licensed under chapter 464. Under the doctrine of respondeat superior, a facility may therefore be liable under the heightened professional standard of care when such an agent, actively involved in the incident, is rendering medical care or services.

Florida’s Wrongful Death Act bars recovery for lost parental companionship, instruction, and guidance, as well as for the mental pain and suffering of adult children over the age of 25, when the parent’s death results from medical malpractice. See section 768.21(8). This represents a unique carve-out from traditional common-law damages, applicable only in medical malpractice cases. It reflects a legislative policy choice rather than a principled public policy determination and is often referred to as Florida’s “Free Kill” law.

If a nursing home resident’s death results from ordinary negligence rather than medical negligence, the limitations of the “Free Kill” law do not apply.

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Contact us toll free at 866-785-GALE or by email (jgale@jeffgalelaw.com) for a free, confidential consultation to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

An independent contractor is a person or entity that provides services under the terms of a contract rather than as a regular employee. These individuals work on an as-needed basis, often through their own companies or franchises, and are generally paid per job or shift—not through payroll like employees. While they may provide critical care inside hospital walls, they technically work for themselves or an outside group.

The Legal Consequence

Because of this classification, hospitals are generally not liable for the negligence of independent contractor physicians. This rule has been upheld in multiple Florida cases, including:

• Newbold-Ferguson v. Amisub (North Ridge Hosp., Inc.), 85 So.3d 502 (Fla. 4th DCA 2012)
• Shands Teaching Hosp. & Clinic, Inc. v. Juliana, 863 So.2d 343, 349 (Fla. 1st DCA 2003)
• Pub. Health Trust of Dade Cty. v. Valcin, 507 So.2d 596, 601 (Fla.1987)

Why It Matters

This legal distinction can have serious consequences for patients and their families. Many independent ER doctors either do not carry malpractice insurance or have policy limits far too low to cover serious or catastrophic injuries caused by medical errors. When this happens, victims must look elsewhere for compensation—and the hospital is the most obvious alternative.

Fortunately, Florida law recognizes several exceptions to the general rule of non-liability. These exceptions can hold a hospital accountable under the right circumstances.

Key Exceptions: When Hospitals May Be Liable

1. Apparent or Actual Agency
   If the physician is presented as an agent of the hospital—such that a reasonable patient would assume they are a hospital employee—the hospital may be liable.
   See Roessler v. Novak, 858 So.2d 1158, 1161–62 (Fla. 2d DCA 2003).
2. Negligent Hiring or Retention
   Hospitals have a duty to properly vet the medical professionals they allow on staff. If they fail to exercise due care in selecting or keeping a physician with known issues, they can be held responsible.
   See Insinga v. LaBella, 543 So.2d 209, 214 (Fla.1989).
3. Non-Delegable Duty
   In some cases, a hospital cannot escape liability by contracting out certain responsibilities. This may be the case when a duty is imposed by statute, regulation, contract, or common law, especially in ER settings.
   See Pope v. Winter Park Healthcare Group, Ltd., 939 So.2d 185, 187–88 (Fla. 5th DCA 2006).

Bottom Line

Hospitals have many valid business reasons for contracting with independent physicians—cost efficiency, staffing flexibility, and reducing administrative overhead among them. But shielding themselves from liability for medical negligence should not be one of them.

When independent doctors make serious mistakes, the legal classification of “independent contractor” should not become a barrier to justice for injured patients.

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Contact us at 305-758-4900 or by email (jgale@jeffgalelaw.com & kgale@jeffgalelaw.com) for a free, confidential consultation to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

The legislative intent of the Wrongful Death Act is set forth in section 768.17:

It is the public policy of the state to shift the losses resulting when wrongful death occurs from the survivors of the decedent to the wrongdoer.

From motor vehicle crashes, construction accidents, defective products, and even medical negligence, wrongful death is caused in countless ways. The Wrongful Death Act allows the survivors of the decedent to recover from the wrongdoer once fault is established. Included within these remedies is the right to recover for mental pain and suffering. 768.21(8) is the exception to the rule.

Under 768.21(8), when a death is caused by medical negligence, mental pain and suffering damages (known as non-economic losses) are not recoverable by a parent for the loss of an adult child or by an adult child for the loss of a parent. 768.18(2) provides that a child 25 years of age or older is an adult child under the Act.

Yes, you read that right. Hence, the reason why 768.21(8) has come to be known as the “Free Kill” law.

Proponents of the law argue that its purpose is to keep medical malpractice insurance rates in check. Studies do not back up the rhetoric. In McCall v. United States, 134 So. 3d 894 (Fla. 2014), the Florida Supreme Court struck down arbitrary damage caps in medical malpractice cases based on the same proposition, debunking arguments from medical malpractice insurance lobbyists and organized medicine.

A groundswell of support has formed over the years to repeal the “Free Kill” law. In the 2024 Florida legislative session, various bipartisan bills were put forward to wipe the law off the books. Some no-strings-attached clean bills designed to abolish the law were proposed. Unfortunately, legislators with strong support from the lobbyists in the health care and insurance industry came forward to derail those efforts. SB 248, put forward by state Sen. Corey Yarborough (R), gained traction among Republicans. It conditioned abolishment of the “Free Kill” law on reinstating unconstitutional damage caps — see McCall — in all medical malpractice cases. Thankfully, the bill was defeated, but the distraction resulted in a lost opportunity to eliminate 768.21(8). Maybe next year.

Not a week goes by where our office does not receive an inquiry from a survivor frustrated by the “Free Kill” law hoping for a miracle. The most frequent inquiries come from the adult children of elderly parents. Oftentimes, we are not the first law firm to have to break the bad news. Not that it’s any consolation, but we do tell them to contact their representatives to express displeasure. They all say they will.

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Contact us at 305-758-4900 or by email (jgale@jeffgalelaw.com and kgale@jeffgalelaw.com) to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

DISCLAIMER: This information provided by Jeffrey P. Gale, P.A. is for informational purposes only and is intended to be used as a non-legal guide prior to consultation with an attorney familiar with your specific legal situation. It should not be considered legal advice or counseling. No such legal advice or counseling is either expressly or impliedly intended. This information is not a substitute for the advice or counsel of an attorney. If you require legal advice, you should seek the services of an attorney.

Presently, they rule by supermajority in the Legislature, meaning they don’t have to negotiate with members of other parties to pass legislation. With the encouragement of current governor Ron DeSantis, they have been wont to stoke the flames of culture wars by enacting draconian laws such as those banning books and hurting the LGBTQ community.

While their culture war laws get the headlines, Republicans also work in quieter ways to undermine the fabric of American society. One of their favorite tricks is to weaken the rights of individuals to seek redress within the legal system.

Last legislative session they passed bills reducing the statute of limitations in personal injury cases from four years to two years and barring all personal injury claims where the injured party is more than 50% at fault, even just 51% (768.81(6)).

This latter measure may appear reasonable on its face to the uninitiated, but it is not. In years past damage awards were apportioned by percentage of fault through a legal principle known as comparative fault. For example, if a person who was 51% at fault was awarded $1,000,000 in damages by a jury, the court would reduce that person’s share of the award to $490,000. Under the legislation passed in 2023, that same person would walk away with nothing even if another party was 49% at fault.

During this year’s legislative session, which is currently underway, Republicans are seeking to establish arbitrary damage caps in medical malpractice cases. Regardless of what a jury may decide a case is worth after receiving and deliberating the evidence, judges will be forced to reduce verdicts exceeding the cap. The proposed legislation is CS/SB 248: Medical Negligence.

It matters not to this crop of Republican legislators that a similar damage cap statute was ruled unconstitutional in the past by the Florida Supreme Court. Cynically, they are expecting the current Florida Supreme Court, made up mostly of Rick Scott and Ron DeSantis nominees, to ignore precedent and uphold the new legislation. Sadly, they have a recent example to go by to believe that a Republican majority court will reverse the decision of its predecessor members. The example is Dobbs v. Jackson Women’s Health Organization, the 2022 United States Supreme Court abortion decision which overruled 50 years of precedent.

McCall v. United States of America, 134 So. 3d 894 (Fla. 2014), was a case involving a military veteran whose death was caused by medical negligence. The jury’s award was reduced to comply with the damage caps. The Florida Supreme Court decided that the damage caps were unconstitutional.

Then, as now, 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.

As explained by the court majority, “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 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.” McCall at 906.

Problem is, the Task Force Report did not hold water. As Justice Lewis explains:

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 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.

Proponents of the legislation now on the table don’t even claim to have a study supporting their position. Despite rationale arguments against the legislation and a stream of sworn testimony from medical malpractice victims, Republicans seem determined to enact the legislation. With super-majorities in both Chambers, and the support of Governor Ron DeSantis, nothing can stop them.

Groups like the Florida Justice Association have gone to the mats fighting the legislation. Florida residents can contact their representatives in Tallahassee to express dispeasure. Follow these links for politician contact information:

• House: https://www.myfloridahouse.gov/representatives
• Senate: https://m.flsenate.gov/senators/list
• Governor: https://www.flgov.com/email-the-governor/

While not perfect, the jury system is the best apparatus for resolving disputed civil matters. Strict rules of evidence and sensible guidelines in the form of jury instructions, typically lead to the correct result. Appellate courts are there to scrutinize the process and the results. It’s a beautiful thing. The system does not need arbitrary damage caps, set by politicians sitting in Tallahassee sometimes wrongly influenced by self-interested powerful forces, to subvert the collective wisdom of “We the People.”

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Contact us at 305-758-4900 or by email (jgale@jeffgalelaw.com and kgale@jeffgalelaw.com) to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

DISCLAIMER: This information provided by Jeffrey P. Gale, P.A. is for informational purposes only and is intended to be used as a non-legal guide prior to consultation with an attorney familiar with your specific legal situation. It should not be considered legal advice or counseling. No such legal advice or counseling is either expressly or impliedly intended. This information is not a substitute for the advice or counsel of an attorney. If you require legal advice, you should seek the services of an attorney.

In negligence actions Florida courts follow the more likely than not standard of causation and require proof that the negligence probably caused the plaintiff’s injury. See Tampa Electric Co. v. Jones, 138 Fla. 746, 190 So. 26 (1939); Greene v. Flewelling, 366 So.2d 777 (Fla. 2d DCA 1978), cert. denied, 374 So.2d 99 (Fla. 1979); Bryant v. Jax Liquors, 352 So.2d 542 (Fla. 1st DCA 1977), cert. denied, 365 So.2d 710 (Fla. 1978). Prosser explored this standard of proof as follows:

On the issue of the fact of causation, as on other issues essential to his cause of action for negligence, the plaintiff, in general, has the burden of proof. He must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.

The north star of the law of causation is the landmark supreme court decision in Gooding v. University Hospital Building, Inc., 445 So. 2d 1015, 1020 (Fla. 1984). The Florida Supreme Court described the case as follows:

Emily Gooding, personal representative of Mr. Gooding’s estate, brought a wrongful death action against the hospital alleging negligence by the emergency room staff in not taking an adequate history, in failing to physically examine Mr. Gooding, and in not ordering the laboratory tests necessary to diagnose and treat Mr. Gooding’s abdominal aneurysm before he bled out and went into cardiac arrest. Mrs. Gooding’s expert witness, Dr. Charles Bailey, a cardiologist, testified that the inaction of the emergency room staff violated accepted medical standards [i.e., there was a breach]. Dr. Bailey, however, failed to testify that immediate diagnosis and surgery more likely than not would have enabled Mr. Gooding to survive.

The trial court denied the hospital’s motion for directed verdict on causation. The jury found the hospital liable and awarded damages. The hospital appealed. The First District Court of Appeal reversed on the grounds that the trial court should have directed a verdict in favor of the hospital because Mr. Gooding’s chances of survival under the best of conditions were no more than even. The plaintiff, therefore, could not meet the more likely than not test for causation. The Supreme Court affirmed the DCA on this holding.

What is a directed verdict? A directed verdict is “where no proper view of the evidence could sustain a verdict in favor of the nonmoving party.” Friedrich v. Fetterman & Assocs., P.A., 137 So.3d 362, 365 (Fla. 2013) (quoting Owens v. Publix Supermkts., Inc., 802 So.2d 315, 315 (Fla. 2001)); see also Cox v. St. Joseph’s Hosp., 71 So.3d 795, 801 (Fla. 2011) (explaining “a directed verdict is appropriate in cases where the plaintiff has failed to provide evidence that the negligent act more likely than not caused the injury”).

The Gooding Rule was applied nearly 40 years later in R.J. Reynolds v. Nelson, 47 Fla. L. Weekly D2436 (Fla. 1st DCA, Nov. 23, 2022), a tobacco case. Reynolds was sued for strict liability and ordinary negligence alleging a design defect of Reynolds’ cigarettes caused Mr. Roosevelt Gordon to develop COPD. (He passed away in 2021, shortly after the jury trial in this case. His daughter, Rosena Nelson, was appointed personal representative of his estate.) As in Gooding, the trial court was reversed on appeal for failing to grant a directed verdict. Citing “the lack of any evidence of Reynolds’ proximate cause of Mr. Gordon’s fatal disease,” the appellate court decided that a directed verdict on both the strict liability claim and the negligence claim should have been granted by the lower court.

Not all proximate cause cases go against the plaintiff. In Aragon v Issa, MD, 103 So.3d 887 (Fla. 4th DCA 2012), the trial judge was reversed for granting a motion for judgment in accordance with the motion for directed verdict against the plaintiff. The appellate court decided that since the plaintiff presented evidence that could support a jury finding that the defendant more likely than not caused the death of Aragon, it was improper for the trial judge, instead of the jury, to weigh conflicting evidence and assess the credibility of the witnesses.

In Claire’s Boutiques v Locastro, 85 So.3d 192 (Fla. 4th DCA 2012), the appeals court decided that the trial court was correct in denying defendant’s motion for directed verdict on proximate cause. The defendant urged that a directed verdict should have been granted since there was insufficient evidence that its actions “caused” the infection and resulting injuries. The court noted:

In negligence cases, like the present one, “Florida courts follow the more likely than not standard of causation and require proof that the negligence probably caused the plaintiff’s injury.” Gooding v. Univ. Hosp. Bldg., Inc., 445 So.2d 1015, 1018 (Fla.1984). If sufficient evidence is offered to meet this standard, the remaining questions of causation are to be resolved by the trier of fact. Wallace v. Dean, 3 So.3d 1035, 1047 n. 18 (Fla. 2009).

Proximate cause does not equal primary cause. In Ruiz v. Tenet Hialeah Healthsystem, Inc., 260 So.3d 977 (Fla. 2018), a medical malpractice wrongful death case, numerous medical providers were sued. Finding that one of the doctors did nothing more than place decedent in a position to be injured by the independent actions of third parties — namely, the surgeons — the trial judge granted a directed verdict in the doctor’s favor. Ruiz appealed, and the district court affirmed the trial court’s ruling, concluding that no competent, substantial evidence in the record would allow a reasonable factfinder to conclude Dr. Lorenzo was the “primary cause” of Espinosa’s death. Ruiz v. Tenet Hialeah Healthsys., 224 So.3d 828, 830 (Fla. 3d DCA 2017). The Supreme Court reversed.

Since the ruling below involved a directed verdict, the Supreme Court framed the issue as follows:

[W]hether there was competent, substantial evidence in the record which would permit a reasonable factfinder to conclude that Dr. Lorenzo, more likely than not, proximately caused Espinosa’s death.

With supporting citations, the Court explained that “the law does not require an act to be the exclusive or even the primary cause of an injury in order for that act to be considered the proximate cause of the injury: rather, it need only be a substantial cause of the injury.” As an example, it pointed to Sardell v. Malanio, 202 So.2d 746, 746-47 (Fla. 1967), a case in which the Court held that a young boy who threw a football to his friend could be held to have proximately caused the injuries sustained by a passerby with whom his friend collided as he tried to catch the ball. It rejected the district court’s reasoning in Sardell that the boy who threw the ball had no physical control over the pass catcher and had no reason to expect the collision with the plaintiff, so that boy’s act of throwing the football could not be the proximate cause of the plaintiff’s injuries. Id. at 747 (quoting Sardell v. Malanio, 189 So.2d 393, 394 (Fla. 3d DCA 1966)).

The Court concluded its opinion as follows:

Our precedent makes clear that Dr. Lorenzo cannot prevent Ruiz from establishing proximate cause merely by showing his actions or omissions were not the primary cause of Espinosa’s death. Instead, to foreclose liability on the grounds of causation, Dr. Lorenzo’s acts or omissions must not have substantially contributed to Espinosa’s death as part of a natural and continuous sequence of events which brought about that result. See McCain, 593 So.2d at 502-03; Gooding, 445 So.2d at 1018. To obtain a directed verdict on this basis, Dr. Lorenzo must show there is no competent, substantial evidence in the record which would permit a reasonable factfinder to reach such a conclusion at all. See Friedrich, 137 So.3d at 365; Cox, 71 So.3d at 801.

Interestingly, proximate cause is always applicable in workers’ compensation cases:

The established rule in workers’ compensation is that a causal relationship between an employee’s injury and the industrial accident must be shown by competent substantial evidence. § 440.02(1) & (17), Fla. Stat. (1991) (defining “accident” and “injury,” respectively); Gator Industries, Inc. v. Neus, 585 So.2d 1174 (Fla. 1st DCA 1991); Stephens Trucking Co. v. Bibbs, 569 So.2d 490 (Fla. 1st DCA 1990).

In Escambia County Board of County Commissioners v. Reeder, 648 So.2d 222 (1994), the claimant, who was hurt when he was thrown from a bulldozer that rolled over, used the rule to defeat the employer/carrier’s efforts at reducing his compensation by 25% pursuant to section 440.09(5), Florida Statutes, which reads as follows:

If injury is caused by the knowing refusal of the employee to use a safety appliance or observe a safety rule required by statute or lawfully adopted by the department, and brought prior to the accident to the employee’s knowledge, or if injury is caused by the knowing refusal of the employee to use a safety appliance provided by the employer, the compensation as provided in this chapter shall be reduced 25 percent.

The bulldozer was equipped with a safety belt but not a shoulder harness. Claimant, who had been advised to wear the safety belt, was not wearing the belt at the time of the accident. He asserted that, in order to reduce his compensation, E/C must prove a causal connection between his failure to wear the safety belt and his injuries. The judge of compensation claims (JCC) agreed and after taking evidence on the issue, ruled that although Claimant had been aware of and had knowingly disregarded Employer’s valid safety rule, the proof was insufficient to establish the requisite causal connection (between the injury and the failure to wear a safety device) that would justify Employer’s taking a statutory 25 percent reduction in Claimant’s indemnity benefits. The JCC’s ruling was affirmed on appeal.

Like a football receiver taking his eye off the ball in the heat of the moment or a tennis player forgetting the importance of sound footwork, in complex cases, especially, lawyers sometimes lose sight of the fundamentals. Fundamentals always matter. In personal injury cases, proximate cause is a fundamental.

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Contact us at 305-758-4900 or by email (jgale@jeffgalelaw.com and kgale@jeffgalelaw.com) to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

DISCLAIMER: This information provided by Jeffrey P. Gale, P.A. is for informational purposes only and is intended to be used as a non-legal guide prior to consultation with an attorney familiar with your specific legal situation. It should not be considered legal advice or counseling. No such legal advice or counseling is either expressly or impliedly intended. This information is not a substitute for the advice or counsel of an attorney. If you require legal advice, you should seek the services of an attorney.

How much must be repaid depends on policy language and who is paying the settlement or judgment in the personal injury case.

Many of the insurance policies provide that the carrier has the right to be reimbursed in full up to the amount recovered in the liability case before the insured and the insured’s attorney receive penny one. When the compensation is paid by a tortfeasor, who is the person or entity responsible for causing the harm, reimbursement is determined by the formula set forth in section 768.76(4), Florida Statutes. The statutory formula applies even where the insurance policy calls for full reimbursement to the carrier first. In Ingenix v. Ham, 35 So.3d 949 (Fla. 2nd DCA 2010), Gerald Ham’s health insurer, UnitedHealthcare, paid almost all of Ham’s medical bills relating to a medical procedure that ultimately resulted in his death. After settling with the medical providers (i.e., tortfeasors) in a medical malpractice lawsuit, Ham’s estate contended that it was only required to reimburse UnitedHealthcare a reduced amount according to the formula set out in section 768.76(4), Florida Statutes (2008). UnitedHealthcare took the position that it was entitled to full reimbursement in accordance with the language of its policy. The court held that section 768.76(4) controlled, limiting UnitedHealthcare’s reimbursement to the formula under section 768.76(4).

The court relied on the following language in 768.76(4):

“A provider of collateral sources that has a right of subrogation or reimbursement that has complied with this section shall have a right of reimbursement from a claimant to whom it has provided collateral sources if such claimant has recovered all or part of such collateral sources from a tortfeasor.” (Italics added.)

An entirely different outcome resulted in Travelers v. Boyles, 679 So. 2d 1188 (Fla. 4th DCA 1996). Travelers, a health insurer, paid medical expenses on behalf of its insured and sought full reimbursement from a settlement the insured received from his uninsured motorist carrier. The insured argued that the health insurer’s claim was barred by section 768.76(4) because the uninsured motorist carrier is not a tortfeasor under section 768.76(4). The health insurer argued that it was “not seeking reimbursement under the statute, but rather under its policy.” 679 So. 2d at 1189. The Fourth District held that the statute was not applicable in that case (because the uninsured motorist carrier was not a tortfeasor as required by the statute) but that the statute “is not the exclusive method for a health insurer to seek reimbursement pursuant to a policy provision.” According to the holding in Travelers, where the statute is not implicated, a policy provision may allow for full reimbursement.

While it is clear that the distinction in the holdings centered on the “tortfeasor” language in the statute, the Ingenix court still felt it was important enough to point out that “Travelers does not stand for the proposition that a policy provision controls when section 768.76(4) is otherwise applicable.” That said, there can be instances where both the Ingenix and Travelers holdings apply in the same case. Where the BI limits in a vehicle crash case are inadequate to cover full damages, it is not uncommon for the underinsured motorist carrier (UIM) to pay some or all of its policy limits. In that circumstance, the health and disability insurance carrier’s reimbursement rights are determined under both standards.

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Contact us at 305-758-4900 or by email to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

• Medical malpractice claims have a shorter statute of limitations than ordinary negligence claims — two years versus four years. See § 95.11(4)(b) and § 95.11(3)(a).
• Prospective medical malpractice plaintiffs must comply with complex and costly presuit requirements, as set forth in chapter 766, Florida Statutes, before filing a medical malpractice suit, which includes conducting “an investigation to ascertain that there are reasonable grounds to believe” that medical malpractice occurred. Ordinary negligence claims do not have these requirements. Id. § 766.203(2); see generally id. § 766.201-.212.
• The restrictions that chapter 766 places on medical malpractice plaintiffs’ ability to prove their cases persist even after a lawsuit is filed, such as providing specific qualifications for medical experts testifying as to the standard of care. See generally id. § 766.102.
• 
  Certain adult children (over the age of 25) whose parents die as a result of medical negligence are barred from recovering lost parental companionship, instruction, and guidance and for mental pain and suffering. See § 768.21(8). This restriction does not apply if the death results from ordinary negligence. See § 768.21(3).
• 
  Certain parents of adult children who die as a result of medical negligence are barred from recovering for mental pain and suffering. See § 768.21(8). This restriction does not apply if the death results from ordinary negligence. See § 768.21(4).

“Because of the statutory restrictions and requirements that apply only to medical malpractice claims, any ‘doubt’ as to whether a claim is for ordinary negligence or medical malpractice should be ‘generally resolved in favor of the claimant.”‘ J.B. v. Sacred Heart Hosp. of Pensacola, 635 So.2d 945, 947 (Fla. 1994).

The Florida Legislature has defined a medical negligence claim as one “arising out of the rendering of, or the failure to render, medical care or services.” § 766.106(1)(a), Fla. Stat. (2020). If a negligence claim meets the definition, the plaintiff is subjected to the “onerous presuit requirements and restrictions of the medical malpractice statutory scheme.” The National Deaf Academy, LLC v. Townes, 242 So.3d 303, 303 (Fla. 2018).

In Townes, a case handled by my brother-in-law Sean Domnick, the plaintiff, a resident of Defendant National Deaf Academy, a facility that offered schooling and residential medical treatment for deaf, hard of hearing, and autistic individuals suffering from psychiatric and behavioral disorders, was injured while being restrained by staff using a Therapeutic Aggression Control Techniques (“TACT”) protective hold. The Florida Supreme Court sided with the plaintiff in deciding that her allegations sounded in ordinary negligence rather than medical negligence.

Recognizing the importance of the issue, the Court explained the legal underpinnings of its ruling. It noted the twofold inquiry set forth in Silva v. Southwest Florida Blood Bank, Inc., 601 So.2d 1184 (Fla. 1992) to determine if a claim sounds in medical malpractice: “(1) whether the action arose out of `medical . . . diagnosis, treatment, or care,’ and (2) whether such diagnosis, treatment, or care was rendered by a `provider of health care.'” Id. at 1186 (alteration in original). And it agreed with two lower court rulings which said the same thing in different words: For a claim to sound in medical malpractice, the wrongful act from which the injury arises

• “must be directly related to the improper application of medical services and the use of professional judgment or skill,” Joseph v. Univ. Behavioral LLC, 71 So.3d 913, 917 (Fla. 5th DCA 2011).
• “[t]he injury must be a direct result of receiving medical care or treatment by the healthcare provider.” Quintanilla v. Coral Gables Hosp., Inc., 941 So.2d 468, 469 (Fla. 3d DCA 2006).

The Court made the further point that merely because “a wrongful act occurs in a medical setting does not necessarily mean that it involves medical malpractice.” Id. at 917; see Holmes Reg’l Med. Ctr., Inc. v. Dumigan, 151 So.3d 1282, 1286 (Fla. 5th DCA 2014) (“It is axiomatic that the mere fact that a wrongful act occurs in a medical setting does not automatically transform the contested action into one that sounds in medical malpractice. . . .”); Lynn v. Mount Sinai Med. Ctr., Inc., 692 So.2d 1002, 1003 (Fla. 3d DCA 1997) (“Merely because a wrongful act occurs in a medical setting does not necessarily mean that it involves medical malpractice.”). As examples, it mentioned medical setting injuries that were not medical malpractice:

• Quintanilla v. Coral Gables Hosp., Inc., 941 So.2d 468, 469 (Fla. 3d DCA 2006). Scalding tea accidentally spilled by a nurse on a patient who was admitted for respiratory issues was not medical negligence even though hot tea was a treatment modality.
• Tenet St. Mary’s Inc. v. Serratore, 869 So.2d 729, 730 (Fla. 4th DCA 2004). A foot injury sustained by a dialysis patient from being accidentally kicked by a hospital employee, even though the employee was trying to adjust the patient’s footrest, was a case of ordinary negligence.

Not all examples are as simple as the two cited above. Townes, itself, involved an intricate set of facts containing a blend of medical and non-medical related issues. In fact, the trial court dismissed the case, agreeing with the defendant’s argument that the allegations sounded in medical negligence. On appeal, defendant argued that the Court should follow the holding in Shands Teaching Hospital & Clinics, Inc. v. Estate of Lawson, 175 So.3d 327 (Fla. 1st DCA 2015), another case with a mixed set of medical and non-medical factors.

Shands involved a patient who was able to escape from the locked unit at a psychiatric hospital. She was eventually struck by a car and killed. Her estate sued. The First DCA held that the estate’s claim sounded in medical malpractice. While the Shands case did not reach the Supreme Court, the Court did have this to say about the case once it had a shot in the Townes decision:

We disagree with the First District’s analysis in Shands. While it is true that the hospital failed to confine the patient to her locked unit, the estate’s claim arose out of the hospital employee leaving her badge and keys unattended where the patient could access them, not out of any act directly related to medical care or services that required the use of professional judgment or skill. Thus, contrary to the First District’s conclusion, medical expert testimony on the professional standard of care would not be necessary for the estate to prove its negligence claim. Id. at 332-33.

Construing what constitutes medical malpractice as broadly as the First District did in Shands would render essentially any claim arising out of a negligent act by a health care provider subject to the onerous presuit requirements in chapter 766 and the shortened statute of limitations for medical malpractice claims.

Between ordinary negligence and medical malpractice, practitioners must take great care in choosing which cause of action to pursue. In close calls and where possible — i.e., the statute of limitation may have run on the med mal case — it may be advisable to pursue both. While the medical malpractice aspect will add time and expense to the equation, it may also add a certain level of peace of mind. Choose wisely.

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Contact us at 305-758-4900 or by email to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

Section 768.21, entitled “Damages,” describes who is entitled to what in wrongful death cases. Subparts (3) and (4) provide as follows:

(3) Minor children of the decedent, and all children of the decedent if there is no surviving spouse, may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury. For the purposes of this subsection, if both spouses die within 30 days of one another as a result of the same wrongful act or series of acts arising out of the same incident, each spouse is considered to have been predeceased by the other.
(4) Each parent of a deceased minor child may also recover for mental pain and suffering from the date of injury. Each parent of an adult child may also recover for mental pain and suffering if there are no other survivors.

Where the wrongful death resulted from medical malpractice, subpart (8) bars the recovery of “lost parental companionship, instruction, and guidance and for mental pain and suffering” of “all children of the decedent if there is no surviving spouse.” as otherwise allowed in subpart (3), and “mental pain and suffering” for “[e]ach parent of an adult child … if there are not other survivors” as otherwise allowed in subpart (4). Subpart (8) provides as follows:

(8) The damages specified in subsection (3) shall not be recoverable by adult children and the damages specified in subsection (4) shall not be recoverable by parents of an adult child with respect to claims for medical negligence as defined by s. 766.106(1).

(For purposes of this statute, an adult child is a child over the age of 25)

This simple paragraph has caused heartache upon heartache to a countless number of parents and children whose loved ones died from medical malpractice. Every week our office receives phone calls from disbelieving adult children and parents seeking a magical solution that doesn’t exist. Often, we are their fourth and fifth call. Sadly, the best we can offer are condolences and the suggestion they complain to Florida’s Governor and its state legislators. Not very comforting words.

Section 400.023, Florida Statutes creates an “exclusive cause of action for negligence or a violation” of the rights of residents of nursing homes and related health care facilities. See, 440.023(1). Interestingly, while residents may be harmed or caused to die by a failure to receive appropriate health care, section 440.023(1)(e) provides that “Chapter 766 does not apply to a cause of action brought under ss. 400.023-400.0238.” Chapter 766 contains Florida’s medical malpractice statutes. Hence, claims for wrongful death brought under ss. 400.023-400.0238 are not subject to the damage limitations of 768.21(8).

While the causes of action, in other words, the standards necessary for recovery, under each statutory scheme are different, it is sometimes difficult for the parties and the judiciary to tell them apart. See Weinstock v. Groth, 629 So.2d 835 (Fla.1993); NME Properties, Inc. v. McCullough, 590 So.2d 439 (Fla. 2d DCA 1991); Liles v. P.I.A. Medfield, Inc., 681 So.2d 711 (Fla. 2d DCA 1995). A party failing to properly do so may suffer serious negative consequences, up to having the case dismissed with prejudice. Moreover, as explained above, if it turns out that the facts make the case one of medical negligence rather than nursing home negligence, the surviving adult children and parents of a deceased victim may be denied a remedy. Accordingly, it is exceedingly important to understand the differences between the two causes of action.

In Integrated Health Care Services, Inc. v. Lang-Redway, 840 So.2d 974 (Fla. 2002), the Florida Supreme Court was presented with the following question certified by the district court of appeal as being one of great public importance:

If a plaintiff files a lawsuit seeking to enforce only those rights enumerated in section 400.022, must the plaintiff comply with the presuit conditions in section 766.106?

The district court, in Integrated Health Care Services, Inc. v. Lang-Redway, 783 So. 2d 1108 (Fla. 2d DCA 2001), decided that because the plaintiff had chosen to allege a statutory claim under section 400.022 and not also allege a common law claim for medical negligence, she was not required to comply with the presuit requirements of section 766.106, Florida Statutes (1997). In doing so, the Second District Court of Appeal observed that

Although there may be some overlap between the statutory right to “receive adequate and appropriate health care” and the common law claim for medical negligence, we conclude that the presuit requirements of chapter 766 must be narrowly construed to apply only to common law medical negligence claims and not to the separate statutory rights created by chapter 400. Compare § 400.022(1)(l), Fla. Stat. (1997), with § 766.102(1), Fla. Stat. (1997).

Citing to the cases noted above, the court made the following comments:

In cases involving vicarious liability of nursing homes for the actions of their employees, determining whether the presuit requirements of chapter 766 are invoked has been a difficult task for the judiciary. See Weinstock v. Groth, 629 So.2d 835 (Fla.1993); NME Properties, Inc. v. McCullough, 590 So.2d 439 (Fla. 2d DCA 1991); Liles v. P.I.A. Medfield, Inc., 681 So.2d 711 (Fla. 2d DCA 1995). In general, a plaintiff must comply with these conditions if it seeks to make a defendant vicariously liable for the actions of a health care provider under the medical negligence standard of care set forth in section 766.102(1). See Weinstock, 629 So.2d at 838; Lake Shore Hosp., Inc. v. Clarke, 768 So.2d 1251 (Fla. 1st DCA 2000). This complaint does not seek vicarious liability for the actions of a health care provider under a medical negligence standard.

The Florida Supreme Court agreed with the lower court’s holding. Recognizing the importance and complexity of the issue, the court analyzed the elements of each cause of action. It made the following observations:

• “[E]ach count of the plaintiff’s complaint alleged that the nursing home failed to provide for the degree of care mandated by section 400.022. Since this claim relies upon the right to receive adequate health care and services from the nursing home, the plaintiff was required to (and in fact did) follow the presuit requirements within chapter 400.”
• “[I]n order to determine whether the presuit requirements of chapter 766 apply, we look to whether the plaintiff must rely upon the medical negligence standard of care as set forth in section 766.102(1). In this case, the plaintiff is filing an action against the nursing home based solely upon the violation of the statutory obligations imposed by section 400.022. As section 400.022(1)(l) provides its own standard of care,^[8] the medical negligence standard of care and the corresponding presuit requirements of chapter 766 are inapplicable.”
• “[S]ection 400.023 clearly demonstrates that the Legislature intended a nursing home to be liable for the ‘”failure to provide a resident with appropriate observation, assessment, nursing diagnosis, planning, intervention, and evaluation of care by nursing staff.”‘ § 400.023(3), Fla. Stat. (1997). Accordingly, we do not find that the plaintiff has pled a medical malpractice cause of action against a health care provider which would require her to abide by the presuit requirements of chapter 766.”

While the Integrated case dealt with a pre-suit notice issue, its relevance to the subject of this blog involves the insightful discussion regarding the separate causes of action. As the Second DCA and the Florida Supreme Court noted, making the proper distinction can sometimes be difficult. With the right facts, survivors otherwise barred by chapter 766 can get their day in court for the wrongful death of a loved one.

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Contact us at 305-758-4900 or by email to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

“It is the public policy of the state to shift the losses resulting when wrongful death occurs from the survivors of the decedent to the wrongdoer. Sections 768.16-768.26 are remedial and shall be liberally construed.”

In all fairness, section 768.17 should read as follows:

“With the exception of cases involving medical negligence, it is the public policy of the state to shift the losses resulting when wrongful death occurs from the survivors of the decedent to the wrongdoer. Sections 768.16-768.26 are remedial and shall be liberally construed.” (Language in bold added to make the point of this blog.)

Consider these scenarios: Scenario No. 1:

Sixty five year old Tom was killed when his vehicle was struck from behind by a Coca Cola truck. Single, he is survived by two adult children over the age of 25. Tom’s children filed suit against Coca Cola and settled the case for a substantial sum of money. Most of the money was paid as compensation for their immense pain and suffering.

Sixty five year old Dick died on the operating table due to a surgeon’s negligence. Single, he is survived by two adult children over the age of 25. Because of an exception contained in Florida’s Wrongful Death Act, Dick’s children did not have a right to be compensated for their immense pain and suffering. The negligent surgeon was able to walk away scot free.

Scenario No. 2

Thirty year old Tom was killed when his vehicle was struck from behind by a Coca Cola truck. He was single and childless. He is survived by his parents. Tom’s parents filed suit against Coca Cola and settled the case for a substantial sum of money. Most of the money was paid as compensation for their immense pain and suffering.

Thirty year old Dick died on the operating table due to a surgeon’s negligence. He was single and childless. He is survived by his parents. Because of an exception contained in Florida’s Wrongful Death Act, Dick’s parents did not have a right to be compensated for their immense pain and suffering. The negligent surgeon was able to walk away scot free.

Section 768.21 of the Wrongful Death Act outlines who may be awarded damages for the wrongful death of a family member. 768.21(3) and (4) authorized the recoveries made by Tom’s survivors. Because Dick’s death resulted from medical malpractice, subsection (8) prevented his survivors from being compensated for their pain and suffering.

(3) Minor children of the decedent, and all children of the decedent if there is no surviving spouse, may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury. For the purposes of this subsection, if both spouses die within 30 days of one another as a result of the same wrongful act or series of acts arising out of the same incident, each spouse is considered to have been predeceased by the other.

(4) Each parent of a deceased minor child may also recover for mental pain and suffering from the date of injury. Each parent of an adult child may also recover for mental pain and suffering if there are no other survivors.
(8) The damages specified in subsection (3) shall not be recoverable by adult children and the damages specified in subsection (4) shall not be recoverable by parents of an adult child with respect to claims for medical negligence as defined by s. 766.106(1).

The Equal Protection Clause contained in Florida’s Constitution, Article I, section 2, provides as follows:

Basic rights.—All natural persons, female and male alike, are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty, to pursue happiness, to be rewarded for industry, and to acquire, possess and protect property. No person shall be deprived of any right because of race, religion, national origin, or physical disability.

In Mizrahi v North Miami Medical Center, LTD., 761 So. 2d 1040 (2000), a case involving the surviving adult children of Morris Mizrahi, who died allegedly as a result of medical malpractice, section 768.21(8) faced constitutional challenge. The Florida Supreme Court was asked to answer this certified question:

DOES SECTION 768.21(8), FLORIDA STATUTES (1995), WHICH IS PART OF FLORIDA’S WRONGFUL DEATH ACT, VIOLATE THE EQUAL PROTECTION CLAUSE OF THE FLORIDA AND FEDERAL CONSTITUTIONS, IN THAT IT PRECLUDES RECOVERY OF NONPECUNIARY DAMAGES BY A DECEDENT’S ADULT CHILDREN WHERE THE CAUSE OF DEATH WAS MEDICAL MALPRACTICE WHILE ALLOWING SUCH CHILDREN TO RECOVER WHERE THE DEATH WAS CAUSED BY OTHER FORMS OF NEGLIGENCE?

The Court answered the question in the negative.

To survive constitutional muster, the statute had to satisfy the rational basis test. To satisfy the rational basis test, a statute must bear a rational and reasonable relationship to a legitimate state objective, and it cannot be arbitrarily or capriciously imposed. Dep’t of Corr. v. Fla. Nurses Ass’n, 508 So.2d 317, 319 (Fla. 1987).

The Court adopted the findings of the court below, the Third District Court of Appeal, which held as follows:

“the statute’s disparate treatment of medical malpractice wrongful deaths does bear a rational relationship to the legitimate state interest of ensuring the accessibility of medical care to Florida residents by curtailing the skyrocketing medical malpractice insurance premiums in Florida.”

This is the same reasoning relied on by the Florida Legislature to justify enactment of Fla. Stat. Sec. 766.118, which imposes a statutory cap on noneconomic damages in medical malpractice cases.

In Estate of McCall v. US, 134 So.3d 894 (Fla. 2014), the constitutionality of the cap came under scrutiny. The Court framed the question before it in much the same form it had framed the question in Mizrahi. Its answer was decidedly different.

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 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.

The majority attempted to distinguish its holding in Mizrahi. In my view, the distinction does not hold water. If anything, the McCall analysis is precedent to find 768.21(8) unconstitutional.

In McCall, the legal parameters were stated as follows:

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.

The statutory cap was enacted in 2003. The Florida Legislature attempted to justify passage 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. 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 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.

The McCall majority studied the findings of the Legislature and the Task Force. In a striking rebuke, the majority found

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 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.

Even the Task Force whose report was relied upon by the Florida Legislature employed extremely equivocal language and speculation when 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.

From these findings, the majority concluded:

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 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.

It went further:

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).

Finally, it concluded that changing circumstances may render a law unconstitutional. “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, 44 S.Ct. 405, 68 L.Ed. 841 (1924). See also Ferdon ex rel. Petrucelli v. Wisconsin Patients Comp. Fund, 284 Wis.2d 573, 701 N.W.2d 440, 468 (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)).”

Relying on current data, the majority concluded “that no rational basis exists to justify continued application of the noneconomic damages cap of section 766.118.” The data revealed

• There were a higher number of active physicians for every 100,000 people in Florida than in twenty-eight other states.
• 59.4 percent of active physicians who completed medical school in Florida are practicing in Florida. Only three other states retained a higher percentage of medical students.
• Medical malpractice filings in Florida have decreased significantly.
• The leading companies selling medical malpractice insurance in Florida are far from struggling financially.

Our firm receives regular inquiries from individuals blocked by 768.21(8) from being compensated for the tragic loss of a loved one. Usually, their cases have been rejected by other lawyers and they are hoping we know something the others don’t. They cannot believe their ears when hearing that a negligent doctor can walk away without having to pay for a grievous error, so they keep calling around. Sadly, the news is always the same. This is why 768.21(8) is known as the “Free Kill” statute.

The findings in McCall should be enough to strike down 768.21(8). Like the McCall Court, the Mizrahi Court analyzed the constitutionality of its statute under the rational basis test. Interestingly, however, unlike the McCall Court, the Mizrahi Court accepted on face-value the “evidence” put forward by the Legislature to support enactment of the statute. In contrast, the McCall Court performed its own exhaustive analysis of the facts and data presented by the Legislature and considered new evidence. From its examination, the Court concluded that the statute’s disparate treatment did not meet the rational basis standard.

For starters, Mizrahi should be suspect for relying on unverified evidence. However, even if the data was accurate when the statute was enacted more than 25 years ago, circumstances are likely different today. We know they were different when McCall was rendered in 2014. As the McCall Court noted, “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.”

Perhaps a Task Force should be formed to study the issue? It seems the least that that can be done for parents and adult children who have lost loved ones through medical malpractice. Only then can the stated legislative intent of the Wrongful Death Act be fully realized.

It would be nice to believe that, with the right case — and there are many — 768.21(8) will be struck down as unconstitutional. It should be. Unfortunately, the current Florida Supreme Court, seated with a majority of Gov. Ron DeSantis appointees, is likely to have a different point of view.

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Contact us at 305-758-4900 or by email to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.