Jeffrey P. Gale, P.A. /// Legal Remedy Relief for Medicaid Patients

In 2011, the Republican-controlled Florida Legislature targeted some of the state’s most vulnerable citizens by enacting legislation that curtailed the legal rights of Medicaid recipients. Specifically, it imposed a cap on the amount of noneconomic damages—such as pain and suffering—that Medicaid recipients may recover in medical negligence cases. The pertinent provisions of that legislation, codified in Section 766.118(6), Florida Statutes, read as follows:

“with respect to a cause of action for personal injury or wrongful death arising from medical negligence of a practitioner committed in the course of providing medical services and medical care to a Medicaid recipient, regardless of the number of such practitioner defendants providing the services and care, noneconomic damages may not exceed $300,000 per claimant, unless the claimant pleads and proves, by clear and convincing evidence, that the practitioner acted in a wrongful manner. A practitioner providing medical services and medical care to a Medicaid recipient is not liable for more than $200,000 in noneconomic damages, regardless of the number of claimants, unless the claimant pleads and proves, by clear and convincing evidence, that the practitioner acted in a wrongful manner.”

The exception for conduct committed in a “wrongful manner” is not an exception applicable to ordinary medical malpractice and, therefore, does not alter the premise of this blog. Rather, the phrase “wrongful manner,” as defined in Section 766.118(6)(c), Florida Statutes, means conduct undertaken “in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.” That standard describes conduct fundamentally different from ordinary medical negligence.

Beginning in 2003, the Florida Legislature enacted a body of legislation imposing arbitrary caps on noneconomic damages—including pain and suffering—in medical negligence cases. In doing so, the Legislature effectively replaced the judgment of juries with its own. No matter what a jury concluded after hearing the evidence and assessing the harm suffered by a malpractice victim, the Legislature mandated that those findings be overridden by a statutory ceiling. The result was a system in which the Legislature’s predetermined limits—not the jury’s considered evaluation—controlled the measure of a victim’s noneconomic loss. The Legislature’s chosen vehicle for this intrusion into the jury’s constitutional role is Section 766.118, Florida Statutes. Through this statute, the Legislature attempted to codify its own predetermined limits on noneconomic damages, displacing the jury’s fact‑finding function with a rigid, one‑size‑fits‑all cap.

The legislation is sweeping in scope, stripping every victim of medical negligence in Florida—including survivors in wrongful death actions—of the full measure of their rights.

Thankfully, a series of constitutional challenges to the legislation have met with meaningful success, with courts recognizing the statute’s overreach and its incompatibility with fundamental rights.

In North Broward Hospital District v. Kalitan, 219 So. 3d 49 (Fla. 2017), the Florida Supreme Court issued a landmark decision striking down the statutory caps on noneconomic damages in personal‑injury medical malpractice cases. The Court held that the caps in Section 766.118 violated the Equal Protection Clause of the Florida Constitution (Article I, Section 2), fundamentally reshaping Florida’s medical malpractice landscape. Not surprisingly, the State—through Attorney General Pam Bondi—Trump’s former attorney general—defended the constitutionality of the caps, aligning itself with the Legislature’s effort to restrict noneconomic damages.

Background

The case arose after Susan Kalitan underwent outpatient surgery for carpal tunnel syndrome in 2007. During anesthesia, her esophagus was perforated, causing severe and permanent injuries. A jury awarded her approximately $4 million in noneconomic damages (such as pain and suffering), but the trial court reduced the award under Florida Statutes section 766.118, which imposed caps on noneconomic damages in medical malpractice cases. The case ultimately reached the Florida Supreme Court after the appellate court found those caps unconstitutional. 

The Court’s Decision

The court held that the statutory caps on noneconomic damages for personal injury medical malpractice claims violated the Equal Protection Clause of the Florida Constitution. Applying the rational basis test, the majority concluded that the caps arbitrarily reduced compensation for the most seriously injured patients while allowing less severely injured plaintiffs to recover their full noneconomic damages. The court also found insufficient evidence that the alleged medical malpractice insurance crisis—which had been the Legislature’s justification for the caps in 2003—continued to exist or that the caps were rationally related to addressing it. 

Relationship to Earlier Cases

The decision built directly on the court’s earlier ruling in Estate of McCall v. United States, which had invalidated similar noneconomic damages caps in wrongful death medical malpractice actions. Kalitan extended that reasoning to personal injury cases, effectively rendering the principal medical malpractice noneconomic damages caps in section 766.118 unenforceable under the Florida Constitution. 

Significance

North Broward Hospital District v. Kalitan is regarded as one of the most consequential Florida tort law decisions of the 2010s. Its practical effect was to remove statutory limits on noneconomic damages in most Florida medical malpractice personal injury cases, allowing juries’ awards for pain, suffering, disability, and similar harms to stand without being reduced by the invalidated caps. The decision has had lasting implications for medical malpractice litigation, insurers, health care providers, and injured patients throughout Florida.

Unfortunately, these decisions do not appear to directly address subsection (6) of Section 766.118, which singles out Medicaid recipients for disparate treatment. Fortunately, a recently resolved case, Chiaka Stewart v. Florida Health Sciences Center, Inc. d/b/a Tampa General Hospital, will send a message that the law cannot stand.

In July 2021, Ms. Stewart, a 38-year-old Medicaid recipient, arrived at Tampa General Hospital suffering from a severe headache. Rather than ordering brain imaging or obtaining a neurology consultation, her healthcare providers treated her symptoms with pain medication and discharged her home.

Within 30 hours of being discharged, Ms. Stewart suffered a massive stroke. She was rushed back to the hospital, where brain imaging revealed extensive cerebral blood clots. The hospital’s failure during her initial visit to timely diagnose and treat those clots resulted in catastrophic, permanent injuries, including blindness, left-sided paralysis, a neurogenic stutter, and severe cognitive impairment. She will require life-long care.

Ms. Stewart retained counsel to pursue compensation for her life-altering catastrophic injuries. Her attorneys undertook the substantial expense and risk of litigating her case despite a statute that purported to limit her recovery of noneconomic damages to just $300,000 because she was a Medicaid recipient.

In September 2025, the jury returned a verdict awarding Ms. Stewart $70.8 million in damages, $51 million of which was allocated for pain and suffering.

Following the verdict, the hospital invoked Section 766.118(6), Florida Statutes, seeking to reduce the jury’s $51 million award in noneconomic damages to the statute’s $300,000 cap.

In 2011, the Legislature justified 766.118(6) by asserting that the cap bore “a rational and reasonable relationship to the state’s objective of providing health care access to the indigent.” However, the Legislature failed to recognize that, at the time it enacted the amendment, both federal and Florida law already required hospital emergency departments to provide appropriate emergency medical care to every patient, regardless of Medicaid eligibility, insurance coverage, or ability to pay.

Accordingly, the cap on noneconomic damages cannot be rationally justified as an “incentive” to encourage healthcare providers to treat low-income patients because both federal and Florida law already required that care to be provided. Until Chiaka Stewart’s case, no Florida appellate court had been asked to consider this argument.

Trial Judge Mark Wolfe agreed with Ms. Stewart:

“The negligence here occurred in an ER setting where treatment is statutorily mandated and, therefore, not susceptible to being incentivized. In other words, Section 766.118(6)’s Medicaid cap cannot increase the probability that healthcare providers in the emergency department will treat Medicaid patients, because in an emergency department, they have no choice in the matter- they are legally obligated to treat Medicaid patients.”

Simple, sensible, straightforward, and just.

The jury returned its verdict on September 25, 2025. The defendants subsequently sought various means of challenging the final judgment entered by the court, including filing a notice of appeal. Ultimately, the parties settled the case, bringing the litigation to an end.

Justice served.

Because of the statutory cap—and the substantial expense and risk inherent in prosecuting medical malpractice claims—many medical malpractice attorneys routinely declined emergency‑room cases involving Medicaid recipients. The economics simply did not justify the investment. In light of the Stewart decision, however, that calculus is poised to change. With the cap ostensibly eliminated, these claims now carry a realistic prospect of full noneconomic recovery, making them far more viable for practitioners who previously had no choice but to turn them away.

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Contact us today at (305) 758-4900 or by email for a free consultation to learn your legal rights. If we accept your case, we will represent you on a contingency fee basis — meaning you pay no upfront costs. Our fee is collected only if we obtain a favorable recovery on your behalf. If there is no recovery, you owe nothing.

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.

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