Interestingly, these caps do not apply to claims brought under the FTCA. The first paragraph of 28 U.S.C. § 2674 makes this explicit, stating:

“The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual [emphasis added] under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.”

Simply put, although FTCA claims are brought against the federal government and its entities — just as claims under Florida’s Section 768.28 are brought against the state and its subdivisions — for purposes of damages, FTCA claims are treated as if they were brought against an individual rather than a government entity under 768.28.

Currently, under Florida law, individuals are not entitled to the misguided constraints of arbitrary damage caps.

Unfortunately, because Florida’s substantive law governs FTCA claims arising in the state, the FTCA does not protect all claims from the reach of every flawed or restrictive Florida law. For example, the Florida Wrongful Death Act (Fla. Stat. §§ 768.16–768.26) restricts recovery for certain survivors in medical malpractice cases, and those limitations still apply even to claims brought under the FTCA. Thus, the wrongful death of a patient resulting from medical malpractice at a VA hospital is governed by the same restrictive Florida law that applies to any other medical malpractice wrongful death case.

Florida’s sovereign immunity cap — essentially a modern echo of the old maxim that ‘the king can do no wrong’ –makes pursuing most tort claims against the state and its subdivisions virtually untenable. Very few lawyers are willing to invest the time and resources to challenge the sovereign for limited damages, knowing the state can fight with impunity, indifferent to the outcome, and effectively discourage even the thought of pursuing otherwise meritorious claims.

Thankfully, Congress chose not to shield the federal government with the same outdated liability protections that the Florida Legislature grants to state entities.*

*For administrative settlements, attorney fees are capped at 20%, while for cases that proceed to a federal court lawsuit and result in a settlement or judgment, the cap increases to 25%.

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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.

Sovereign Immunity is a legal concept applied in monarchies and constitutional monarchies such as the United Kingdom, Japan, Jordan, and the Netherlands, to make the sovereign or state immune from civil suit or criminal prosecution. It is derived from the Latin maxim Rex non potest peccare, meaning “the king can do no wrong.” Florida has enacted a modified version of sovereign immunity in the area of civil law involving personal injuries and wrongful death.

Under Florida civil law, people and companies who are not protected by sovereign immunity can be held accountable up to the full measure of the damages caused by their negligence. Those damages can include pain and suffering, medical expenses, and loss of income. In cases involving serious injuries or the loss of life, the full measure of damages can be in the millions.

Florida’s sovereign immunity law limits the amount of compensation the sovereign can be compelled to pay. Under section 768.28(5)(a), Florida Statutes, the sovereign, described as “the state and its agencies and subdivisions,” is limited to paying $200,000 per individual, $300,000 per claim. In other words, the most a sovereign will ever have to pay in a single case is $300,000. It does not matter how substantial the actual losses are.

This arbitrary sovereign immunity cap defeats the public policy of encouraging safe conduct.

Because of the cap, most personal injury and wrongful death lawyers refuse to accept cases against sovereign entities. Not only is the potential recovery limited, cap defendants tend to put up the biggest fight since it is taxpayer money rather than their own being used to fund the fight.

Some other reasons why lawyers reject cap cases:

Another important public policy is the principle known as “judicial economy.” Essentially, limiting the use of court resources. The sovereign immunity cap defeats this policy. In non-sovereign cases, the defendant can be motivated to settle for a reasonable sum to avoid the potential of having to pay a significantly higher jury verdict. The sovereign cap eliminates this leverage point. Even in cases with clear fault and damages well in excess of the cap, sovereign defendants almost never offer to settle for the full cap amount. This is because they have nothing to lose and often gain by holding out.

Prosecuting any case to a jury verdict is costly and time-consuming. Where the potential recovery is capped no matter what the jury says, it quickly reaches the point where continuing to push forward does not make sense. The sovereign knows this, so it holds out. Even if a jury awards ten or even a hundred times more than the cap, the sovereign cannot be compelled to pay a penny more than the cap amount.

Not even a successful demand for judgment can result in the cap being breached. Under section 768.79, Florida Statutes, a plaintiff can recover attorney’s fees and costs from a defendant if the plaintiff recovers a judgment in an amount at least 25% greater than a settlement offer served in accordance with the statute. In some instances, those fees and costs can amount to hundreds of thousands of dollars. The purpose of the statute is to encourage settlements. The statute works exceedingly well in non-cap cases. In cap cases, it is virtually meaningless. Not even an award under 768.79 can force the sovereign to pay more than the cap amount. If, for example, the jury verdict is $2,000,000 and the 768.79 award is $350,000, the most the sovereign has to pay is $200,000 to any one person and no more than $300,000 if more than one person is involved.

Interestingly, the sovereign immunity cap does not apply in workers’ compensation cases. The sovereign can be held to full account for the benefits available under the workers’ compensation system. However, it should be noted that non-economic damages such as pain and suffering are not available in workers’ compensation cases. This is often the largest damage element of a personal injury or wrongful death case. Nevertheless, the sovereign’s exposure in a workers’ compensation case can be sizeable, well above $300,000.

The sovereign immunity cap has worn out its usefulness, if it ever had any to begin with, in America’s jurisprudential system — Florida is not the only state to employ the concept. It is time for the antiquated concept to be relegated to the dustbin of history.

With all of this said, anyone harmed through the negligence of a sovereign should consult with a lawyer to learn his or her rights. We are in suit now against a non-cap surgeon and the sovereign hospital in which the surgeon caused significant harm to our client performing surgery in the hospital. (We only decided to sue the sovereign because the action is ancillary to our case against the non-sovereign doctor. We would not have filed suit against the sovereign alone.)

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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.