“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.

Our firm is grateful for the many cases we receive through referrals from fellow attorneys, and we routinely pay referral fees to our referring counsel in accordance with applicable ethical rules.

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.

That changed in 1975, when the Florida Legislature enacted Section 768.28, Florida Statutes, which partially waived sovereign immunity. For the first time, individuals could sue the state and its subdivisions—cities, counties, municipalities—for certain torts. However, this right came with significant limitations. Most notably, the statute capped damages at $100,000 per person and $200,000 per incident, regardless of the actual extent of the injuries or the number of victims. These caps remained unchanged for 36 years.

Modest Reform, Lingering Injustice

In 2009, the Legislature passed a long-overdue amendment, increasing the caps to $200,000 per individual and $300,000 per claim, effective July 1, 2011. While this was a step in the right direction, it remains grossly inadequate for victims of catastrophic government negligence.

Under these limits, if four people are severely injured by a government employee’s negligence, they must divide a maximum of $300,000 among them—no one may recover more than $200,000 individually, even if their injuries are lifelong or fatal. Not even a jury’s decision overrides the cap. For example, say a jury, after weighing the evidence, decides that a person’s damages, between pain and economic loss, exceed $5 million. After the verdict is rendered, the judge will thank the jurors for their service and send them on their way. In the case of a single harmed person, the most the court can award to that person is the $200,000 cap. That’s perverse. The jury’s opinion, after weighing the evidence fairly and impartially, is entirely disregarded in favor of unfair money-influenced legislation.

In 2025, two bills were put forward in the Florida Legislature to increase the limits to $1 million/$3 million, with incremental increases over time. The bills were opposed by organizations such as the Florida League of Cities, Florida Association of Counties, and Florida Hospital Association, while 25 lobbyists were amassed to kill the bills. While one of the bills was approved by the House, both died before reaching the Governor’s desk.

Planning-Level Immunity: An Untouchable Zone

Despite the partial waiver, absolute immunity remains intact for governmental decisions classified as planning-level or discretionary. These include judgments regarding the design, improvement, or initial construction of infrastructure—such as road layouts, intersection design, and placement of traffic control devices.

However, Florida courts have carved out a narrow exception: When a government entity is aware of a serious hazard that creates a hidden danger—effectively a trap—for the public, immunity is waived, and liability may attach (subject again to the statutory damage caps).

When Immunity Becomes Indifference

Our firm recently litigated a case that illustrates the dangers of this doctrine. We represented the husband and three young children of a woman who drowned after her cousin’s car veered into a canal at a poorly marked curve on a dark, rainy night. We uncovered that other vehicles had previously gone off the road at the same location, resulting in fatalities and near-fatal accidents. Just two months after our case, another young woman died under almost identical circumstances at the same curve.

The danger was well known. Still, no corrective action was taken until after these avoidable tragedies. After our lawsuit was instituted, one of the responsible government entities installed an extended guardrail—a fix costing very little —but only after multiple preventable deaths.

We argued, successfully, that this was not a protected planning-level decision. Rather, it was a failure to correct a known trap. But even when liability is established, the available remedy remains a fraction of what private defendants would face.

The Real Problem: Lack of Accountability

This case underscores the greatest flaw in sovereign immunity: a lack of financial accountability. Government entities, shielded from large verdicts, face little incentive to act with the same diligence expected of private citizens or corporations. Where a private business may be compelled to act swiftly to avoid multi-million-dollar judgments, the government can act slowly—or not at all—knowing that its worst-case financial exposure is capped by law.

In effect, sovereign immunity insulates misconduct and dulls the motivation to prevent harm. When negligence results in death or permanent injury, a figurative slap on the wrist is the only consequence.

It’s not just outdated. It’s unjust.

Time for Change

Our firm firmly believes that sovereign immunity, in both its absolute and limited forms, should be abolished or substantially reformed. Government entities should be held to the same standard of care as private individuals and corporations when their negligence causes serious harm.

In a just society, no one—least of all the government—should be above accountability.

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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.

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.

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.