“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.

Florida’s Wrongful Death Act traces its origins to an English statute enacted in 1846 known as Lord Campbell’s Act. That landmark legislation created, for the first time, a statutory cause of action for the wrongful death of a person resulting from the wrongful act, neglect, or default of another. Prior to the enactment of Lord Campbell’s Act, English common law did not recognize a civil cause of action for damages arising from a person’s death, even when the death was caused by another’s wrongful conduct.

Florida first adopted its modern Wrongful Death Act in 1972, when the Legislature enacted Chapter 72‑35, which created Sections 768.16–768.26 of the Florida Statutes. These sections have been amended over time, but 1972 is the year the statutory framework was originally established. It allows recovery by the decedent’s estate, and certain other specified persons, known as “survivors,” for the wrongful death of a person caused by the wrongful act or negligence of another, regardless of whether such act also constitutes a felony. Claimants are strictly limited to the damages allowed under the statutory scheme of recovery.

As originally enacted, the Act did not permit non-dependent adult children — s. 768.18(2) defines “adult” as 25 years of age or older — to recover damages for the loss of a parent’s support and companionship, or for the mental pain and suffering resulting from a parent’s wrongful death. Likewise, it did not allow grieving parents to recover such non-economic damages resulting from the wrongful death of an adult child.

This changed in 1990 with the enactment of CS/SB 324. The legislation amended the Act by expanding the rights of adult children to recover damages for lost parental companionship, instruction, and guidance, as well as for mental pain and suffering, when the decedent left no surviving spouse. The amendment also authorized each parent of an adult child to recover damages for mental pain and suffering resulting from the child’s wrongful death when there were no surviving relatives with a superior statutory claim.

Unfortunately, the bill’s sponsors were compelled by opposition from the insurance and medical industries to accept a significant exception to these otherwise sensible reforms. While the compromise may have been politically necessary to secure passage of the legislation, it created a substantial limitation on the expanded rights afforded by the amendment. That exception is codified in section 768.21(8), Florida Statutes, which provides as follows:

“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 exception has been controversial since its inception. In recent years, public opposition to what has become known as Florida’s “Free Kill” law has intensified, placing increasing pressure on elected officials to eliminate this inequitable provision.

In 2024, both chambers of the Florida Legislature passed legislation repealing the exception by margins sufficient to override a gubernatorial veto. Governor Ron DeSantis nevertheless vetoed the bill. Despite possessing the votes necessary to override that veto, the Republican-controlled Legislature declined to do so.

Many observers viewed this sequence of events as political theater. The Legislature appeared willing to cast symbolic votes in favor of repeal, thereby signaling support for grieving families, but unwilling to take the final step necessary to make repeal a reality. The mechanism existed; the political will did not.

As a result, Floridians continue to suffer the consequences of the Free Kill law. Our office receives inquiries on a weekly basis from adult children whose elderly parents died as a result of alleged medical negligence. Less frequently, but no less tragically, we also hear from parents seeking justice for the wrongful death of an adult child caused by medical malpractice. For many of these families, Florida law continues to deny any meaningful civil remedy.

When these individuals contact our office—many of whom already know that the law affords them no remedy—we encourage them to become advocates for change by sharing their stories with elected officials and the media. The growing momentum for reform is largely attributable to the efforts of these families, together with attorneys and other advocates throughout the state who have worked to bring attention to the injustice of the law.

Unfortunately, the insurance and medical industries possess significant political influence and resources, enabling them to mount strong opposition to legislative reform. As a result, efforts to repeal the exception have thus far fallen short, despite substantial public support for change.

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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.

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.

In every negligence action for personal injury or wrongful death, the plaintiff must establish three core elements: (1) a duty owed by the defendant; (2) a breach of that duty; and (3) that the breach proximately caused the claimed damages.

While duty and breach often dominate attention, proximate cause is the element that connects wrongdoing to legal responsibility. Without proximate cause, even clear negligence is not actionable.

Florida courts apply the “more likely than not” standard to determine causation. The plaintiff must prove that the defendant’s negligence probably caused the injury—not merely that it possibly did. See Tampa Electric Co. v. Jones, 138 Fla. 746, 190 So. 26 (1939); Greene v. Flewelling, 366 So.2d 777 (Fla. 2d DCA 1978); Bryant v. Jax Liquors, 352 So.2d 542 (Fla. 1st DCA 1977). As Prosser succinctly put it:

“A mere possibility of 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 Gooding Benchmark

The North Star of Florida’s proximate cause law remains Gooding v. University Hospital Building, Inc., 445 So.2d 1015 (Fla. 1984).

Emily Gooding, representing her late husband’s estate, alleged emergency room negligence in failing to timely diagnose and treat his abdominal aneurysm. Although her expert established a breach of medical standards, he failed to testify that immediate treatment would have more likely than not saved Mr. Gooding’s life. The Florida Supreme Court affirmed a reversal of the plaintiff’s jury verdict, holding that causation evidence must satisfy the “more likely than not” standard, not rest on a mere possibility of survival.

Directed Verdicts and Proximate Cause

The Gooding principle shapes when courts must take causation questions away from the jury. A directed verdict is appropriate “where no proper view of the evidence could sustain a verdict in favor of the non-moving party.” See Friedrich v. Fetterman & Assocs., 137 So.3d 362 (Fla. 2013).

A recent example is R.J. Reynolds Tobacco Co. v. Nelson, 47 Fla. L. Weekly D2436 (Fla. 1st DCA 2022). There, Reynolds was sued for design defect negligence causing COPD. The appellate court reversed the plaintiff’s verdict, finding no competent evidence that Reynolds’ conduct proximately caused the plaintiff’s disease. Once again, the absence of substantial causation evidence mandated a directed verdict.

But Sometimes, Proximate Cause Is a Jury Question

Not all proximate cause cases end in favor of the defendant. In Aragon v. Issa, M.D., 103 So.3d 887 (Fla. 4th DCA 2012), the appellate court reversed a trial judge’s post-verdict ruling for the defense. Because the plaintiff presented conflicting expert testimony supporting causation, the case should have been left to the jury.

Similarly, in Claire’s Boutiques v. Locastro, 85 So.3d 192 (Fla. 4th DCA 2012), the court upheld the denial of a directed verdict on causation. Although the defendant claimed there was insufficient proof that their negligence caused an infection, the court emphasized that if “sufficient evidence” supports the “more likely than not” standard, the issue must go to the trier of fact.

Primary Cause ≠ Proximate Cause

One of the most important clarifications in Florida law is that proximate cause does not require an act to be the “primary” cause of an injury. In Ruiz v. Tenet Hialeah Healthsystem, Inc., 260 So.3d 977 (Fla. 2018), the Florida Supreme Court reversed a directed verdict in a medical malpractice case.

The defendant doctor argued he merely “placed” the patient in a position to be harmed by the independent actions of others. The Court disagreed, reaffirming 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.”

This principle was famously applied in Sardell v. Malanio, 202 So.2d 746 (Fla. 1967), where a boy who threw a football was held potentially liable for injuries caused when another boy collided with a passerby while catching the ball. Proximate cause, the Court explained, hinges on whether an act substantially contributed to the injury, not whether it was direct or dominant.

Proximate Cause in Workers’ Compensation

Though often associated with tort law, proximate cause is equally fundamental in Florida workers’ compensation cases. Claimants must prove a causal link between an industrial accident and their injury with competent substantial evidence. See § 440.02(1), Fla. Stat.; Gator Industries, Inc. v. Neus, 585 So.2d 1174 (Fla. 1st DCA 1991).

In Escambia County Board of County Commissioners v. Reeder, 648 So.2d 222 (Fla. 1994), the claimant’s compensation was not reduced despite his failure to wear a safety belt on a bulldozer. The court held that the employer had to prove a causal connection between the refusal to wear safety equipment and the injury. Because that proof was lacking, the 25% statutory penalty pursuant to § 440.09(5) could not be applied.

Conclusion: Fundamentals Always Matter

Like a receiver taking his eyes off the ball or a tennis player forgetting footwork, lawyers sometimes lose sight of foundational principles. Proximate cause is a legal fundamental. It bridges the gap between wrongful conduct and compensable harm. Whether in personal injury, medical malpractice, or workers’ compensation, failing to establish proximate cause is fatal to a claim. Conversely, remembering and proving it can be the difference between victory and defeat.

In litigation, fundamentals always matter.

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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.

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.

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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