McCall vs. USA

Florida’s Cap on Noneconomic Medical Malpractice Damages Pursuant to
Florida’s Constitution is Now in the Hands of the Florida Supreme Court

In June of 2005, Michelle McCall was receiving prenatal medical care at the United States Air Force clinic as a dependent of the United States Air Force.  Ms. McCall elected for the family practice department of the United State’s Air Force to provide her and her unborn child prenatal care and delivery services throughout her pregnancy.   Ms. McCall’s pregnancy was normal and typical until the last trimester.  On February 21, 2006, test results revealed that Ms. McCall’s blood pressure was high and she was suffering from preeclampsia.  Due to the serious change in her medical condition, Ms. McCall was induced immediately.

Ultimately, Ms. McCall delivered a healthy child.  However, the medical staff failed to timely notice that Ms. McCall lost a lot of blood giving birth.  As a result, Ms. McCall lost consciousness and died on February 27, 2006.

Legal History:

Ms. McCall’s family through her Estate sued the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671–80.  At the conclusion of a two (2) day bench trial, the District Court found the United State’s Air Force liable under the Federal Tort Claims Act for economic damages in the amount of $980,462.40.  The District Court found that the noneconomic damages due to Ms. McCall’s death to be $2,000,000.00  However, the District Court applied Florida’s statutory cap on noneconomic damages for medical malpractice claims and reduced the award to $1,000,000.00 for noneconomic damages.  The District Court also rejected the Plaintiff’s motion challenging the constitutionality of Florida’s statutory cap under both the Florida and United States Constitutions.

Appeal to the 11th Circuit Court of Appeals:

On appeal, the 11th Circuit Court of Appeals found that Florida’s statutory cap on noneconomic damages did not violate the Equal Protection Clause of the Fourteenth Amendment and the Takings Clause of the Fifth Amendment of the United States Constitution as well as the Takings Clause of Article X, § 6(a) of the Florida Constitution.

Interestingly yet, the 11th Circuit Court of Appeals certified the following questions of law to the Florida Supreme Court – Does Florida’s cap on noneconomic damage pursuant to Fla. Stat. § 766.118: (i) violate the right to equal protection under Article I, Section 2 of the Florida Constitution?; (ii) violate the right of access to the courts under Article I, Section 21 of the Florida Constitution?; (iii) violate the right to trial by jury under Article I, Section 22 of the Florida Constitution?; and (iv) violate the separation of powers guaranteed by Article II, Section 3 and Article V, Section 1 of the Florida Constitution?

The Florida Supreme Court’s Future Decision:

However the Florida Supreme Court rules, it will no doubt change the landscape of the legal world vis-à-vis medical malpractice law.  If the Court strikes down Florida’s cap on noneconomic damages, it will undoubtedly force more doctors to go “bare” and elect not to have medical malpractice insurance as insurance premiums will skyrocket.  If the cap on noneconomic damages stands, many plaintiffs will not file lawsuits, as attorneys in Florida will be reluctant to pursue medical malpractice claims.

David Di Pietro, Esq.  

David Di Pietro is the founding partner of Di Pietro Law, P.A. in Fort Lauderdale, Florida. Fort Lauderdale medical malpractice attorney David Di Pietro is a former prosecutor and handles all medical malpractice matters, including the representation of “bare” doctors.   The Fort Lauderdale medical malpractice firm of Di Pietro Law, P.A. is located at the Legacy Bank Building, 12 SE 7th Street, Suite 608 Fort Lauderdale, FL 33301. Telephone: 954.712.3070.

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