Skip to Content

Florida’s Wrongful Death Medical Malpractice Caps Are Unconstitutional


Over the past decade, there have been a number of recent changes in Florida Medical Malpractice Law. In 2003, the Florida Legislature enacted Section 766.118, Florida Statutesentitled “Determination of Noneconomic Damages.” The most recent versionof the statute, enacted in 2011, attempted to limit noneconomic damages resulting from personal injury or wrongful death actions due to medical negligence to $500,000.00 per claimant, when the negligence was on the part of a practitioner. If the medical negligence resulted in a vegetative state or death, the statute attempted to limit the noneconomic damages to $1,000,000.00. With respect to non-practitioner defendants, the statute attempted to limit noneconomic damages to $750,000.00 per claimant; if the non-practitioner medical negligence results in a vegetative state or death, the statute attempted to limit noneconomic damages to $1,500,000.00 per claimant.

However, on March 13, 2014, the Florida Supreme Court struck down Florida’s statutory cap on wrongful death noneconomic damages recoverable in a medical malpractice action, deeming the statute as a violation of the Florida Constitution. The family of 20-year-old Michelle McCall, who died after she bled to death following a caesarian section for the birth of her a son in February 2006 at a Fort Walton Beach hospital, initiated the case. The Florida Supreme Court held:

The statutory cap on wrongful death noneconomic damages fails because it imposes unfair and illogical burdens on injured parties when an act of medical negligence gives rise to multiple claimants. In such circumstances, medical malpractice claimants do not receive the same rights to full compensation because of arbitrarily diminished compensation for legally cognizable claims. Further, the statutory cap on wrongful death noneconomic damages does not bear a rational relationship to the stated purpose that the cap is purported to address, the alleged medical malpractice insurance crisis in Florida. 

Estate of McCall v. United States134 So. 3d 894, 901 (Fla. 2014).

The Florida Supreme Court went on to say that Section 766.118 “has the effect of saving a modest amount for many by imposing devastating costs on a few-those who are most grievously injured, those who sustain the greatest damage and loss.” Estate of McCall at 903.

After the Estate of McCall decision, one less barrier exists to secure an award of damages for those who have been severely injured, and those who have died, due to medical negligence in Florida.  Stay tuned for additional updates on medical malpractice and medical negligence laws in Florida.

Sessums Law Group, P.A. provides complimentary case evaluations in medical negligence cases and legal services are provided on a contingency fee basis. Our offices are centrally located in Lakeland and Sebring, and we strive to provide personal service in a friendly atmosphere. At Sessums Law Group, P.A., we stand for you! 

See more at: /practice-areas/personal-injury/medical-malpractice

Share To: