Currently, in most cases, there are no caps on the amount of damages that can be recovered by the victim of medical malpractice.   Section 766.118(2)(a), Florida Statutes, imposed certain caps on the Non-Economic Damages (pain and suffering) that victims of medical malpractice could recover, however, the Florida Courts have since found that statute to be unconstitutional.

When enacted, the statute provided for different caps on Non-Economic Damages depending on the circumstances and the type of Health Care Provider involved, i.e. Emergency Department, Physician, Hospital, Wrongful Death or Catastrophic Injuries.  For example, the statute provided that non-economic damages for the negligence of a Physician could not exceed $500,000 per claimant, but if the negligence resulted in a Permanent Vegetative State or Death, the Non-Economic damages were capped at $1.0 million.  §766.118(2)(b), Florida Statutes.  The statute also imposed a cap of $750,000 on Non-Economic damages suffered due to the negligence of Non-Practitioner defendants, such as Hospitals or Clinics.

In 2014, the Florida Supreme Court held that the cap on Non-Economic Damages in a Wrongful Death Case violated the Equal Protection Clause of the Florida Constitution.  Estate of McCall v. United States, 134 So.3d 894 (Fla. 2014).    In 2017, the Court ruled that the statute as it applied to a claim for personal injuries was also unconstitutional.   “The caps in section 766.118 violate equal protection under the rational basis test because the arbitrary reduction of compensation without regard to the severity of the injury does not bear a rational relationship to the Legislature’s stated interest in addressing the medical malpractice crisis.”  N. Broward Hosp. Dist. v. Kalitan, 219 So.3d 49, 56 (Fla. 2017).  As a result, there is no longer a limit on the amount of Non-Economic Damages an injured party can recover in a malpractice case pursuant to this statute.

There are, however, caps on damages that can be recovered in certain other circumstances.  For example, if the Physician or the Hospital where the negligent care was given were Employees of the County or the State, their liability will be limited by Sovereign Immunity.  Pursuant to §768.28, Florida Statutes, neither the State nor its Agencies or Subdivisions shall be liable to pay a claim or a judgment by any one person which exceeds the sum of $200,000 or any claim or judgment, or portions thereof, which, when totaled with all other claims or judgments paid by the State or its Agencies or Subdivisions arising out of the same incident, exceeds the sum of $300,000. Further, no claim for punitive damages can be made.

Caps on certain damages may also apply if the parties agree to Voluntary Binding Arbitration at the end of a Medical Malpractice Presuit Investigation.  Pursuant to §766.207(7), Florida Statutes, the Non-Economic Damages in such an arbitration proceeding will be capped at $250,000 per claimant in addition to other limitations of what can be recovered.  If a Prospective Defendant Healthcare Provider requests Arbitration to end Presuit but the Plaintiff rejects Arbitration, then the Plaintiff will be limited to Non-Economic Damages of $350,000 per claimant once a lawsuit is filed.  Again, there will also be other limitations on what can be recovered.  §766.209(4), Florida Statutes.

If you have any questions regarding a potential medical malpractice claim, and the potential impact of the above-described caps on the damages you can recover, contact Bonner Law at 305-676-8800 for a free consultation.  We have over 30 years of experience representing patients and healthcare providers in medical malpractice litigation.