Florida’s Damage-Cap Debate Is More Complicated Than a Slogan
A familiar claim appears repeatedly in Florida’s medical-malpractice debate: the Florida Supreme Court has ruled that noneconomic damage caps are unconstitutional.
That statement is too broad.
In Estate of McCall v. United States, the Florida Supreme Court struck down an aggregate cap on noneconomic damages in medical-malpractice wrongful-death cases. The structure required multiple survivors to divide the same maximum amount, meaning that an individual survivor’s recovery could decrease simply because other survivors existed.
Later, in North Broward Hospital District v. Kalitan, the Court invalidated caps applied to the noneconomic damages of living medical-malpractice patients. There, the concern was different: a fixed ceiling placed the greatest proportional burden on patients who had suffered the most severe injuries.
Those decisions are important, but they did not establish that every conceivable limitation on noneconomic damages is unconstitutional. Other Florida cases demonstrate that statutory architecture matters. Per-claimant treatment, voluntary arbitration, substitute compensation systems, the nature of the underlying claim, and the classification created by the Legislature can all affect the constitutional analysis.
That distinction is especially important in the debate over Florida Statute § 768.21(8). If Florida repeals the statute and restores noneconomic wrongful-death claims to presently excluded survivors, the Legislature may still face the question of whether a carefully designed, survivor-only compensation structure could constitutionally accompany that reform.
The Accountability Gap’s research does not claim that such a structure is guaranteed to survive judicial review. It argues something narrower: McCall and Kalitan do not answer that question categorically. A survivor-only, per-claimant structure would present a materially different constitutional issue—one requiring careful drafting, individualized treatment, a current evidentiary record, and serious consideration of the strongest equal-protection objections.
The debate therefore should not end with the slogan “damage caps are unconstitutional.”
The more useful question is:
What kind of compensation structure is being proposed, to whom does it apply, how does it operate, and can the Legislature justify those distinctions under Florida constitutional law?
That is the question explored in this podcast.
Listen to the podcast:
