The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Judiciary
BILL: CS/SB 248
INTRODUCER: Judiciary Committee, Senator Yarborough and others
SUBJECT: Medical Negligence
DATE: January 23, 2024
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Bond Cibula JU Fav/CS
2. AHS
3. RC
I. Summary:
CS/SB 248 expands the application of the Florida Wrongful Death Act by repealing exceptions
that prohibit certain parents and children of a deceased patient who dies due to medical
negligence from recovering noneconomic damages.
The bill also enacts limits on non-economic damages that apply to all actions for medical
negligence. The limits applicable to negligence by a practitioner are $500,000 per claimant; but
limited to $150,000 if the care was related to emergency services and the claimant and
practitioner had no existing patient-practitioner relationship, or limited to $300,000 per claimant
if services were provided to a Medicaid recipient and not provided in a wrongful manner. The
limits applicable to a nonpractitioner are $750,000 per claimant; but are limited to $300,000 per
claimant if the nonpractitioner is a hospital or ambulatory surgical center, services were provided
to a Medicaid recipient, and the services were not provided in a wrongful manner.
The bill also requires the Office of Insurance Regulation to examine the medical malpractice
premium rates in light of the changes made in this bill, and requires insurers to furnish relevant
data to the office. The bill requires the Office of Program Policy Analysis and Government
Accountability to study the efficacy of the limits on noneconomic damages created by the bill
and issue a report of its findings and recommendations by December 31, 2029.
The bill is effective July 1, 2024, and applies to causes of action accruing on or after that date.
REVISED: BILL: CS/SB 248 Page 2
II. Present Situation:
History of Wrongful Death Actions
Most of the state’s tort law is derived from the common law. At common law, there was no right
to recover for the negligent wrongful death of another person.
1
Over time, however, the
Legislature authorized recoveries for wrongful death and expanded the types of damages
recoverable and the classes of survivors entitled to recover. “Because wrongful death actions did
not exist at common law, all claims for wrongful death are created and limited by Florida’s
Wrongful Death Act.”
2
The early versions of the state’s wrongful death laws limited the right to recover damages to a
surviving spouse, to surviving children if there was no surviving spouse, and to those dependent
upon the decedent for support if there was no one belonging to the prior two classes, and finally
to the executor of the decedent’s estate if there was no one belonging from the prior three
classes.
3
To show dependence on the decedent, a claimant had to show that he or she was a
minor, physically or mentally disabled, or elderly.
4
Adults who were mentally and physically
capable of providing for themselves could not recover despite having been supported by the
decedent.
5
Any damages recoverable were limited to a form of economic damages.
The wrongful death law was substantially re-written in 1972.
6
That law created the Florida
Wrongful Death Act, which provides the framework for current law. One of the major changes
made by this law was to consolidate or merge survival and wrongful death actions.
7
A survival
action is a legal action allowed under the survival statute to continue notwithstanding the
plaintiff’s death. As merged, the 1972 law allowed the statutory survivors to recover damages for
their pain and suffering as a substitute for recoveries for the decedent’s pain and suffering under
the survival statute.
8
The type of damages that a survivor is entitled to, under the 1972 law, depends upon the
classification of the survivor. The 1972 law allows all survivors to recover the value of lost
support and services, a type of economic damages. A surviving spouse may also recover loss of
marital companionship and pain and suffering, types of noneconomic damages. Minor children,
then defined as under age 21
9
and unmarried, may also recover loss of parental companionship
and pain and suffering. The parents of a deceased minor child may also recover pain and
suffering. Any survivor who paid them may recover final medical, funeral, and burial expenses.
The estate of the decedent may recover lost earnings from date of injury to date of death, plus net
1
Louisville & Nashville Railroad Co. v. Jones, 45 Fla. 407, 416 (Fla. 1903).
2
Chinghina v. Racik, 647 So. 2d 289, 290 (Fla. 4
th
DCA 1994).
3
Duval v. Hunt, 34 Fla. 85 (Fla. 1894) (discussing a wrongful death statute enacted in 1883).
4
Id. at 101-102.
5
The Court interpreted the dependency requirement in the statute as requiring a person to have a genuine inability to support
himself or herself based on the view that strong, healthy adults who are capable of earning a livelihood should not be content
to “live in idleness upon the fruits of [another’s] labor.” Id. at 101.
6
Chapter 72-35, Laws of Fla.
7
Sheffield v. R.J. Reynolds Tobacco Co., 329 So. 3d 114, 121 (Fla. 2021).
8
Martin v. United Sec. Services, Inc., 314 So. 2d 765, 767 (Fla. 1975).
9
Florida changed the age of majority from 21 to 18 in the following year, but that act did not change the reference to age 21
in the wrongful death law. Section 743.07, F.S.; chapter 73-21, Laws of Fla. BILL: CS/SB 248 Page 3
accumulations, which is essentially an estimate of the present value of the future estate that
would have been available for inheritance.
A 1981 act expanded the definition of “minor children” to include all children of the decedent
under age 25, regardless of whether such child is married or dependent.
10
The statutes did not
authorize a wrongful death action by a nondependent, adult child for the loss of a parent or an
action by a parent for the loss of an adult child.
11
In 1990, the Legislature generally expanded the class of survivors entitled to recover damages
for pain and suffering for a wrongful death.
12
As expanded, a decedent’s adult children may
recover damages for pain and suffering if there is no surviving spouse. The parents of an adult
decedent may also recover damages for pain and suffering if there is no surviving spouse or
surviving minor or adult children.
13
However, the same law that expanded the class entitled to recover damages for pain and
suffering for a wrongful death precluded the additional class members from recovering those
damages for a wrongful death based on medical malpractice.
14
Thus, a narrower group of
survivors may recover damages for pain and suffering for a wrongful death that is caused by
medical malpractice, and a broader group may recover damages for pain and suffering for death
that is caused by all other forms of negligence.
In a 2000 opinion, the Florida Supreme Court found the medical negligence exception
constitutional.
15
The Court found that the exception was rationally related to the need to control
the costs of health care and medical malpractice insurance due to a medical malpractice
insurance crisis. However, Justice Pariente, in her dissenting opinion, argued that the exception
should be found to be unconstitutional because of her belief that the medical malpractice
insurance crisis, which initially justified the exception, no longer existed.
16
The Florida Supreme
Court later found that the malpractice crisis was over,
17
but that finding did not overrule the
ruling that the medical negligence exceptions are constitutional.
18
Current Effect of the Medical Negligence Exceptions to the Wrongful Death Law
Currently, neither an adult (25+) child of an unmarried person who dies due to medical
negligence, nor the parents of an adult (25+) child who dies due to medical negligence, may
recover noneconomic damages (commonly referred to as “pain and suffering damages”). They
may, however, recover through the estate economic damages such as net accumulations, final
medical bills, and funeral and burial expenses. Plaintiff’s attorneys report that these other
10
Chapter 81-183, Laws of Fla.
11
Mizrahi v. North Miami Medical Center, Ltd., 761 So. 2d 1040, 1042 (Fla. 2000).
12
Chapter 90-14, Laws of Fla.
13
Id. (amending s. 768.18(3) and (4), F.S.). The adult children were also authorized by the 1990 law to recover noneconomic
damages for lost parental companionship, instruction, and guidance.
14
Id. (amending s. 768.18(8), F.S.).
15
Mizrahi v. North Miami Medical Center, Ltd., 761 So. 2d 1040, 1042 (Fla. 2000).
16
Id.
17
Estate of McCall v. United States, 134 So. 3d 894 (Fla. 2014). North Broward Hospital District v. Kalitan, 219 So. 3d 49
(Fla. 2017).
18
Santiago v. Rodriguez, 281 So. 3d 603 (Fla. 2nd DCA 2019), rev. dismissed, 2020 WL 927717 (Fla. 2020). BILL: CS/SB 248 Page 4
damages are often insufficient to warrant the cost and time required to prosecute a medical
negligence case.
19
Medical Negligence Actions
Procedures for a Medical Negligence Action
Medical negligence claims are subject to statutory presuit screening and investigation
requirements.
20
A claimant may, and typically does, request the relevant medical records, which
must be furnished by the medical providers at a reasonable charge.
21
The claimant must then
conduct a reasonable investigation of the claim and obtain a written opinion from a medical
expert that malpractice occurred.
22
The claimant may then serve a notice of intent to initiate
litigation on every prospective defendant. The suit may not be filed until at least 90 days after
service of the notice.
23
During the 90 days, the parties must engage in pretrial discovery
24
and the
prospective defendant must conduct an investigation.
25
If not resolved in the 90 days, the
claimant may file suit. When filing the suit, the attorney must file a certificate that he or she has
reviewed the evidence and has a good faith belief that a medical negligence case is warranted.
26
Failure of the claimant to pursue the pretrial process constitutes grounds for a dismissal of the
claim. A failure of any party to the action to cooperate with the presuit process may be grounds
to strike any claim or defense raised by the non-cooperative party.
27
After the presuit
requirements are met, a claim of medical negligence generally proceeds through the court system
like any other tort action.
General Statutory Limits on Noneconomic Damages in Medical Negligence Actions
Current statutes establish limits on an award of noneconomic damages in a medical negligence
action. As will be discussed shortly hereafter, these statutory limits are not currently enforced by
the courts. It is important to note that these limits do not limit an award of economic damages.
Economic damages include lost wages, medical expenses, and any other form of actual out-of-
pocket expense. The only limit on an award of economic damages is reasonableness.
The limits on noneconomic damages in a medical negligence action vary based on the status of
the negligent party and in some instances are based on the relationship between the provider and
the patient. For purposes of the limits, a negligent party is classified as either a “practitioner” or a
“nonpractitioner,” which are defined as:
A “practitioner” includes any person licensed as a physician, physician assistant, osteopathic
physician, chiropractor, podiatrist, naturopath, optometrist, dentist, midwife, physical
19
Fasig Brooks Law Offices, Unfair and Illogical: Florida’s Wrongful Death Medical Malpractice Law,
https://www.fasigbrooks.com/2019/02/unfair-and-illogical-floridas-wrongful-death-med/, last accessed Jan. 8, 2024 (stating
that “such limited recovery would not make a malpractice lawsuit financially feasible”).
20
Sections 766.104, 766.106 and 766.203, F.S.
21
Sections 766.104(3) and 766.204, F.S.
22
Sections 766.104(1) and 766.203(2), F.S.
23
Section 766.106(4), F.S.
24
Section 766.106(6) and 766.205, F.S.
25
Section 766.203(3), F.S.
26
Section 766.104(1), F.S.
27
Section 766.106(7), F.S. BILL: CS/SB 248 Page 5
therapist, or advanced practice registered nurse. The term “practitioner” also means any
association, corporation, firm, partnership, or other business entity under which such
practitioner practices or any employee of such practitioner or entity acting in the scope of his
or her employment. For the purpose of determining the limitations on noneconomic damages
set forth in this section, the term “practitioner” includes any person or entity for whom a
practitioner is vicariously liable and any person or entity whose liability is based solely on
such person or entity being vicariously liable for the actions of a practitioner.
28
The term “nonpractitioner” is not defined in statute nor in case law. It appears to reference
any individual or entity liable for medical negligence that does not fall within the definition
of “practitioner.”
A medical negligence claim against a practitioner is limited as follows: In general, noneconomic
damages may not exceed $500,000 per claimant, and no individual practitioner is liable for more
than $500,000 in noneconomic damages, regardless of the number of claimants.
29
However:
The total noneconomic damages recoverable from all practitioners, regardless of the number
of claimants, is $1 million if:
o The negligence resulted in a permanent vegetative state or death; or
o The trial court determines that a manifest injustice would occur unless increased
noneconomic damages are awarded, based on a finding that because of the special
circumstances of the case, the noneconomic harm sustained by the injured patient was
particularly severe; and the trier of fact determines that the defendant’s negligence caused
a catastrophic injury to the patient.
30
If the practitioner was providing emergency services and care to a patient who does not have
a then-existing patient-practitioner relationship with that practitioner, then:
o Regardless of the number of practitioner defendants, noneconomic damages may not
exceed $150,000 per claimant, and
o The total noneconomic damages recoverable by all claimants from all practitioners may
not exceed $300,000.
31
If the practitioner was providing medical services to a Medicaid recipient, regardless of the
number of such practitioner defendants providing the services and care, noneconomic
damages may not exceed $200,000 per claimant, unless the claimant pleads and proves, by
clear and convincing evidence, that the practitioner acted in a wrongful manner, in which
case damages may not exceed $300,000.
32
For purposes of the Medicaid exception, the term “wrongful manner” means acting “in bad faith
or with malicious purpose or in a manner exhibiting wanton and willful disregard of human
rights, safety, or property.”
33
A medical negligence claim against a nonpractitioner is limited as follows: In general,
noneconomic damages may not exceed $750,000 per claimant, and no individual nonpractitioner
28
Section 766.118(1)(c), F.S.
29
Section 766.118(2)(a), F.S.
30
Section 766.118(2)(b), F.S.
31
Section 766.118(4), F.S.
32
Section 766.118(6), F.S.
33
Section 766.118(6)(c), F.S. BILL: CS/SB 248 Page 6
is liable for more than $750,000 in noneconomic damages, regardless of the number of
claimants.
34
However:
The total noneconomic damages recoverable by such claimant from all nonpractitioner
defendants may not exceed $1.5 million if:
o The negligence resulted in a permanent vegetative state or death, or
o The trial court determines that a manifest injustice would occur unless increased
noneconomic damages are awarded, based on a finding that because of the special
circumstances of the case, the noneconomic harm sustained by the injured patient was
particularly severe; and the trier of fact determines that the defendant’s negligence caused
a catastrophic injury to the patient.
35
If the nonpractitioner was a hospital or ambulatory surgical center providing medical services
to a Medicaid recipient, regardless of the number of such nonpractitioner defendants
providing the services and care, noneconomic damages may not exceed $200,000 per
claimant, unless the claimant pleads and proves, by clear and convincing evidence, that the
practitioner acted in a wrongful manner, in which case damages may not exceed $300,000.
36
These limits are commonly referred to as a “per incident” limit as opposed to a “per claimant”
limit. These limits are in current statutes but are not enforced because appellate court decisions
have ruled them unconstitutional.
Leading Florida Cases finding the General Limits on Noneconomic Damages in Medical
Negligence Litigation to be Unconstitutional
In McCall, the court found that the limits on noneconomic damages in medical negligence
litigation that were created by the Legislature’s choice of “per incident” limits rather than “per
claimant” limits
37
violated the Equal Protection Clause of the state constitution,
38
finding that:
The plain language of this statutory plan irrationally impacts circumstances which
have multiple claimants/survivors differently and far less favorably than
circumstances in which there is a single claimant/survivor and also exacts an
irrational and unreasonable cost and impact when, as here, the victim of medical
negligence has a large family, all of whom have been adversely impacted and
affected by the death.
39
Three years later, the Florida Supreme Court in Kalitan again ruled the limits unconstitutional,
this time in a single claimant case. Again using the rational basis test of Equal Protection
analysis, the court ruled that “the arbitrary caps are not rationally related to alleviating the
purported medical malpractice crisis.”
40
34
Section 766.118(3)(a), F.S.
35
Section 766.118(3)(b), F.S.
36
Section 766.118(6), F.S.
37
Est. of McCall ex rel. McCall v. United States, 642 F.3d 944, 951 (11th Cir. 2011), certified question answered sub nom.
Est. of McCall v. United States, 134 So. 3d 894 (Fla. 2014)
38
Article I, s. 2, FLA. CONST.
39
Est. of McCall v. United States, 134 So. 3d 894, 901–02 (Fla. 2014).
40
N. Broward Hosp. Dist. v. Kalitan, 219 So. 3d 49, 58 (Fla. 2017). BILL: CS/SB 248 Page 7
Criticism of McCall and Kalitan
It appears that McCall and Kalitan were decided contrary to legislative intent and contrary to
case law interpreting the equal protection clauses of the United States Constitution and the State
Constitution. They also are inconsistent with the decisions of other courts addressing limits on
damages.
The criticism of McCall starts in the opinion itself. The opinion is very weak on its face, with
only two justices signing onto the primary opinion, with three others concurring in the result
only. Indeed, the three concurring justices said:
[We] disagree with the plurality’s application of the rational basis test in this case.
Specifically, [our] primary disagreement is with the decision not to afford deference
to the legislative findings in the absence of a showing that the findings were “clearly
erroneous.” Univ. of Miami v. Echarte, 618 So.2d 189, 196 (Fla. 1993).
Although this Court is not bound to blindly defer to all legislative findings, [we]
disagree with the plurality’s independent evaluation and reweighing of reports and
data, including information from legislative committee meetings and floor debate,
as well as an article published in the Palm Beach Post newspaper, as part of its
review of whether the Legislature’s factual findings and policy decisions as to the
alleged medical malpractice crisis were fully supported by available data. See, e.g.,
plurality op. at 908–10 (Lewis, J.) (quoting from the legislative floor debate and
committee meeting testimony and reviewing studies); id. at 910–11 (citing to and
quoting from a newspaper article and quoting additional legislative committee
testimony and floor debate).
41
The dissent in McCall went further, pointing out that the majority failed to honor the ordinary
standards for Equal Protection analysis by a court, saying:
Under a ‘rational basis’ standard of review a court should inquire only whether it
is conceivable that the regulatory classification bears some rational relationship to
a legitimate state purpose[:]
The burden is upon the party challenging the statute or regulation to
show that there is no conceivable factual predicate which would
rationally support the classification under attack. Where the
challenging party fails to meet this difficult burden, the statute or
regulation must be sustained.
Fla. High Sch. Activities Ass’n v. Thomas, 434 So.2d 306, 308 (Fla. 1983); see also
Westerheide v. State, 831 So.2d 93, 112 (Fla. 2002). It is not the judiciary’s task
under the rational basis standard “to determine whether the legislation achieves its
intended goal in the best manner possible, but only whether the goal is legitimate
and the means to achieve it are rationally related to the goal.” Loxahatchee River
41
Est. of McCall v. United States, 134 So. 3d 894, 916–17 (Fla. 2014). BILL: CS/SB 248 Page 8
Envtl. Control Dist. v. Sch. Bd. of Palm Beach Cnty., 496 So.2d 930, 938 (Fla. 4th
DCA 1986).
42
Similarly, the criticism of Kalitan starts in the opinion itself. The dissent noted:
The majority just discards and ignores all of the Legislature’s work and fact-
finding. But, under our constitutional system, it is the Legislature, not this Court,
that is entitled to make laws as a matter of policy based upon the facts it finds. See
art. II, § 3, Fla. Const.; art. III, § 1, Fla. Const. It is the Legislature’s task to decide
whether a medical malpractice crisis exists, whether a medical malpractice crisis
has abated, and whether the Florida Statutes should be amended accordingly. For a
majority of this Court to decide that a crisis no longer exists, if it ever existed, so it
can essentially change a statute and policy it dislikes, improperly interjects the
judiciary into a legislative function.
43
The U.S. Supreme Court has said that legislative findings should be given great deference by the
courts when deciding on the constitutionality of a law being challenged on equal protection
grounds. The standard is:
We many times have said, and but weeks ago repeated, that rational-basis review
in equal protection analysis is not a license for courts to judge the wisdom, fairness,
or logic of legislative choices. Nor does it authorize the judiciary to sit as a
superlegislature to judge the wisdom or desirability of legislative policy
determinations made in areas that neither affect fundamental rights nor proceed
along suspect lines. For these reasons, a classification neither involving
fundamental rights nor proceeding along suspect lines is accorded a strong
presumption of validity. Such a classification cannot run afoul of the Equal
Protection Clause if there is a rational relationship between the disparity of
treatment and some legitimate governmental purpose. Further, a legislature that
creates these categories need not actually articulate at any time the purpose or
rationale supporting its classification. Instead, a classification “must be upheld
against equal protection challenge if there is any reasonably conceivable state of
facts that could provide a rational basis for the classification.
A State, moreover, has no obligation to produce evidence to sustain the rationality
of a statutory classification. A legislative choice is not subject to courtroom
factfinding and may be based on rational speculation unsupported by evidence or
empirical data. A statute is presumed constitutional, and the burden is on the one
attacking the legislative arrangement to negative every conceivable basis which
might support it, whether or not the basis has a foundation in the record. Finally,
courts are compelled under rational-basis review to accept a legislature’s
generalizations even when there is an imperfect fit between means and ends. A
classification does not fail rational-basis review because it is not made with
mathematical nicety or because in practice it results in some inequality. The
42
McCall at 927.
43
Kalitan, at 63 (Polston, dissenting). BILL: CS/SB 248 Page 9
problems of government are practical ones and may justify, if they do not require,
rough accommodations—illogical, it may be, and unscientific.
44
Medical Negligence Cases and Offers to Arbitrate
In addition to the general limits on medical negligence that apply to all medical negligence cases,
which limits are not enforced by the courts, current law contains different limits on noneconomic
damages in medical malpractice cases that are. The limits apply where the parties agree to
binding arbitration of the claim.
45
Either party may offer arbitration, the other has 30 days to
reply.
46
If the parties agree to arbitration, noneconomic damages are limited to $250,000 per
incident, and are calculated on a percentage basis with respect to capacity to enjoy life, so that a
finding that the claimant’s injuries resulted in a 50-percent reduction in his or her capacity to
enjoy life would warrant an award of not more than $125,000 noneconomic damages.
47
Future
economic damages are paid in periodic payments, and the defendant must pay the plaintiff’s
attorney fees.
48
Other provisions not relevant to this analysis apply. If a defendant refuses a
plaintiff offer for arbitration and thereafter loses at trial, the defendant is additionally liable to the
plaintiff for reasonable attorney’s fees.
49
If a plaintiff rejects a defendant’s offer of binding
arbitration, the plaintiff is limited to noneconomic damages of no more than $350,000 per
incident.
50
The Florida Supreme Court has found these limits on noneconomic damages to be constitutional
in Echarte
51
(access to courts challenge) and Phillipe
52
(equal protection challenge).
Issues Related to Medical Malpractice Litigation and Florida's Unlimited Liability System
High Premiums in Florida
The Florida Office of Insurance Regulation (OIR) publishes an annual report regarding medical
malpractice insurance. In the report, the OIR examined the top 10 states for physician
malpractice. The report found that for the year 2022 “Florida is the highest of the 10 states in
seven of the eight examples and ranked third as far as premiums go in the other scenario.”
53
For
a typical $1 million policy, the OIR found:
44
Heller v. Doe by Doe, 509 U.S. 312, 319–21 (1993) (internal citations and quote marks removed).
45
See generally, ss. 766.207, 766.208 and 766.209, F.S.
46
Section 766.207(3), F.S.
47
Section 766.207(7)(b), F.S.
48
Sections 766.207(7)(c) and (7)(f), F.S.
49
Section 766.209(3), F.S.
50
Section 766.209(4), F.S.
51
Univ. of Miami v. Echarte, 618 So. 2d 189, 190 (Fla. 1993).
52
St. Mary’s Hospital, Inc. v. Phillipe, 769 So. 2d 961 (Fla. 2000).
53
Florida OIR, Medical Malpractice Financial Information, Closed Claim Database and Rule Filings Annual Report -
October 1, 2023, at p. 53. BILL: CS/SB 248 Page 10
Summary of Results for Territories with the Highest Rates
Physician State Rank State Territory Premium
Family
Practitioner
1 Florida Miami-Dade $ 52,173
10 Texas El Paso, Webb $ 9,185
Emergency
Room
1 Florida Miami-Dade $ 112,624
10 Texas El Paso, Webb $ 16,074
Orthopedist
1 Florida Miami-Dade $ 141,919
10 Texas El Paso, Webb $ 26,637
Obstetrician
1 Florida Miami-Dade $ 237,535
10 Texas El Paso, Webb $ 42,710
Summary of Results for Territories with the Lowest Rates
Physician State Rank State Territory Premium
Family
Practitioner
1 Florida remainder of FL $ 27,031
10 New York rural $ 4,243
Emergency
Room
1 Florida remainder of FL $ 57,755
10 Texas rural $ 8,374
Orthopedist
1 Florida remainder of FL $ 72,780
10 Texas rural $ 13,877
Obstetrician
1 New Jersey entire state $ 132,301
3 Florida remainder of FL $ 121,813
10 Texas rural $ 22,250
A private study confirmed this finding that medical professional liability insurance premiums in
Miami-Dade County appear to be the highest in the country.
54
Another study showing rates in all
50 states confirms that Miami-Dade County leads the nation in 2023 medical malpractice
insurance rates for Internal Medicine, General Surgery, and OB/GYN.
55
In 2015, the cost of defending a medical malpractice claim in Florida was 2.9 times the national
average and, in 2014, the average amount of a malpractice payment in Florida was $299,800,
compared to a national average of $242,000.
56
Supply of Healthcare Professionals
The United States is facing a health care workforce shortage.
57
Much of the state is considered a
Health Care Professional Shortage Area and/or a Medically Underserved Area.
58
Between 2019
and 2035, a report estimates that while physician supply will increase by 6 percent overall and by
3 to 4 percent for primary care, the demand for physician services in Florida will grow by 27
54
Guardado J., Prevalence of Medical Liability Premium Increases Unseen Since 2000s Continues for Fourth Year in a Row.
(American Medical Association; 2023), at p. 10. https://www.ama-assn.org/system/files/prp-mlm-premiums-2022.pdf.
55
Annual Rate Survey Issue, Medical Liability Monitor, vol. 48, no. 10 (October 2023).
56
Cunningham Group, Brief History and other important facts of medical malpractice insurance in Florida
https://www.cunninghamgroupins.com/medical-malpractice-insurance-by-state/florida
57
See, The Florida Senate, Bill Analysis and Fiscal Impact Statement for CS/SB 7016 (Jan. 16, 2024), pp. 2-3.
58
Id. at pp. 3-7. BILL: CS/SB 248 Page 11
percent.
59
Physician supply can be affected in part by the litigation climate of the state relative to
other states. One study found that limits on noneconomic damages “increase total physician
supply in the least densely-populated areas by 3-5 percent. This effect appears to be driven by a
relative increase in the supply of specialists by 10-12 percent, with no effect on the supply of
general practice physicians.”
60
Another similarly found a positive correlation between limits on
noneconomic damages and physician supply.
61
A 2010 study from Northwestern University found that
[h]alf of all graduating medical residents or fellows trained in Illinois leave the state
to practice medicine elsewhere, in large part due to the medical liability
environment in Illinois . . . . Many of these new graduates cite Illinois’ toxic
medical malpractice environment as a major reason. The Illinois Supreme Court’s
decision to lift the liability caps seems to send the message that the potential for
litigation supersedes the need for residents of Illinois to get needed health care.
62
Defensive Medicine
Defensive medicine refers to the practice of some medical providers who, fearing liability, order
unnecessary tests or procedures to avoid the appearance of committing medical negligence. This
drives up health care costs. Estimates of the cost of defensive medicine may be as high as 5 to 9
percent of all healthcare expenditures.
63
On the other hand, there is little evidence that a greater
malpractice risk improves patient outcomes.
64
Effectiveness of Limits on Noneconomic Damages in Medical Negligence Cases
In first enacting the limits in 2003, the Legislative findings included: “The Legislature finds that
the high cost of medical malpractice claims can be substantially alleviated by imposing a
limitation on noneconomic damages in medical malpractice actions.”
65
A 2019 study examining California’s long-standing limit on noneconomic damages in medical
negligence cases found that such limits reduce overall health care costs by reducing the incentive
to litigate weak claims, limiting the average size of liability awards, and reducing the incentive
for health care providers to order costly and medically unnecessary tests and procedures that do
not benefit the patient (commonly referred to as “defensive medicine”).
66
59
Florida Statewide and Regional Physician Workforce Analysis: 2019 to 2035: 2021 Update to Projections of Supply and
Demand, at V.
60
Matsa, Does Malpractice Liability Keep the Doctor Away? Evidence from Tort Reform Damage Caps, J.LegalStud.
2007:36(2). Note that general practice physicians have relatively low rates because they are rarely sued for malpractice.
61
Encinosa, Have State Caps on Malpractice Awards Increased the Supply of Physicians? (May 2005), Health Aff.
(Millwood). 2005;24:250‐258.
62
Marla Paul, Graduating Doctors Flee Illinois, Cite Malpractice Policy, NORTHWESTERN NOW (Nov. 11, 2020),
https://www.northwestern.edu/newscenter/stories/2010/11/doctors-flee-illinois.html.
63
Kessler, Do doctors practice defensive medicine? Q J Econ. 1996;111(2):353‐390
64
Bilimoria, Relationship between state malpractice environment and quality of health care in the United States. Jt Comm J
Qual Patient Saf. 2017;43(5):241‐250.
65
Section 1, ch. 2003-416, Laws of Fla.
66
Hamm, MICRA and Access to Health Care, Berkley Research Group (May 2019), at pp. 3-5. BILL: CS/SB 248 Page 12
III. Effect of Proposed Changes:
The bill expands the application of the Florida Wrongful Death Act by repealing exceptions that
prohibit certain parents and children of a deceased patient who dies due to medical negligence
from recovering noneconomic damages. The bill provides that, where a wrongful death occurs as
a result of medical negligence, a decedent’s adult children may recover noneconomic damages if
there is no surviving spouse and provides that the parents of an adult decedent may recover
noneconomic damages if there is no surviving spouse or surviving minor or adult children.
The bill amends the medical negligence law to enact limits on recovery of noneconomic damages
in a medical negligence action. The bill makes Legislative findings to support the policy behind
the bill:
WHEREAS, the Legislature finds that expanding the right to recover
noneconomic damages for wrongful death caused by medical negligence furthers
an important state interest of promoting accountability and adherence to the
applicable standards of care, and
WHEREAS, the Legislature further recognizes that the expansion of the right
to recover damages must be balanced against the important state interests of
minimizing increases in the cost of malpractice insurance and promoting the
availability of quality health care services, and
WHEREAS, the Legislature finds that limitations on noneconomic damages in
medical negligence cases further the critical state interest in promoting the
affordability and availability of health care services, and
WHEREAS, the Legislature finds that the cases of Estate of McCall v. United
States, 134 So. 3d 894 (Fla. 2014) and North Broward Hospital District v. Kalitan,
219 So. 3d 49 (Fla. 2017), which invalidated limits on noneconomic damages, were
decided contrary to legislative intent and prior case law interpreting the equal
protection clauses of the United States Constitution and the State Constitution, and
WHEREAS, the cases of Estate of McCall v. United States and North Broward
Hospital District v. Kalitan are inconsistent with the decisions of other courts
addressing limits on damages, and
WHEREAS, the Legislature finds that the state has the highest medical
malpractice insurance premiums in the nation and is in a sustained and continuing
crisis of affordability with respect to the price of medical malpractice insurance,
and
WHEREAS, the Legislature finds that having the highest medical malpractice
insurance premiums in the nation is causing physicians to practice medicine without
malpractice insurance, begin medical careers in other states, pursue opportunities
to practice in other states, abstain from performing high-risk procedures in this
state, or retire early from the practice of medicine, and BILL: CS/SB 248 Page 13
WHEREAS, the Legislature finds that the crisis of having the highest medical
malpractice insurance premiums in the nation threatens the quality and availability
of health care services for everyone in this state, and
WHEREAS, the Legislature finds that the rapidly growing population and the
changing demographics of this state make it imperative for the state to have a legal
environment that helps to attract and retain physicians, and
WHEREAS, the Legislature finds that there is an overpowering public
necessity to ensure that physicians practice medicine in this state, and
WHEREAS, the Legislature finds that there is also an overpowering public
necessity to enact policies that prevent medical malpractice insurance premiums
from being unaffordable and continuing at crisis levels, and
WHEREAS, the Legislature finds that limitations on noneconomic damages in
medical negligence cases further the public necessities of making quality health
care available to the residents of this state, ensuring that physicians practice
medicine in this state, and ensuring that those physicians have the opportunity to
purchase affordable medical malpractice insurance.
A medical negligence claim against a practitioner is limited by the bill as follows:
If the practitioner was providing emergency services and care to a patient who does not have
a then-existing patient-practitioner relationship with that practitioner, then noneconomic
damages may not exceed $150,000 per claimant.
If the practitioner was providing medical services to a Medicaid recipient outside of the
emergency services definition, noneconomic damages may not exceed $300,000 per
claimant, except that this limit does not apply if the claimant proves that the nonpractitioner
acted in a wrongful manner.
In all other instances, noneconomic damages against a practitioner may not exceed $500,000
per claimant.
A medical negligence claim against a nonpractitioner is limited by the bill as follows:
If the nonpractitioner was providing emergency services and care, noneconomic damages
may not exceed $750,000 per claimant.
If the nonpractitioner was a hospital or ambulatory surgical center and was providing medical
services to a Medicaid recipient outside of the emergency services definition, noneconomic
damages may not exceed $300,000 per claimant, except that this limit does not apply if the
claimant proves that the nonpractitioner acted in a wrongful manner.
In all other instances, noneconomic damages against a nonpractitioner may not exceed
$750,000 per claimant.
The bill directs the Office of Insurance Regulation (OIR) to require every medical malpractice
insurer and every medical malpractice insurer rate filing made with the OIR on or after January
1, 2025, to reflect the projected changes in claim frequency, claim severity, and loss adjustment
expenses, including for attorney fees, and any other change actuarially indicated, due to the BILL: CS/SB 248 Page 14
combined effect of the applicable provisions of this bill to ensure that rates for such insurance
accurately reflect the risk of providing such insurance. Additionally, the OIR must consider in its
review of rate filings made on or after January 1, 2025, the projected changes in costs associated
with the changes made by this bill. The OIR may develop methodology and data that incorporate
generally accepted actuarial techniques and standards to be used in its review of rate filings
governed by this section. The methodology must account for the expected losses, by class, of
insureds covered by medical malpractice insurance, provided the methodology is consistent with
generally accepted actuarial techniques and standards. Such methodology and data are not
intended to create a mandatory rate increase or decrease for all medical malpractice insurers, but
rather to ensure that the rates for such coverage are not inadequate, excessive, or unfairly
discriminatory and allow such insurers a reasonable rate of return.
The bill requires the Office of Program Policy Analysis and Government Accountability
(OPPAGA) to study the efficacy of the statutory caps imposed by the bill on noneconomic
damages in actions for personal injury or wrongful death arising from medical negligence. The
office may retain experts as are reasonably necessary to complete the study. The study must
include, but need not be limited to, an evaluation of the current, historical, and forecast data of
the following:
The availability, affordability, and volatility of professional liability insurance coverage for
medical negligence.
The per capita supply of licensed physicians in this state, including those in high-risk
specialties that may include, but are not limited to, internal medicine, general surgery, and
obstetrics and gynecology.
The extent to which physicians in this state are forced to practice medicine without
professional liability insurance, leave the state, refrain from practice in high-risk specialties,
or retire early from the practice of medicine.
Evidence of the relationship between the statutory caps and changes in the matters addressed
in the preceding.
By December 31, 2029, OPPAGA must submit a report to the Governor, the President of the
Senate, and the Speaker of the House of Representatives which includes findings from its study
and recommendations as to whether the statutory caps on noneconomic damages should be
retained, modified, or eliminated.
The bill takes effect July 1, 2024.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
The bill does not require counties or municipalities to spend funds or limit their authority
to raise revenue or receive state-shared revenues as specified in Article VII, s. 18 of the
Florida Constitution.
B. Public Records/Open Meetings Issues:
None. BILL: CS/SB 248 Page 15
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
Litigants in both McCall and Kalitan argued that the Access to Courts provision of the
State Constitution, as interpreted by the Kluger decision, was an alternative ground to
invalidate the limits on noneconomic damages. Florida’s Access to Courts clause reads:
“The courts shall be open to every person for redress of any injury, and justice shall be
administered without sale, denial or delay.”
67
In 1973, the Florida Supreme Court in
Kluger interpreted the Access to Courts clause to mean that:
where a right of access to the courts for redress for a particular injury has
been provided by statutory law predating the adoption of the Declaration of
Rights of the Constitution of the State of Florida, or where such right has
become a part of the common law of the State pursuant to [s. 2.01, F.S.],
the Legislature is without power to abolish such a right without providing a
reasonable alternative to protect the rights of the people of the State to
redress for injuries, unless the Legislature can show an overpowering public
necessity for the abolishment of such right, and no alternative method of
meeting such public necessity can be shown.
68
The Kluger opinion cites to no authority for this broad interpretation of the clause other
than an old legal encyclopedia.
69
This form of broad interpretation of an access to courts
clause has been criticized “[a]s a substantive limit on the legislature, the remedies
provision seems to lead to a type of judicial supremacy that is incompatible with
representative government.”
70
Nevertheless, the case is currently binding precedent, even if questionable. The
Legislative findings of the bill conform the bill to Kluger’s requirements by providing
that the current circumstances create an overpowering public necessity for limiting
noneconomic damages in medical negligence cases.
67
Article I, s. 21, FLA.CONST.
68
Kluger v. White, 281 So.2d 1, 3 (Fla. 1973).
69
The case cites to Corpus Juris Secundum, 16A C.J.S. Constitutional Law s 710, pp. 1218—1219. The current relevant CJS
article is at 16D C.J.S. Constitutional Law § 2415.
70
Bauman, Remedies Provisions in State Constitutions and the Proper Role of the State Courts, 26 WAKE FOREST L. REV.
237, 241 (1991). BILL: CS/SB 248 Page 16
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
The bill may provide for wrongful death recoveries by parties that are barred by current
law, and may correspondingly increase medical malpractice insurance premiums or
medical malpractice self-insurance costs of medical providers. Similarly, the availability
of damages for mental pain and suffering may provide a sufficient incentive for plaintiff
attorneys who work on a contingency-fee-basis to pursue more medical negligence
lawsuits.
The bill may limit noneconomic damages in the larger medical negligence lawsuits,
limiting recovery by those injured persons (and limiting related contingency-based
attorney fees) and lowering costs to insurers. It is anticipated that lowered medical
malpractice premiums will allow free market economic forces to lower malpractice
insurance rates which would ultimately benefit consumers.
71
C. Government Sector Impact:
The bill may create an indeterminate negative fiscal impact on the state and local
governments to the extent that the state or a local government operates or controls a
medical care facility. Any such claims, however, would be limited by the state’s
sovereign immunity limits.
72
The bill may create an indeterminate positive fiscal impact
on the state and local governments to the extent that the bill’s effects positively impact
malpractice premium rates and the supply of medical practitioners.
The bill will likely temporarily increase the workload of the state courts system.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
71
CRC Group, Medical Malpractice Claims Trends (2023)(“While it may seem that large verdicts paid out by companies
with deep pockets and high insurance limits balance the scales of justice, in actuality, massive settlements or judgments
increase hardship for many consumers and insureds. As loss ratios climb higher, insurance premiums generally rise because
carriers charge prices today that are intended to cover the claims they’ll pay tomorrow. So, as insurance companies pay for
massive awards, they balance the loss by narrowing coverage terms, expanding deductibles, and raising premiums until they
achieve a profit or leave the line of business, which can impact the availability of liability coverage. All of these costs are
ultimately borne by consumers and insureds who must find a way to pay for rate increases, bigger deductibles or retentions,
and assume uninsured liability risks.”).
72
Section 768.28, F.S. BILL: CS/SB 248 Page 17
VIII. Statutes Affected:
This bill substantially amends the following sections of the Florida Statutes: 400.023, 400.0235,
429.295, 766.118, and 768.21.
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
CS by Judiciary on January 22, 2024:
The CS removes from the bill the limited ability for certain parents of a deceased child or
for certain adult children of a deceased parent, to sue for wrongful death resulting from
medical negligence. The amendment, instead, broadly repeals the medical negligence
exceptions to the Wrongful Death Act, thereby allowing a decedent’s adult children or
parents of a deceased adult child to recover damages for their pain and suffering in a
wrongful death action related to medical negligence where such recovery is otherwise
allowed pursuant to the Wrongful Death Act. The CS also removes a provision applicable
to all wrongful death actions that if a death is caused by medical negligence, the negligent
health care provider must reimburse the estate for medical bills paid and must forgo
collection of any outstanding balance.
In addition to repealing the medical negligence exceptions, the CS adds limits on non-
economic damages that apply to all actions for medical negligence, and adds
requirements for future studies examining the effects of the limitations on noneconomic
damages created by the bill.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.