A new prescription for an old headache: calculating judgments in medical malpractice actions under F.S. §766.118 (2003).

• Author: Parenti, Gail Leverett
• Position: Florida

Understanding how final judgments are calculated is crucial to the ability to evaluate a case at any stage of the litigation, for plaintiffs and defendants alike. The task of calculating the amounts owed by defendants following trials involving the comparative fault doctrine (1) has become increasingly perplexing over the course of the past 10 years, particularly as Florida's courts have struggled with issues involving the interplay between the Florida Supreme Court's ruling in Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993), and the mechanism of setoffs. (2) That task was not made any easier by the legislature's most recent medical malpractice reform measures.

In 2003, Florida's legislature undertook a comprehensive effort to reform the state's medical malpractice laws, with the goal of reducing liability insurance premiums for health care providers who were facing skyrocketing insurance costs. (3) The controversial centerpiece of the medical malpractice reform package is F.S. [section]766.118 (2003), which imposes a cap on the amount of noneconomic damages which may be recovered in medical negligence actions. (4) Although inspired by the plan adopted by the Texas Legislature in the summer of 2003, (5) Florida's cap is a unique--and uniquely political--approach to limiting noneconomic damages in an effort to reduce overall insurance payouts, and thereby reduce insurance premiums.

The essential features of [section]766.118 include limitations on noneconomic damages separately applicable to "practitioners" and "nonpractitioners"; the ability to "pierce" the cap in certain instances; a lower cap for practitioners providing emergency medical services; and an internal "setoff" mechanism which provides the methodology for applying the cap in cases involving comparative fault and/or prior settlements. Each of these features will require courts and litigants to rethink fundamental notions about the way judgments have been calculated and entered against defendants in medical malpractice actions.

The first step in the analysis is to determine whether each defendant is a "practitioner" or a "nonpractitioner." The definition of the term "practitioner" (6) is the touchstone for determining which limitation on noneconomic damages applies to a given health care provider. (7) If the health care provider falls within the definition of "practitioner," the noneconomic damages recoverable from that defendant are subject to the limitations set forth in subsection (2) of the statute; generally, $500,000 per claimant, or $1 million in the aggregate. (8) If, however, the health care provider does not satisfy the definition of a "practitioner," the noneconomic damages recoverable from that defendant are subject to the higher limitations set forth in subsection (3) of the statute: $750,000 per claimant, or $1.5 million aggregate.

The definition of "practitioner" includes health care providers licensed under various chapters, (9) as wed as their employees and affiliated business entities. Additionally, the term 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." (10) Logically, then "nonpractitioners" would generally include persons and entities outside the stream of vicarious liability for a "practitioner." However, "nonpractitioners" may also include a person or entity found to be vicariously liable for a "practitioner," assuming that is not the sole basis of liability.

The statute provides two avenues of "piercing," both of which trigger entitlement to claim the aggregate amount in each category in certain narrowly proscribed circumstances. In cases where medical negligence has caused either death or permanent vegetative state, the total...