Medical malpractice caps move from the legislature to the courts: will they survive?

• Author: Carlin, Tracy S.

In 2003, the Florida Legislature imposed statutory caps on noneconomic damages in medical malpractice cases. See F.S. [section] 766.118 (2003). Although the legislature attempted to make findings intended to ensure that the caps would survive constitutional scrutiny, the caps may nevertheless be vulnerable to a constitutional challenge pursuant to the access to courts provision contained in Art. I, [section] 21 of the Florida Constitution. (1)

Art. I, [section] 21 reads: "SECTION 21. Access to courts.--The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay."

Because this provision is contained within the Declaration of Rights, it creates a fundamental right. (2) Legislation that intrudes on a fundamental right is presumptively invalid. (3) Thus, the question is whether the statutory caps on noneconomic damages set forth in [section] 766.118 intrude upon the fundamental right of access to courts and, if so, whether the presumption of invalidity can be overcome.

The constitutionality of statutory caps on noneconomic damages was previously addressed by the Supreme Court of Florida in Smith v. Department of Insurance, 507 So. 2d 1080 (Fla. 1987). In the 1986 Tort Reform and Insurance Act, the legislature imposed a $450,000 cap on noneconomic damages. (4) The legislature indicated that it created the cap to abate a commercial liability crisis it found existed at the time. (5)

Nevertheless, the court concluded that the cap violated the access to courts provision of the Florida Constitution. In so doing, the court reasoned that it was uncontroverted that a right to sue on and recover noneconomic damages of any amount existed at the time the current Florida Constitution was adopted. (6) The court stated that "[t]he right to redress of any injury does not draw a distinction between economic and noneconomic damages nor does Art. I, [section] 21 contain any language that would support the proposition that the right is limited, or may be limited, to suits above or below any given figure." (7) Thus, the court concluded that its decision in Kluger v. White, 281 So. 2d 1 (Fla. 1973), was controlling. (8)

In Kluger, the court considered the constitutionality of a statute that eliminated tort actions for automobile accidents seeking damages of less than $550. The Kluger court stated:

[W]here 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 ..., 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. (9)

The court responded that there was no relevant distinction between the issue in Kluger and the issue in Smith. In Kluger, the legislature tried to limit the right of redress at the bottom of the damages spectrum, (10) whereas in Smith, it tried to restrict the top. The Supreme Court held that both restrictions were impermissible unless one of the Kluger exceptions was met. Consequently, the Smith court looked to whether 1) the statute provided a reasonable alternative remedy or commensurate benefit or 2) the legislature demonstrated that there was an overpowering public necessity for the abolishment of the right and no alternative method of meeting that public necessity. (11)

The court concluded that the benefits of the statutory $450,000 cap on noneconomic damages were not commensurate; they ran in only one direction. The court reasoned that a medical patient received no benefit from the cap because it was unlikely that a patient would be negligent toward his doctor. The court also concluded that the legislature did not create an alternative remedy and that it was irrelevant to the access to courts analysis that the legislature did not totally abolish the cause of action. (12) The court stated:

Access to courts is granted for the purpose of redressing injuries. A plaintiff who receives a jury verdict for, e.g., $1,000,000, has not received a constitutional redress of injuries if the legislature statutorily, and arbitrarily, caps the recovery at $450,000. Nor, we add, because the jury verdict is being arbitrarily capped, is the plaintiff receiving the constitutional benefit of a jury trial as we have heretofore understood that right. Further, if the legislature may constitutionally cap recovery at $450,000 there is no discernible reason why it could not cap the recovery at some other figure, perhaps $50,000, or $1,000, or even $1. None of these caps would "totally" abolish the right of access to the courts.... [I]f it were permissible to restrict the constitutional right by legislative action, without meeting the conditions set forth in Kluger, the constitutional right of access to the courts for redress of injuries would be subordinated to, and a creature of, legislative grace or, as Mr. Smith puts it, "majoritarian whim." There are political systems where constitutional rights are subordinated to the power of the executive or legislative branches, but ours is not such a system. (13)

As to the alternative question, the court noted that there was no argument or showing that the cap was the only way to address the public necessity. (14)

The majority further concluded that it was irrelevant whether there was a rational basis for the cap. (15) To apply a rational basis analysis would be to overlook the fact that the issue is one of a constitutional right that cannot be restricted merely because the legislature deemed it rational to do so. "Rationality only becomes relevant if the legislature provides an alternative remedy or abrogates or restricts the right based on a showing of overpowering public necessity and that no alternative method of meeting that necessity exists." Therefore, because the legislature did not provide an alternative remedy or commensurate benefit and because there was no argument or showing that the cap was the only way to address the public necessity, the Smith court held that the cap was unconstitutional. (16)

In contrast, in University of Miami v...