McCall v. USA Initial Plaintiff's Brief by Stuart Ratzan

Case No. SC11-1148 IN THE SUPREME COURT OF FLORIDA ____________________ ESTATE OF MICHELLE EVETTE McCALL, by and through co-personal representatives EDWARD M. McCALL, II, MARGARITA F. McCALL, and JASON WALLEY, Plaintiffs-Appellants, v. UNITED STATES OF AMERICA, Defendant-Appellee. ________________________________ On Discretionary Review from the United States Court of Appeals for the Eleventh Circuit Case No. 09-16375J __________________________________________________________________ INITIAL BRIEF FOR PLAINTIFFS-APPELLANTS __________________________________________________________________ Henry T. Courtney Sara Courtney-Baigorri COURTNEY LAW FIRM The Merrick Plaza 2199 Ponce de Leon Blvd., Suite 301 Coral Gables, FL 33134 Telephone: (305) 358-1057 Stephen S. Poche THE LAW OFFICE OF STEPHEN S. POCHE, P.A. 1270 N. Eglin Parkway, Suite C-14 Shalimar, FL 32579 Telephone: (850) 651-4466

Robert S. Peck, admitted pro hac vice Valerie M. Nannery CENTER FOR CONSTITUTIONAL LITIGATION, P.C. 777 6th Street, N.W., Suite 520 Washington, DC 20001 Telephone: (202) 944-2874 Facsimile: (202) 965-0920 robert.peck@cclfirm.com Counsel for Plaintiffs-Appellants

TABLE OF CONTENTS TABLE OF CONTENTS........................................................................................... i TABLE OF AUTHORITIES ................................................................................... iii STATEMENT OF THE CASE AND OF THE FACTS ...........................................1 SUMMARY OF ARGUMENT .................................................................................5 ARGUMENT .............................................................................................................7 I.

THE CAP ON NONECONOMIC DAMAGES VIOLATES PLAINTIFFS’ RIGHT TO EQUAL PROTECTION UNDER THE FLORIDA CONSTITUTION..........................................................................7 A.

Section 766.118 Violates Equal Protection Because It Arbitrarily Burdens Multiple Claimants in Medical Negligence Cases Differently...................................................................................8

Section 766.118 Fails Strict Scrutiny..................................................11

II.

There is no compelling governmental interest..........................13

The cap is not narrowly tailored nor necessary to serve the State’s purported purpose....................................................16

The Cap Cannot Even Meet the Rational-Basis Test..........................18 1.

There was no factual basis to assume capping noneconomic damages will reduce malpractice insurance premiums...................................................................................21

There was no rational basis for the Florida Legislature to expect that insurers would pass savings to doctors. .................24

It is irrational and arbitrary to impose the cost of the purported public benefit on the most seriously injured victims of medical negligence. .................................................28

THE LIMIT ON NONECONOMIC DAMAGES VIOLATES THE FUNDAMENTAL RIGHT OF ACCESS TO THE COURTS .....................29 i

III.

THE CAP VIOLATES THE FUNDAMENTAL RIGHT TO TRIAL BY JURY.......................................................................................................38

IV.

THE LIMIT ON NONECONOMIC DAMAGES VIOLATES SEPARATION OF POWERS .......................................................................45

CONCLUSION........................................................................................................50 CERTIFICATE OF SERVICE ................................................................................52 CERTIFICATE OF COMPLIANCE.......................................................................53

TABLE OF AUTHORITIES Cases Allred v. Chittenden Pool Supply, Inc., 298 So. 2d 361 (Fla. 1974) .......................47 Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 691 S.E.2d 218 (Ga. 2010) .......43 B.S. v. State, 862 So. 2d 15 (Fla. 2d DCA 2003).....................................................12 Best v. Taylor Machine Works, 689 N.E.2d 1057 (Ill. 1997) ........................... 29, 48 Blakely v. Washington, 542 U.S. 296 (2004)...........................................................39 Born v. Goldstein, 450 So. 2d 262 (Fla. 5th DCA 1984) ........................................49 Braddock v. Seaboard Air Line Railroad Co., 80 So. 2d 662 (Fla. 1955) ..............40 Bush v. Schiavo, 885 So. 2d 321 (Fla. 2004) .............................................. 46, 47, 50 Carson v. Maurer, 424 A.2d 825 (N.H. 1980), overruled on other grounds by, Community Resource for Justice, Inc. v. City of Manchester, 917 A.2d 707 (N.H. 2007) ....................................................................................28 Children A, B, C, D, E, & F, 589 So. 2d 260 (Fla. 1991)........................................46 Christopher v. Harbury, 536 U.S. 403 (2002).........................................................30 City of Boerne v. Flores, 521 U.S. 507 (1997) ........................................................47 City of Tampa v. State ex rel. Evans, 19 So. 2d 697 (Fla. 1944).............................20 Community Resource for Justice, Inc. v. City of Manchester, 917 A.2d 707 (N.H. 2007)....................................................................................................28 Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424 (2001).............................................................................................................44 Cox v. Florida Department of Health & Rehabilitive Services, 656 So. 2d 902 (Fla. 1995)...............................................................................................20 Daniels v. Weiss, 385 So. 2d 661 (Fla. 3d DCA 1980) ...........................................42 iii

De Ayala v. Florida Farm Bureau Casualty Insurance Co., 543 So. 2d 204 (Fla. 1989)........................................................................................................7 Department of Insurance v. Teachers Insurance Co., 404 So. 2d 735 (Fla. 1981) ..............................................................................................................25 Department of Revenue v. Printing House, 644 So. 2d 498 (Fla. 1994) .................39 Dimick v. Schiedt, 293 U.S. 474 (1935)...................................................................41 District of Columbia v. Heller, 554 U.S. 570 (2008) ..............................................36 Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006) .....................................40 Estate of McCall v. United States, 642 F.3d 944 (11th Cir. 2011)..........................19 Estate of McCall v. United States, 663 F. Supp. 2d 1276 (N.D. Fla. 2009).... passim FCC v. Beach Communications, Inc., 508 U.S. 307 (1993)....................................19 Feltner v. Columbia Pictures Television, 523 U.S. 340 (1998) ................. 40, 44, 45 Ferdon ex rel. Petrucelli v. Wisconsin Patients Compensation Fund, 701 N.W.2d 440 (Wis. 2005) ........................................................................ 14, 23 Flint River Steamboat Co. v. Roberts, 2 Fla. 102 (1848) ........................................39 Fox v. City of Pompano Beach, 984 So. 2d 664 (Fla. 4th DCA 2008)....................12 Franklin v. Mazda Motor Corp., 704 F. Supp. 1325 (D. Md. 1989).......................44 G.B.B. Investments, Inc. v. Hinterkopf, 343 So. 2d 899 (Fla. 3d DCA 1977).........32 Gammon v. Cobb, 335 So. 2d 261 (Fla. 1976) ........................................................10 German Alliance Insurance Co. v. Lewis, 233 U.S. 389 (1914) .............................16 Gresham v. Smothers Transfer Co., 23 P.3d 333 (Or. 2001) ..................................31 Haag v. State, 591 So. 2d 614 (Fla. 1992)...............................................................12 Heath v. First National Bank, 213 So. 2d 883 (Fla. 1st DCA 1968).......................49 iv

Hechtman v. Nations Title Insurance of New York, 840 So. 2d 993 (Fla. 2003) ..............................................................................................................18 Hetzel v. Prince William County, 523 U.S. 208 (1998)...........................................41 In re Estate of Barton, 631 So. 2d 315 (Fla. 2d DCA 1994) .....................................9 In re Forfeiture of 1978 Chevrolet Van, 493 So. 2d 433 (Fla. 1986)............... 39, 41 In re Matter of Adoption of X.X.G., 45 So. 3d 79 (Fla. 2010) .................................20 Kennon v. Gilmer, 131 U.S. 22 (1889) ............................................................. 41, 49 Klotz v. St. Anthonyâ&#x20AC;&#x2122;s Medical Center, 311 S.W.3d 752 (Mo. 2010) .............. 29, 43 Kluger v. White, 281 So. 2d 1 (Fla. 1973) ....................................................... passim Lakin v. Senco Products, Inc., 987 P.2d 463 (Or. 1999) .........................................43 Lane v. Chiles, 698 So. 2d 260 (Fla. 1997) .............................................................23 Lebron v. Gottlieb Memorial Hospital, 930 N.E.2d 895 (Ill. 2010)........................48 Lewis v. Casey, 518 U.S. 343 (1996).......................................................................30 Lopez v. Ernie Haire Ford, Inc., 974 So. 2d 517 (Fla. 2d DCA 2008) ...................43 Lucas v. United States, 757 S.W.2d 687 (Tex. 1988)..............................................27 Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) ...............................................32 Mercury Motors Express, Inc. v. Smith, 393 So. 2d 545 (Fla. 1981) ......................32 Miller v. James, 187 So. 2d 901 (Fla. 2d DCA 1966) .............................................40 Mitchell v. Moore, 786 So. 2d 521 (Fla. 2001)........................................... 12, 33, 37 Moore v. Mobile Infirmary Association, 592 So. 2d 156 (Ala. 1991).....................43 Moore v. Thompson, 126 So. 2d 543 (Fla. 1960) ....................................................20

Nationwide Mutual Fire Insurance Co. v. Pinnacle Medical, 753 So. 2d 55 (Fla. 2000)......................................................................................................28 Nationwide Mutual Insurance Co. v. Williams, 188 So. 2d 368 (Fla. 1st DCA 1966).....................................................................................................17 North Florida Womenâ&#x20AC;&#x2122;s Health & Counseling Services, Inc. v. State, 866 So. 2d 612 (Fla. 2003).................................................................................. passim Pacific Mutual Life Insurance Co. v. Haslip, 499 U.S. 1 (1991) ............................31 Payton v. New York, 445 U.S. 573 (1980)...............................................................31 Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922) .........................................37 Perenic v. Castilli, 353 So. 2d 1190 (Fla. 4th DCA 1977)......................................39 Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995) .............................................47 Ponder v. Graham, 4 Fla. 23 (1851)........................................................................48 Psychiatric Associates v. Siegel, 610 So. 2d 419 (Fla. 1992), receded from on other grounds, Agency for Health Care Administration v. Associated Industries of Florida, Inc., 678 So. 2d 1239 (Fla. 1996) ............30 Rhyne v. K-Mart Corp., 594 S.E.2d 1 (N.C. 2004) .................................................43 Rosenshein v. Florida Department of Children & Families, 971 So. 2d 837 (Fla. 3d DCA 2007) .......................................................................................37 Sable Communication of California, Inc. v. FCC, 492 U.S. 115 (1989).... 16, 36, 37 Samples v. Florida Birth-Related Neurological, 40 So. 3d 18 (Fla. 5th DCA 2010) ................................................................................................................9 Samples v. Florida Birth-Related Neurological, No. SC10-1295 (submitted May 5, 2011)....................................................................................................9 Simmons v. State, 36 So. 2d 207 (Fla. 1948) ...........................................................46 Smith v. Department of Insurance, 507 So. 2d 1080 (Fla. 1987) .................... passim

Sofie v. Fibreboard Corp., 771 P.2d 711 (Wash. 1989)................................... 43, 48 St. Louis, Iron Mountain & Southern Railway Co. v. Craft, 237 U.S. 648 (1915), cited with approval in Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424 (2001) .........................................................40 St. Maryâ&#x20AC;&#x2122;s Hospital, Inc. v. Phillipe, 769 So. 2d 961 (Fla. 2000) ................... passim State v. Cotton, 769 So. 2d 345(Fla. 2000)..............................................................46 State v. J.P., 907 So. 2d 1101 (Fla. 2004) ........................................................ 12, 29 States v. Klein, 80 U.S. 128 (1871)..........................................................................50 Townsend v. Hughes, 86 Eng. Rep. 994 (C.P. 1677)...............................................40 Trustees Internal Improvement Fund v. Bailey, 10 Fla. 238 (1863) .......................46 Tull v. United States, 481 U.S. 412 (1987) ....................................................... 44, 45 United States v. Morrison, 529 U.S. 598 (2000) .....................................................33 United States v. Sioux Nation of Indians, 448 U.S. 371(1980) ...............................47 University of Miami v. Echarte, 618 So. 2d 189 (Fla. 1993), cert. denied, 510 U.S. 915 (1993).......................................................................... 33, 34, 43 Vildibill v. Johnson, 492 So. 2d 1047 (Fla. 1986) ...................................................19 Wackenhut Corp. v. Canty, 359 So. 2d 430 (Fla. 1978) ..........................................49 Warren v. State Farm Mutual Automobile Insurance Co., 899 So. 2d 1090 (Fla. 2005)........................................................................................................7 Westgate Miami Beach, Ltd. v. Newport Operating Corp., 55 So. 3d 567 (Fla. 2010)......................................................................................................36 Wiggins v. Williams, 18 So. 859 (1896) ........................................................... 41, 42 Zeier v. Zimmer, Inc., 152 P.3d 861 (Okla. 2006) ...................................................25

vii

Constitutional Provisions Art. I, ยง2, Fla. Const........................................................................................ 5, 7, 11 Art. I, ยง21, Fla. Const.......................................................................................... 5, 29 Art. I, ยง22, Fla. Const.................................................................................... 5, 38, 42 Art. II, ยง3, Fla. Const. ......................................................................................... 5, 45 Art. V, ยง1, Fla. Const. ................................................................................................5 Statutes ยง766.118, Fla. Stat. .......................................................................................... passim ยง766.118(2), Fla. Stat.......................................................................................... 8, 47 ยง766.118(2)(b)(1), Fla. Stat. ....................................................................................42 ยง768.21(1), Fla. Stat............................................................................................ 9, 10 ยง768.21(3), Fla. Stat...................................................................................................9 28 U.S.C. ยงยง1346(b), 2671-80...................................................................................3 Other Authorities Angoff, Jay, Insurance Against Competition: How the McCarran-Ferguson Act Raises Prices and Profits in the Property Casualty Insurance Industry, 5 Yale J. on Reg. 397 (1988)..........................................................26 Baker, Tom, Medical Malpractice and the Insurance Underwriting Cycle, 54 DePaul L. Rev. 393 (2005).......................................................................26 Baker, Tom, The Medical Malpractice Myth (2005)...............................................27 Black, Bernard et al., Stability, Not Crisis: Medical Malpractice Claim Outcomes in Texas, 1988-2002, 2 J. Empirical Legal Stud. 207 (July 2005) ..............................................................................................................27 Blackstone, William, Commentaries on the Laws of England (1765) ....................31 viii

Finkelstein, Mark A., California Civil Section 3333.2 Revisited: Has It Done Its Job?, 67 S. Cal. L. Rev. 1609 (1994) .......................................................22 Fla. Sess. Law Serv. Ch. 2003-416 (C.S.S.B. 2-D) .................................... 13, 21, 34 Florida House Select Committee on Medical Liability Insurance, Report, Executive Summary (Mar. 2003) ..................................................................17 Foundation for Taxpayer and Consumer Rights, Insurance Regulation, Not Malpractice Caps, Stabilize Doctors’ Premiums (Jan. 16, 2003).................22 Friesen, Jennifer, State Constitutional Law (1996) .................................................31 Governor’s Select Task Force on Healthcare Professional Liability Insurance (Jan. 29, 2003) ........................................................... 15, 18, 21, 22 Hearing on Medical Malpractice Before Senate Judiciary Committee (July 14, 2003) (statement of Robert White, President, First Professional Insurance Co.)................................................................................................23 Howard, A.E. Dick, The Road from Runnymede (1968) .........................................30 Koch, Jr., Hon. William C., Reopening Tennessee’s Open Courts Clause: A Historical Reconsideration of Article I, Section 17 of the Tennessee Constitution, 27 U. Mem. L. Rev. 333 (1997) ..............................................30 Kossow, Todd M., Fein v. Permanente Medical Group: Future Trends in Damage Limitation Adjudication, 80 Nw. U. L. Rev. 1643 (1986)..............22 Letter from J. Alex Villalobos, Chair of the Senate Judiciary Committee, to Senate President James E. “Jim” King, Journal of the Florida Senate, 2003 Special Session D, No. 2 (Aug. 13, 2003)............................................17 McKay, Robert B., Rethinking the Tort Liability System: A Report from the ABA Action Commission, 32 Vill. L. Rev. 1219 (1987)................................26 McKechnie, William S., Magna Carta, A Commentary on the Great Charter of King John (2d ed. 1914) ............................................................................30 Schuman, David, Oregon’s Remedy Guarantee: Article I, Section 10 of the Oregon Constitution, 65 Or. L. Rev. 35 (1986) ............................................30

Singer, Norman J., Sutherland Statutory Construction (6th ed. 2000) ...................15 Struve, Catherine T., Doctors, The Adversary System, and Procedural Reform in Medical Liability Litigation, 72 Fordham L. Rev. 943 (2004).............................................................................................................14 The Bureau of Labor Statistics, Consumer Price Index for All Urban Consumers 1992-2002 ...................................................................................24 The Declaration of Independence (U.S. 1776) ........................................................38 The Federalist No. 47 (James Madison) (Clinton Rossiter ed., 1961) ....................50 Transcript of Florida Senate Judiciary Committee Debate, Session D (Aug. 13, 2003) ........................................................................................................15 U.S. Department of Justice, Bureau of Justice Statistics, NCJ 216339, Medical Malpractice Insurance Claims in Seven States 2000-2004 (Mar. 2007) ............................................................................................. 14, 24 U.S. General Accounting Office, Medical Malpractice: Six State Case Studies Show Claims and Insurance Costs Still Rise Despite Reforms, â&#x20AC;&#x153;Case Study on California,â&#x20AC;? (Dec. 1986) ......................................................22 U.S. General Accounting Office, No. GAO-03-702, Medical Malpractice Insurance: Multiple Factors Have Contributed to Increased Premium Rates (Jun. 2003) ...........................................................................................16 U.S. General Accounting Office, No. GAO-04-124, Physician Workforce: Physician Supply Increased in Metropolitan and Nonmetropolitan Areas but Geographic Disparities Persisted (Oct. 2003) ...................... 14, 35 Vidmar, Neil, et al., Million Dollar Medical Malpractice Cases in Florida: Post-Verdict and Pre-Suit Settlements, 59 Vand. L. Rev. 1343 (2006)........27 Weiss, Martin D., et al., Medical Malpractice Caps: The Impact of NonEconomic Damage Caps on Physician Premiums, Claims Payout Levels, and Availability of Coverage (rev ed. June 3, 2003).........................23

Rules Fla. R. App. P. 9.150..................................................................................................4

STATEMENT OF THE CASE AND OF THE FACTS In February 2006, Michelle McCall was a bright, beautiful, and healthy 20year-old woman receiving pre-natal care and delivery services for her pregnancy at the Eglin Air Force Base clinic through the Air Force’s family practice department. Estate of McCall v. United States, 663 F. Supp. 2d 1276, 1283 (N.D. Fla. 2009). Due to medical negligence, she tragically “bled to death in the presence of all medical staff who were attending her,” later that month. Id. at 1291. That tragic event was set in motion when, at a routine pre-natal checkup in mid-February 2006, Michelle’s blood pressure was high. She was instructed to collect urine samples and return to the lab five days later. Id. at 1284. On February 21, 2006, tests revealed Michelle had severe preeclampsia, a serious condition characterized by elevated blood pressure and an abnormal amount of protein in the urine, requiring immediate hospitalization for the induction of labor. Id. The Air Force hospital was temporarily unavailable for obstetric and delivery services, so Michelle was admitted to the Fort Walton Beach Medical Center, where the Air Force maintained its own nursing station, delivery rooms, and on-call room for its medical personnel. Id. at 1285 n.4. Michelle was admitted at 5:00 p.m. on February 21, 2006 and given Pitocin to induce labor. After almost 24 hours of labor, the doctors decided to perform a C-Section, but discovered the only doctor capable of cesarean delivery was occupied with another surgery. Id. at

1284-85. While awaiting that doctor and choosing not to call an alternate obstetrician, Michelle’s labor resumed, and she was allowed to continue with vaginal rather than caesarean delivery, even after the obstetrician arrived. Id. at 1285. Michelle’s son, W.W., was born at 1:25 a.m. on February 23, 2006, by natural birth. Thirty-five minutes later, when the placenta still had not delivered, two doctors tried unsuccessfully to remove the placenta manually. Id. Michelle’s blood pressure dropped precipitously and continued to drop rapidly. Her dangerously low blood pressure went unnoticed for hours. Michelle lost copious amounts of blood, which also went unnoticed by the doctors and unreported by the nurses attending her. Id. at 1285-86. The obstetrician returned to the medical center more than an hour after delivery of W.W., manually removed the placenta, and then undertook repairs of the serious lacerations in Michelle’s vaginal wall. Id. at 1285. After he finished these procedures at 3:50 a.m., he ordered a blood count and, if needed, a transfusion to compensate for the blood Michelle had lost during the procedures. The blood count was not scheduled for another forty minutes, and no one attempted to perform the blood count for yet another forty minutes after that. No one monitored Michelle’s condition between 4:00 a.m. and 5:00 a.m. When the

nurse finally went to draw Michelle’s blood to perform the blood count after 5:00 a.m., Michelle was unresponsive. Id. at 1286. Michelle was intubated and a transfusion of blood was begun at 5:30 a.m., but it was too late. Id. She never regained consciousness and was removed from life support a few days later, dying on February 27, 2006. The death certificate identified the events leading to death: severe preeclampsia, vaginal delivery, hypovolemic shock, and anoxic enoephalopathy. Id. Michelle McCall’s estate, her parents, her son, and her son’s father filed suit against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§1346(b), 2671-80, in November 2007, seeking damages for the medical negligence that resulted in her death. After a bench trial, the federal district court held Defendant liable and determined that fair compensation would amount to nearly $3 million, which included $2 million in noneconomic damages. Of the noneconomic damages, $500,000 was designated as compensation for W.W.’s loss of parental companionship, instruction, and guidance and for his mental pain and suffering. 663 F. Supp. 2d at 1294. An additional $750,000 each was designated as compensation for each of Michelle’s parents for their pain and suffering. Id. The federal court then reduced Plaintiffs’ noneconomic damages to $1 million total pursuant to §766.118, Florida Statutes. Id. at 1294-95, 1307-08. The

court rejected Plaintiffs’ argument that both the practitioner and nonpractitioner caps should be applied to the case because the court said no “specific nonpractitioner” was “singled out” as negligent. Id. at 1294. The court also rejected Plaintiffs’ constitutional arguments, after declaring that it “hesitate[d] to proceed” as this case presented “a novel question of state law that the Supreme Court of Florida has not yet addressed.” Id. at 1296 n.34. The court entered judgment limiting Plaintiffs to an aggregate award of $1 million in noneconomic damages, along with nearly $1 million in economic damages on September 30, 2009. The noneconomic damages were proportionally divided among the eligible survivors. Id. at 1307-08. On October 30, 2009, the district court denied Plaintiffs’ motion to alter or amend the final judgment. Plaintiffs appealed, challenging both the federal district court’s ruling on the application and constitutionality of the cap. On April 6, 2010, Plaintiffs filed a Motion to Certify Questions of State Law to this Court under the procedure established in Rule 9.150, Florida Rules of Appellate Procedure. After a hearing on both the Motion to Certify and the merits of the appeal, the Eleventh Circuit issued an opinion, finding the application argument had not been fully raised below and rejecting Plaintiffs’ federal constitutional arguments. The Eleventh Circuit then certified the following questions of Florida constitutional law to this Court:

(1) Does the statutory cap on noneconomic damages, §766.118, Florida Statutes violate the right to equal protection under Article I, Section 2 of the Florida Constitution? (2) Does the statutory cap on noneconomic damages, §766.118, Florida Statutes violate the right of access to the courts under Article I, Section 21 of the Florida Constitution? (3) Does the statutory cap on noneconomic damages, §766.118, Florida Statutes violate the right to trial by jury under Article I, Section 22 of the Florida Constitution? (4) Does the statutory cap on noneconomic damages, §766.118, Florida Statutes violate the separation of powers guaranteed by Article II, Section 3 and Article V, Section 1 of the Florida Constitution? SUMMARY OF ARGUMENT Florida’s cap on noneconomic damages irrationally treats cases with multiple claimants differently and less favorably than those with a single claimant, thereby exacting an irrational cost when, as here, the victim of medical malpractice has a large family adversely affected by the injury. In St. Mary’s Hospital, Inc. v. Phillipe, 769 So. 2d 961 (Fla. 2000), this Court stated that such a cap bears no rational relationship to alleviating any financial crisis in the medical liability industry, “offends the fundamental notion of equal justice,” and “can only be

described as purely arbitrary and unrelated to any state interest.” Id. at 972. The equal protection violation is thus palpable. Moreover, because the cap implicates a claimant’s fundamental rights of access to the courts and trial by jury, the violation should be evaluated under strict scrutiny, a test it clearly fails. Section 766.118 treats medical malpractice plaintiffs with the most serious injuries, injuries that are sufficient to surmount the arbitrary and inflexible cap, less favorably than those whose injuries are less serious and who still qualify to receive the full value of their compensatory loss. A host of alternative means of addressing insurance costs and the availability of health care, including insurance regulation and tax incentives, were available to the Legislature without impinging on the rights of severely injured patients. Even if the more deferential rational-basis standard were applied, there is no proper justification or fit to the Legislature’s solution to its alleged health-care “crisis,” as it was built on speculation when available facts rebutted its selected solution. The cap also cannot be reconciled with the Florida Constitution’s guarantees of access to the courts and the right to a jury trial. In Smith v. Department of Insurance, 507 So. 2d 1080 (Fla. 1987), this Court struck down a prior indistinguishable noneconomic cap on the basis of those two guarantees. This Court reasoned that a plaintiff who receives a verdict of one amount “has not

received a constitutional redress of injuries if the Legislature statutorily, and arbitrarily, caps the recovery.” Id. at 1088-89. It further held that the same plaintiff has not received the “constitutional benefit of a jury trial as we have heretofore understood that right” when a “jury verdict is being arbitrarily capped.” Id. The cap further violates separation of powers by taking the judiciary’s inherent power of remittitur away and by requiring judges to issue a one-size-fitsall judgment that cannot be reconciled with the trial record. The Florida Constitution prohibits such legislative interference with judicial power in commonlaw civil actions. ARGUMENT I.

THE CAP ON NONECONOMIC DAMAGES VIOLATES PLAINTIFFS’ RIGHT TO EQUAL PROTECTION UNDER THE FLORIDA CONSTITUTION The equal-protection guarantee, article I, section 2 of the Florida

Constitution, assures that all similarly situated persons be treated alike. De Ayala v. Florida Farm Bureau Cas. Ins. Co., 543 So. 2d 204 (Fla. 1989). Thus, everyone “stand[s] before the law on equal terms with, to enjoy the same rights as belong to, and to bear the same burden as are imposed upon others in a like situation.” Warren v. State Farm Mut. Auto. Ins. Co., 899 So. 2d 1090, 1105 (Fla. 2005)

(quotation and citation omitted). Section 766.118(2)1 plainly violates this guarantee by imposing different and additional burdens on some injured parties when an act of medical negligence gives rise to multiple claims, as well when the negligent act causes particularly severe injuries. In both instances, medical-malpractice claimants do not enjoy the same rights to full compensation and do not bear the same burden by virtue of arbitrarily diminished compensation for their legally cognizable claims. A.

Section 766.118 Violates Equal Protection Because It Arbitrarily Burdens Multiple Claimants in Medical Negligence Cases Differently

In St. Mary’s Hospital, Inc. v. Phillipe, 769 So. 2d 961 (Fla. 2000), this Court addressed a similar equal-protection problem to the one presented here. This Court declared that it would violate equal protection to cap noneconomic damages in the aggregate, regardless of the number of claimants, as §766.118 does here. Id. at 971-72. The Court stated that if noneconomic damages were limited in the aggregate, then the death of a wife who leaves only a surviving spouse to claim the [full amount of the cap] is not equal to the death of a wife who leaves a surviving spouse and 1

Section 766.118(2) provides that noneconomic damages against a medical practitioner is limited to $500,000 per claimant, but that no practitioner shall be liable for more than $500,000, regardless of the number of claimants. Where the negligence results in a “permanent vegetative state or death,” the cap is raised to $1 million.

four minor children, resulting in five claimants to divide the [single capped amount]. We fail to see how this classification bears any rational relationship to the Legislature’s stated goal of alleviating the financial crisis in the medical liability industry. Such a categorization offends the fundamental notion of equal justice under the law and can only be described as purely arbitrary and unrelated to any state interest. Id. (emphasis added). The equal-protection violation identified by Phillipe is plainly present here.2 Three separate noneconomic damage awards were made by the federal district court based on the evidence presented. To Michelle McCall’s grieving parents, the court awarded $750,000 apiece for their pain and suffering. To Michelle’s surviving son, W.W., the court awarded $500,000 for his pain and suffering. Under Florida law, the “proceeds from a wrongful death action . . . are the property of the survivors and are compensation for their loss.” In re Estate of Barton, 631 So. 2d 315, 316 (Fla. 2d DCA 1994). Children, such as W.W., may recover for future loss of support and services, for lost parental companionship, instruction, and guidance, and for mental pain and suffering. §768.21(1) & (3), Fla. Stat. Parents, such as Edward and Margarita McCall, each had separate claims 2

This Court also has pending a case presenting a similar issue under a different Florida damage cap. In Samples v. Florida Birth-Related Neurological, No. SC10-1295 (submitted May 5, 2011), the certified question is “Does the limitation in section 766.31(1)(b)1, Florida Statutes, of a single award of $100,000 to both parents violate the Equal Protection Clause of the United States and Florida Constitutions?” See 40 So. 3d 18 (Fla. 5th DCA 2010).

for lost support and services and future lost support and services. §768.21(1), Fla. Stat. The federal court assessed their damages as fair value based on the record evidence. Applying the cap, it then reduced its own determinations so each claimant receives exactly half of their respective awards. Yet, if Michelle were survived only by her son, he would recover the full amount of his noneconomic damages: $500,000. The federal court rejected the equal-protection argument advanced by the Phillipe Court, as a matter of federal law, by ruling that the cap statute “draws no distinctions based on the size of a family,” but only “on the basis of each occurrence of medical malpractice.” 663 F. Supp. 2d at 1303. The fatal error in that analysis is that it operates at odds with traditional equal-protection analysis. The test of equal protection, even under its most deferential standard, is whether it classifies people differently based on “some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed, and can never be made arbitrarily, and without any such basis.” Gammon v. Cobb, 335 So. 2d 261, 264 (Fla. 1976). This Court spoke to the classification complained of here in Phillipe and stated that treating multiple claimants increasingly less favorably than single claimants is “purely arbitrary and unrelated to any state interest.” Phillipe, 769 So.

2d at 972. The cap limits W.W.’s recovery for the loss of a relationship with his mother, simply because his grandparents also suffered a tremendous cognizable loss. Here, due to the number of survivors Michelle left behind, each of them is treated differently than plaintiffs in other cases where there are fewer survivors or the survivors were not as severely damaged as the plaintiffs in this case. The statute ensures that even more arbitrary results will ensue in other cases. For example, if W.W. had a twin sister, or older siblings, his recovery and theirs would be yet more limited under an aggregate cap on noneconomic damages, even though their losses would not be ameliorated by the existence of other suffering claimants. Under this statute, the greater the number of survivors and the more devastating their losses are, the less likely they are to be fully compensated for their losses. Scaling damages that way can only be considered capricious and makes little sense. Under Florida’s equal protection clause and Phillipe, it is arbitrary and irrational, and it “offends the fundamental notion of equal justice under the law.” Phillipe, 769 So. 2d at 972. As applied to this multiple-claimant case, the cap violates equal protection. B.

Section 766.118 Fails Strict Scrutiny

Equal protection requires strict-scrutiny analysis when a law impedes or burdens the exercise of a fundamental right. See State v. J.P., 907 So. 2d 1101,

1109 (Fla. 2004); Mitchell v. Moore, 786 So. 2d 521, 527 (Fla. 2001). Strict scrutiny focuses on whether the law is supported by a “compelling governmental interest” and is “strictly tailored to remedy the problem in the most effective way” without “restrict[ing] a person’s rights any more than absolutely necessary.” Moore, 786 So. 2d at 527-28. The test this Court uses “corresponds” to the “overpowering public necessity” and “no alternative means” test employed in determining whether a violation occurs of the constitutional “access to courts” right as announced in Kluger v. White, 281 So. 2d 1 (Fla. 1973). Id. at 528.3 The Eleventh Circuit held that the cap did not violate Fourteenth Amendment equal protection, relying on a rational-basis analysis. That approach provides no guidance for this Court’s strict-scrutiny task because the cap implicates fundamental rights under the Florida Constitution’s access to courts and jury-trial provisions. See Haag v. State, 591 So. 2d 614, 618 (Fla. 1992) (access to courts is fundamental); Fox v. City of Pompano Beach, 984 So. 2d 664, 668 (Fla. 4th DCA 2008) (jury trial fundamental). To warrant strict scrutiny, an outright violation of the fundamental right is not necessary; the right merely must be burdened or implicated. See, e.g., State v. J.P., 907 So. 2d at 1109-16 (strict scrutiny applies when a law “impedes the exercise of,” “implicates,” “impinges,” or “burdens” a “fundamental right”); B.S. v. State, 862 So. 2d 15, 18 (Fla. 2d DCA 2003) (“affects”).

See infra pp. 32-36 for discussion of Kluger test.

Statutes that interfere with fundamental rights do not come to court clothed with a presumption of constitutionality, but are “presumptively unconstitutional unless proved valid.” N. Fla. Women’s Health & Counseling Servs., Inc. v. State, 866 So. 2d 612, 626 (Fla. 2003). That shifted burden requires those who would sustain the law to bear the “heavy burden” of showing the challenged statute accomplishes its goal through the least intrusive means. Id. at 646. Here, the United States did not and cannot meet their burden, a burden that the federal courts did not consider in this case. Limiting all of Michelle McCall’s survivors to a single aggregate amount of $1 million in noneconomic damages lacks compelling justification and is not narrowly tailored or the least restrictive means of addressing the purported problem. It fails strict scrutiny analysis, and this Court should likewise hold that it violates equal protection. 1.

There is no compelling governmental interest.

The Legislature attempted to satisfy the requirement of overpowering public necessity with empty claims that “Florida is in the midst of a medical malpractice insurance crisis of unprecedented magnitude,” resulting in doctors leaving the state or refusing to perform high-risk procedures and allegedly limiting the availability of health care. Fla. Sess. Law Serv. Ch. 2003-416, §1 (C.S.S.B. 2-D). These conclusory “findings” are unbolstered by facts and, even if accurate, are ultimately unavailing. Authoritative government reports belie the pretextual justifications that the Legislature imagined. See U.S. General Accounting Office, No. GAO-04-124,

Physician Workforce: Physician Supply Increased in Metropolitan and Nonmetropolitan Areas but Geographic Disparities Persisted (Oct. 2003), at 23, available at http://www.gao.gov/ new.items/d04124.pdf (finding that, from 1991 to 2001, Florida’s physician supply per 100,000 residents grew from 214 to 237 in metropolitan areas and from 98 to 117 in nonmetropolitan areas, or percentage increases of 11 and 19, respectively); U.S. Dep’t of Justice, Bureau of Justice Statistics, NCJ 216339, Medical Malpractice Insurance Claims in Seven States 2000-2004

(Mar.

2007),

available

http://bjs.ojp.usdoj.gov/

content/pub/pdf/mmicss04.pdf (finding that nearly 43 percent of Florida medical malpractice insurance claims were closed with a payout of combined economic and noneconomic damages of less than $100,000, two-thirds under $250,000, and only 5.5 percent had a payout of more than $1 million). The purported “crisis” in medical malpractice liability has been the rallying-cry to limit fundamental constitutional rights of those injured by medical negligence since the mid-1800s, yet lacks real substance. Ferdon ex rel. Petrucelli v. Wisconsin Patients Comp. Fund, 701 N.W.2d 440, 447 n.9 (Wis. 2005) (citing Catherine T. Struve, Doctors, The Adversary System, and Procedural Reform in Medical Liability Litigation, 72 Fordham L. Rev. 943, 952 (2004)). A Task Force whose report informed the legislative process concluded that there really was no crisis, employing much more equivocal language when

describing the evidence supporting the cap. See Governor’s Select Task Force on Healthcare Professional Liability Insurance (Jan. 29, 2003) [hereinafter TFR], at 211-12 (“Florida healthcare providers fear a bleak picture for Florida, but the Task Force believes it could get worse in the coming years . . . . Medical malpractice insurance premiums may become unaffordable, and/or coverage may become unavailable at any price to many physicians and hospitals.”) (emphasis added). The 2003 legislative debate exposed the fallacy of the claimed medical malpractice “crisis,” revealing that, in retrospect, previous laws enacted in 1975 and 1986 to respond to similar “crises” were not related to insurance premiums or to the need for caps, but rather the result of simple economic downturns. Transcript of Florida Senate Judiciary Comm. Debate, Session D, at 85-86 (Aug. 13, 2003) (App. 22-23). Yet, the Legislature trod down the road of capping damages yet again. Moreover, even if a “crisis” existed when §766.118 was enacted, a crisis is not a permanent condition. Changed conditions can remove the justification underlying the law, transforming a once reasonable law into an arbitrary and irrational one. It is “well settled” hornbook law that “[o]ver a period of time, social, political and economic changes may render a statute obsolete” and “that the continued existence of facts upon which the constitutionality of legislation depends remains at all times open to judicial inquiry.” Norman J. Singer, 2 Sutherland Stat. Construction §34:5, at 38, 40 (6th ed. 2000) (emphasis added; citing cases). Even if §766.118’s classification was rational when enacted based on information then 15

available, it loses its rationality if its factual premise changes. It is for precisely that reason that Florida’s courts consider both pre- and post-enactment evidence in assessing a statute’s continuing rationality. See, e.g., N. Fla. Women’s Health, 866 So. 2d at 616-17, 630. No crisis exists now to justify the cap. 2.

The cap is not narrowly tailored nor necessary to serve the State’s purported purpose.

Even if there were a compelling governmental interest supporting §766.118, the cap was not narrowly tailored, nor necessary, to serve the state’s purported goal. An authoritative government report indicates that many factors contribute to insurance premium increases. See U.S. General Accounting Office, No. GAO-03702, Medical Malpractice Insurance: Multiple Factors Have Contributed to Increased Premium Rates (Jun. 2003), available at http://www.gao.gov/ new.items/d03702.pdf. The narrow tailoring or least restrictive means requirement obligates the Legislature to pursue other causes before burdening fundamental rights. See, e.g., Sable Commc’n of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989) (regulations that touch upon a fundamental right must employ “the least restrictive means to further the articulated [compelling] interest”). Here, the legislature did not utilize its enormous authority to regulate insurance and insurance premiums. See, e.g., German Alliance Ins. Co. v. Lewis, 233 U.S. 389, 413-18 (1914) (discussing both the authority and the public interest involved in insurance regulation); Nationwide Mut. Ins. Co. v. Williams, 188 So.

2d 368, 369 (Fla. 1st DCA 1966). The Legislature did not utilize tax incentives and financial grants to offset insurance premium increases and induce more physicians to make Florida their home. Instead, the Legislature chose to cap compensatory damages, which it acknowledged to be no more than an “experiment.” Florida House Select Comm. on Medical Liability Ins., Report, Executive Summary (Mar. 2003), at 7.4 The Select Committee stated that although [t]he records of both the Governor’s Task Force and the Select Committee are replete with anecdotal evidence of the possible changes in behavior by medical practitioners, including institutional service provisions changes; . . . there was only minimal information available about specific cumulative totals of changes in service availability or the direct impact on healthcare services in any county in Florida due specifically to the rise in premium costs for service providers. Id. at 4. Plainly, alternative means to achieve the Legislature’s goal existed, which would have spread the cost among all Floridians, rather than impose those costs on the relatively few seriously injured victims of medical negligence who are most in need of compensation. The Task Force itself recognized that other measures were 4

In fact, the Senate Judiciary Committee chair acknowledged that “[t]here is no guarantee that any cap on noneconomic damages would lower premium rates.” Letter from J. Alex Villalobos, Chair of the Senate Judiciary Committee, to Senate President James E. “Jim” King, Journal of the Florida Senate, 2003 Special Session D, No. 2, at 21 (Aug. 13, 2003) (App. 28).

available to the Legislature. TFR, at 218-19. The existence of viable alternatives demonstrates that the law cannot meet strict scrutiny because there were less restrictive alternative means to serve the Legislature’s purpose. Additionally, the $1 million cap on damages here cannot meet strict scrutiny because it was not necessary to the legislature’s purported purpose. Here, the statute contains a variety of caps on damages, one that applies to claims against “practitioners” and another that applies to “non-practitioners,” allowing claimants to recover up to $2.5 million. The mere existence of multiple caps demonstrates that limiting the claimants here to $1 million is not necessary to the Legislature’s purported purpose. Because other means are available, §766.118 is neither narrowly tailored nor the least restrictive means and must be declared unconstitutional. C.

The Cap Cannot Even Meet the Rational-Basis Test

Even if the rational-basis test were applicable, §766.118 fails. The rationalbasis test requires a court to “determine (1) whether the statute serves a legitimate governmental purpose, and (2) whether it was reasonable for the Legislature to believe that the challenged classification would promote that purpose.” Hechtman v. Nations Title Ins. of New York, 840 So. 2d 993, 996 (Fla. 2003) (citations omitted). Moreover, as demonstrated above, “without exception, all statutory classifications that treat one person or group differently than others . . . cannot be

discriminatory, arbitrary, or oppressive.” Phillipe, 769 So. 2d at 971; see also Vildibill v. Johnson, 492 So. 2d 1047, 1050 (Fla. 1986) (“a statutory classification cannot be wholly arbitrary”). The Eleventh Circuit’s ruling applying the Fourteenth Amendment is not binding on this Court’s determination. The Eleventh Circuit’s rational-basis analysis was severely flawed. First, the Court imposed an impossible and unreasonable burden on the Plaintiffs of disproving “every conceivable basis which might support” the statute. See Estate of McCall v. United States, 642 F.3d 944, 950 (11th Cir. 2011) (citing FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 315 (1993)). It is, however, clear that Florida precedent permits plaintiffs to disprove the “rational basis” for a law by demonstrating that it is arbitrary and oppressive, see Phillipe, 769 So. 2d at 971, and plaintiffs have done so. Second, the Eleventh Circuit simply accepted the legislative purpose itself as legitimate, and then stretched that presumptively valid purpose into an assumption that the Legislature could have reasonably concluded that the cap on damages “would make medical malpractice insurance more affordable and healthcare more available.” 642 F.3d at 951. This sort of bootstrapping completely defeats the purpose of an equal-protection analysis. By assuming both that the purpose is legitimate and that the means of serving that purpose is reasonable, the Eleventh Circuit failed to ensure that the Legislature does not irrationally burden the most

severely injured Floridians based on assumptions, guesses, and hyperbole. The Eleventh Circuit’s toothless rational-basis inquiry is not the equal protection analysis that the Florida Constitution or this Court utilizes: While courts may defer to legislative statements of policy and fact, courts may do so only when those statements are based on actual findings of fact, and even then courts must conduct their own inquiry: The general rule is that findings of fact made by the legislature are presumptively correct. However, it is well-recognized that the findings of fact made by the legislature must actually be findings of fact. They are not entitled to the presumption of correctness if they are nothing more than recitations amounting only to conclusions and they are always subject to judicial inquiry. N. Fla. Women’s Health, 866 So. 2d at 627 (quoting Moore v. Thompson, 126 So. 2d 543, 549 (Fla. 1960)). See also City of Tampa v. State ex rel. Evans, 19 So. 2d 697, 697 (Fla. 1944) (“legislative findings of fact are not conclusive and may be contested in court”). This Court has, time and again, allowed the examination of the facts and evidence that undercut the Florida legislature’s rationales for Florida laws. See In re Matter of Adoption of X.X.G., 45 So. 3d 79 (Fla. 2010) (under a rational-basis inquiry, examining extensive expert evidence that disproved Florida’s purported rationale for a law prohibiting homosexuals from adopting); Cox v. Florida Dep’t of Health & Rehabilitive Servs., 656 So. 2d 902 (Fla. 1995) (remanding to allow the parties to make a record to allow the court to determine whether a law was supported by a rational basis).

There was no factual basis to assume capping noneconomic damages will reduce malpractice insurance premiums.

The Legislature based its legislative findings on the Governor’s Task Force, as well as other studies and experience in other states. Fla. Sess. Law Serv., supra, at ¶ 14. A fair review of those sources leads to the inescapable conclusion that the Legislature had no objective, factual basis for believing that a $1 million cap on noneconomic damages in medical malpractice actions involving death would significantly reduce liability insurance costs paid by Florida doctors. The Task Force was heavily influenced by the purported “success” of California’s noneconomic damage cap in mitigating the rising cost of malpractice insurance. The Task Force relied almost exclusively on the “success story” told by Californians Allied for Patient Protection, an interest group of physician organizations and insurance companies organized for the purpose of promoting California’s damage caps. See TFR, at 193-97. However, California’s experience with its $250,000 noneconomic damages cap was a doubtful basis for anticipating that a $1 million cap on noneconomic damages, coupled with a $1.5 million cap for nonpractitioners, would lower malpractice premiums in Florida. Indeed, in November 1975, only a few months after the California cap was enacted, California’s malpractice insurers levied huge premium increases of more than 400 percent. Note, Todd M. Kossow, Fein v. Permanente Medical Group: Future Trends in Damage Limitation Adjudication, 21

80 Nw. U. L. Rev. 1643, 1649 (1986). Premiums continued to rise sharply in California during the next decade after the cap was enacted. U.S. General Accounting Office, Medical Malpractice: Six State Case Studies Show Claims and Insurance Costs Still Rise Despite Reforms, “Case Study on California,” at 12, 22 (Dec. 1986); Mark A. Finkelstein, California Civil Section 3333.2 Revisited: Has It Done Its Job?, 67 S. Cal. L. Rev. 1609, 1617-18 (1994). In fact, malpractice insurance rates only stabilized after the state enacted strict insurance regulation through a voter initiative in 1988. See generally Foundation for Taxpayer and Consumer Rights, Insurance Regulation, Not Malpractice Caps, Stabilize Doctors’ Premiums (Jan. 16, 2003), available at http://www.consumerwatchdog.org/ patients/articles/?storyId=15058. The Legislature adopted the Task Force’s findings that California’s experience “is the strongest evidence that caps on non-economic damages . . . are the most effective tort reform,” TFR, at 212, but did not question whether California’s experience under their statutory cap was a reasonable basis for limiting damages in Florida almost three decades after California did. The Legislature’s blind acceptance of the California story in light of the facts was unwarranted and clearly erroneous. It cannot provide a rational basis for §766.118. Even if the Legislature’s factual findings were not clearly erroneous, the statute still violates equal protection because the available evidence does not

demonstrate a rational relationship between the damage cap and the alleviation of the purported medical malpractice crisis. See Lane v. Chiles, 698 So. 2d 260, 264 (Fla. 1997) (means must “serve[] to accomplish a legitimate governmental objective”). For example, Weiss Ratings, which evaluates the performance of the malpractice insurance industry, concluded: In states with caps, the median annual premium went up by 48.2%, but, surprisingly, in states without caps, the median annual premium increased at a slower clip—by 35.9%. These counter-intuitive findings can lead to only one conclusion: There are other, far more important factors driving the rise in med mal premiums than caps or med mal payouts. Martin D. Weiss, Melissa Gannon & Stephanie Eakins, Medical Malpractice Caps: The Impact of Non-Economic Damage Caps on Physician Premiums, Claims Payout Levels, and Availability of Coverage, at 3 (rev ed. June 3, 2003), available at http://www.moneyandmarkets.com/Images/public-service/MedicalMalpractice. pdf. Legislative testimony from insurers confirms that a cap of $500,000 or more would accomplish “virtually nothing.” Hearing on Medical Malpractice Before Sen. Judiciary Comm., at 51 (July 14, 2003) (statement of Robert White, President, First Professional Insurance Co.) (App. 40). See also Ferdon, 701 N.W.2d at 47172 (detailing studies demonstrating that “medical malpractice insurance premiums

are not affected by caps on noneconomic damages.”); U.S. Dep’t of Justice, Bureau of Justice Statistics, supra, at 1 (demonstrating that only a third of medical malpractice insurance payouts in Florida top $500,000 in combined economic and noneconomic damages). In addition due to the extreme rate of medical inflation, medical expenses associated with remediating malpractice have climbed precipitously, expenses that are part of compensatory damages and measured in uncapped economic damages. See, e.g., The Bureau of Labor Statistics, Consumer Price Index for All Urban Consumers 1992-2002 (reporting that in 12-month period ending May 2002 the cost of medical care increased by 4.7% while the consumer price index rose only by 1.2%). Because the cap does not affect these costs, coupled with the admissions that the caps were an experiment and that insurers believed the cap would accomplish “virtually nothing,” see pp. 17, 23 supra, there was no rational basis for the Legislature to assume that a noneconomic damage cap would address insurance premium increases. 2.

There was no rational basis for the Florida Legislature to expect that insurers would pass savings to doctors.

Caps on damages limit the amount of money insurance companies pay injured victims of medical malpractice, but they do not require insurance companies to use those savings to lower insurance premiums for doctors. Under §766.118, insurance companies remain free to spend the money not paid to 24

medical malpractice victims in any manner they choose, including executive compensation, advertising, investments, political activities, or shareholder dividends. As the Oklahoma Supreme Court observed, empirical studies have confirmed that without a statutory requirement that lower payments to plaintiffs result in lower premiums for doctors, savings resulting from caps simply swell the insurance company coffers: Insurance companies who benefit from tort reform but are not required to implement post-tort reform rates decreasing the cost of medical malpractice insurance to physicians . . . happily pay less out in tort-reform states while continuing to collect higher premiums from doctors and encouraging the public to blame the victim or attorney for bringing frivolous lawsuits. Zeier v. Zimmer, Inc., 152 P.3d 861, 869-70 (Okla. 2006). Cf. Department of Ins. v. Teachers Ins. Co., 404 So. 2d 735, 742 (Fla. 1981) (stating that the Legislature could not properly have intended that insurers enjoy excess profits in enacting tort and insurance reform acts). In 1987, the year after Florida enacted its previous, $450,000 noneconomic damage cap, Floridaâ&#x20AC;&#x2122;s largest malpractice carriers sought a premium increase. St. Paul Fire and Marine Insurance Co. formally told the Insurance Commissioner that the $450,000 noneconomic damage cap would not result in any real savings. See Jay Angoff, Insurance Against Competition: How the McCarran-Ferguson Act

Raises Prices and Profits in the Property Casualty Insurance Industry, 5 Yale J. on Reg. 397, 400-01 (1988). There is no basis to assume imposing a noneconomic damage cap would lower malpractice premiums. In fact, nothing has changed since the insurance issue was studied by a blueribbon American Bar Association commission that concluded that insurers’ “violent cyclical swings of boom and bust, profitability and loss” were occasioned by economic downturns and low interest rates that forced insurance companies that had previously set premium rates “unrealistically low because of the hugely favorable investment climate” to “raise[] their rates dramatically, prompting startled protests from the health care services, particularly medical doctors,” resulting in the adoption of “ill-conceived” legislation “designed to reduce the recoveries.” Robert B. McKay, Rethinking the Tort Liability System: A Report from the ABA Action Commission, 32 Vill. L. Rev. 1219, 1219-21 (1987). Contemporary studies reach the same conclusion. See, e.g., Tom Baker, Medical Malpractice and the Insurance Underwriting Cycle, 54 DePaul L. Rev. 393, 394 (2005). The best available empirical data reveals that the two most recent medical liability insurance crises [mid-1980s and early 2000s] did not result from sudden or dramatic increases in medical malpractice settlements or jury verdicts. Instead . . . the crises resulted from dramatic increases in the amount of money that the insurance industry put in reserve for claims. Those reserves increases were so big because the insurance

industry systematically under reserved in the years leading up to the crisis. Tom Baker, The Medical Malpractice Myth 53-54 (2005). Accord Bernard Black, et al., Stability, Not Crisis: Medical Malpractice Claim Outcomes in Texas, 19882002, 2 J. Empirical Legal Stud. 207, 210 (July 2005). A study of Florida jury trials and settlements similarly found that jury verdicts constitute “only a small fraction of total payouts by medical liability insurers” cases with substantial verdicts and were subsequently settled at discounts averaging about 37 percent less than the verdict. Neil Vidmar, Kara MacKillop & Paul Lee, Million Dollar Medical Malpractice Cases in Florida: Post-Verdict and Pre-Suit Settlements, 59 Vand. L. Rev. 1343, 1380 (2006). These studies refute any assumption that medical malpractice cases, rather than broader, unrelated economic conditions, explain the volatility of insurance premium rates. The optimistic hope of Florida’s legislative majority cannot overcome the fatal absence of a reliable factual basis that §766.118 would achieve its objective. As the Texas Supreme Court observed, “[i]n the context of persons catastrophically injured by medical negligence, we believe it is unreasonable and arbitrary to limit their recovery in a speculative experiment to determine whether liability insurance rates will decrease.” Lucas v. United States, 757 S.W.2d 687, 691 (Tex. 1988).

It is irrational and arbitrary to impose the cost of the purported public benefit on the most seriously injured victims of medical negligence.

Finally, §766.118(2) violates equal protection because it is discriminatory, arbitrary, and oppressive. See Phillipe, 769 So. 2d at 971; Nationwide Mut. Fire Ins. Co. v. Pinnacle Med., 753 So. 2d 55, 59 (Fla. 2000); Smith, 507 So. 2d at 1089. Even if this Court accepts at face value the dubious notion that limiting jury awards in medical malpractice cases will significantly reduce doctors’ liability premiums and ensure the availability of quality medical care for all Floridians, it is manifestly arbitrary and unfair to impose the cost of this public benefit on the relatively few most seriously harmed victims of medical malpractice. Other state supreme courts have also condemned such legislative arbitrariness. For example, New Hampshire’s Supreme Court held it “simply unfair and unreasonable to impose the burden of supporting the medical care industry solely upon those persons who are most severely injured and therefore most in need of compensation.” Carson v. Maurer, 424 A.2d 825, 837 (N.H. 1980), overruled on other grounds by, Cmty. Res. for Justice, Inc. v. City of Manchester, 917 A.2d 707 (N.H. 2007).5 More recently, one judge wrote, “[i]t is difficult to

The New Hampshire Supreme Court overruled Carson because the test used by the court in Carson did not go far enough in protecting against legislative “justifications that are hypothesized or ‘invented post hoc in response to litigation,’ [or] ‘overbroad generalizations.’” Cmty. Res. for Justice, Inc., 917 A.2d at 721. 28

conceive of the necessity of a health care policy that expressly relies on discrimination against the small number of unfortunate individuals who suffer the most debilitating, painful, lifelong disabilities as a result of medical negligence.” Klotz v. St. Anthony’s Med. Ctr., 311 S.W.3d 752, 782 (Mo. 2010) (en banc) (Teitelman, J., concurring). See also Best v. Taylor Machine Works, 689 N.E.2d 1057, 1077 (Ill. 1997). Section 766.118 seeks to save a relatively modest amount for the many by imposing crippling costs on a few. The legislative record contains no justification for such an arbitrary rule, and the cap cannot pass constitutional muster under Florida’s Equal Protection guarantee. II.

THE LIMIT ON NONECONOMIC DAMAGES VIOLATES THE FUNDAMENTAL RIGHT OF ACCESS TO THE COURTS Article I, section 21 explicitly declares: “The courts shall be open to every

person for redress of any injury, and justice shall be administered without sale, denial or delay.” It is a fundamental right, because it “has its source in and is explicitly guaranteed by the federal or Florida Constitution.” State v. J.P., 907 So. 2d at 1109. See also Psychiatric Assocs. v. Siegel, 610 So. 2d 419, 424 (Fla. 1992) (holding Art. I, §21 fundamental), receded from on other grounds, Agency for

New Hampshire would find the statute more grossly unconstitutional under the new standard.

Health Care Admin. v. Associated Indus. of Fla., Inc., 678 So. 2d 1239 (Fla. 1996).6 The provision derives from Chapter 40 of Magna Carta, which prohibits the sale, denial, or delay of justice and was understood to comprise “a promise of full and equal justice for all.” David Schuman, Oregon’s Remedy Guarantee: Article I, Section 10 of the Oregon Constitution, 65 Or. L. Rev. 35, 39 (1986). Upon Magna Carta’s reissue in 1225, Chapter 40 was combined with Chapter 39, the antecedent of our due process guarantee, to form a new Chapter 29, a provision that indisputably had the most significant impact on later American constitutional thinking. Hon. William C. Koch, Jr., Reopening Tennessee’s Open Courts Clause: A Historical Reconsideration of Article I, Section 17 of the Tennessee Constitution, 27 U. Mem. L. Rev. 333, 356, 350 (1997). As construed by Sir Edward Coke, Chapter 29 embraced “the entire body of the common law of the seventeenth century.” William S. McKechnie, Magna Carta, A Commentary on the Great Charter of King John 178 (2d ed. 1914). The seeds Coke planted in his writings found fertile soil in the American colonies. See A.E. Dick Howard, The Road from Runnymede 119-25 (1968). Coke

The U.S. Constitution contains an implicit guarantee of access to justice. See Christopher v. Harbury, 536 U.S. 403, 415 n.12 (2002) (holding that the right of access to the courts is “grounded in the Article IV Privileges and Immunities Clause, the First Amendment Petition Clause, the Fifth Amendment Due Process Clause, and the Fourteenth Amendment Equal Protection and Due Process Clauses.”). The Supreme Court has also held the right to be fundamental. See, e.g., Lewis v. Casey, 518 U.S. 343, 346 (1996).

was “widely recognized by the American colonists ‘as the greatest authority of his time on the laws of England.’” Payton v. New York, 445 U.S. 573, 594 (1980). His gloss on Magna Carta “was widely accepted and imported by early American colonists who incorporated it into state constitutions.” Jennifer Friesen, State Constitutional Law §6.2(a), at 349 n.16 (1996). See also Gresham v. Smothers Transfer Co., 23 P.3d 333, 340 (Or. 2001) (footnote omitted) (noting that “phrasing of remedy clauses that now appear in the Bill of Rights of the Oregon Constitution and 38 other states traces to Edward Coke’s commentary, first published in 1642, on the second sentence of Chapter 29 of the Magna Carta of 1225.”). When America’s constitution writers read Chapter 29 and adopted it in their state constitutions, “they almost certainly understood it as Coke did.” Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 29 (1991) (Scalia, J., concurring). Of equal influence was Sir William Blackstone, who, emphasized that under the common law and consistent with Magna Carta, “every Englishman” has the right to “apply[] to the courts of justice for redress of injuries.” 1 William Blackstone, Commentaries on the Laws of England 141 (1765). He added that, when the law recognized rights, such recognition would be “in vain” without “the remedial part of the law that provides methods for restoring those rights when they wrongfully are withheld or invaded.” Smothers, 23 P.3d at 343 (characterizing 1 Blackstone, Commentaries, at 56). The remedial “part” in common-law negligence claims is found in compensatory damages, the objective of which is “to make the

injured party whole to the extent that it is possible to measure his injury in terms of money.” Mercury Motors Express, Inc. v. Smith, 393 So. 2d 545, 547 (Fla. 1981). This conception of open and accessible courts became an American birthright and an article of faith that found expression in the nation’s seminal constitutional decision: “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803). From its first iteration, Florida’s Constitution has guaranteed every person a “right to free access to the courts on claims or redress of injury free of unreasonable burdens and restrictions.” G.B.B. Inv., Inc. v. Hinterkopf, 343 So. 2d 899, 901 (Fla. 3d DCA 1977). The seminal Florida case construing the access guarantee is Kluger v. White, 281 So. 2d 1 (Fla. 1973), which held that “the Legislature is without power to abolish [a preexisting common-law] 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.” Id. at 4. Section 766.118 plainly does not contain a reasonable alternative for the Plaintiffs, thus failing the first prong of the Kluger test. It also cannot satisfy the second prong of the test. The Kluger test is functionally equivalent to the strict

scrutiny test under equal protection. Moore, 786 So. 2d at 528. As it fails under strict scrutiny, it fails here. See pp. 12-16 supra. This Court undertakes an independent analysis to determine whether the Legislature presented a sufficient case that overpowering public necessity exists and that no alternative means to meet that necessity was available. Kluger, 281 So. 2d at 5. Legislative “statements of policy and fact ‘do not obviate the need for judicial scrutiny.’” N. Fla. Women’s Health, 866 So. 2d at 628 (footnote omitted). Cf. United States v. Morrison, 529 U.S. 598, 614 (2000) (“[S]imply because Congress may conclude that a particular activity substantially affects interstate commerce does not necessarily make it so” and congressional findings are “not sufficient, by itself, to sustain the constitutionality of Commerce Clause legislation.”) (quotation and citation omitted). In Smith v. Department of Insurance, 507 So. 2d 1080 (Fla. 1987), this Court applied Kluger and struck a prior, indistinguishable statutory cap on noneconomic damages as violative of the right to access to the courts: Access to courts is granted for the purpose of redressing injuries. A plaintiff who receives a jury verdict for, e.g., $1,000,000.00, has not received a constitutional redress of injuries if the Legislature statutorily, and arbitrarily, caps the recovery at $450,000.00. Id. at 1088-89. As later explained in University of Miami v. Echarte, 618 So. 2d 189 (Fla. 1993), cert. denied, 510 U.S. 915 (1993), the damages cap in Smith failed to pass

constitutional muster because it did not provide victims with a commensurate benefit when it capped their damages. Id. at 193-94. Quoting Smith, Echarte proclaimed: “the law is clear that the Legislature cannot restrict damages by either enacting a minimum damage amount or a monetary damage cap without meeting the Kluger test.” Id. at 194.7 Here, the Legislature prefaced §766.118 with “findings” that there was an overpowering public necessity in “making high-quality healthcare available to the citizens of this State” by “insuring the availability of affordable professional liability insurance for physicians,” and thereby “insuring that physicians continue to practice in Florida.” Florida Sess. Law Serv. Ch. 2003-416, §1 (C.S.S.B. 2-D). The determination of whether a statute is supported by overpowering public necessity is, however, a judicial conclusion as to whether the Legislature was acting within its constitutional authority. See N. Fla. Women’s Health, 866 So. 2d at 628. Legislative

Although this Court in Echarte upheld caps on noneconomic damages in medical malpractice claims in the discrete context of arbitration, the Echarte Court determined that the Kluger test was met because, in that instance, the Legislature had indeed provided a commensurate benefit, Echarte, 618 So. 2d at 194-95, and had found the requisite “overpowering public necessity,” id. at 196, while developing a record that “support[ed] the conclusion that no alternative or less onerous method exist[ed].” Id. at 197. The statute in issue in Echarte substituted binding arbitration for the common-law means of adjudicating, wherein defendants waive their right to defend liability, and in exchange, victims agree to cap their noneconomic damages, offsetting benefits not present in §766.118. Here, however, there is no similar offsetting benefit or quid pro quo that inures to the Plaintiffs’ advantage. 7

policy must be “based on actual findings of fact, and even then courts must conduct their own inquiries.” Id. at 627. Despite the Legislature’s conclusory “crisis” language in support of §766.188, it did not find an immediate or widespread danger to the availability of health care to Floridians. Indeed, the number of doctors practicing in Florida had steadily increased over the decade preceding enactment of the statute, both in metropolitan and rural areas. U.S. General Accounting Office, Physician Workforce, at 23. When compared to the factual findings the Legislature made in 1986 for the damage cap struck in Smith, the 2003 “crisis” was both narrower and less severe financially. According to the Legislature, the 1986 crisis affected not only physicians, but many sectors of the economy. “[P]rofessionals, businesses, and governmental entities” faced not only escalating premiums, but the unavailability of liability insurance. See Smith, 507 So. 2d at 1084 & n.2; see also id. at 1083-84, 1086-87 (twice reciting the “detailed legislative findings” of a commercial insurance liability crisis with supportive evidence). Just as it was told in 2003, the Legislature believed the 1986 cap was needed to respond to a crisis in which “physicians were severely limiting their practice in certain areas of medicine.” Id. at 1086. That identical finding accompanying the 1986 cap was insufficient to meet the Kluger test in Smith, resulting in invalidation

of that cap. Stare decisis mandates that the 2003 cap be invalidated on the same grounds. See Westgate Miami Beach, Ltd. v. Newport Operating Corp., 55 So. 3d 567, 574 (Fla. 2010) (“The doctrine of stare decisis counsels us to follow our precedents unless there has been ‘a significant change in circumstances after the adoption of the legal rule, or . . . an error in legal analysis.’”) (citations omitted). Similarly, §766.118 provides no offsetting benefit or substantially equivalent remedy to plaintiffs when it reduces the available remedy and limits damages to an amount that is less than the evidence supports. Any sufficient offsetting benefit must be personal to the adversely affected party and may not be satisfied by some supposed good enjoyed by the public at large. Kluger, 281 So. 2d at 5 (requiring the “alternative protection [be] for the victim of the accident”). Without that alternative remedy or offsetting benefit, the cap must be supported by an “overpowering public necessity” and constitute the only means available in order to justify its invasion of constitutionally guaranteed rights. Satisfaction of these requirements is palpably absent. It is not appropriate under these circumstances to defer to the Legislature. After all, “the enshrinement of constitutional rights necessarily takes certain policy choices off the table.” District of Columbia v. Heller, 554 U.S. 570, 636 (2008). See also Sable Commc’n, 492 U.S. at 129 (“whatever deference is due legislative findings would not foreclose our independent judgment of the facts bearing on an issue of constitutional law”). If there are alternative means to accomplish its objectives that do not intrude on access to the courts, the Florida Constitution 36

requires that the Legislature choose those alternatives. See Moore, 786 So. 2d at 527-28. Cf. Sable Commc’n, 492 U.S. at 129 (invalidating statutory provision for failing to adopt the “constitutionally acceptable less restrictive means”). The Legislature has broad powers and an array of options to make Florida more financially attractive to physicians. If the Legislature’s objective was to lower medical malpractice premiums, less restrictive means, such as regulating those premiums, which do not adversely affect anyone’s constitutional rights, are readily available. See Smith, 507 So. 2d at 1093 (upholding law that required excess profits from insurance premiums be returned to policyholders who comply with risk management guidelines). Another alternative would have been the institution of tax incentives to offset premium increases. See, e.g., Rosenshein v. Florida Dep’t of Children & Families, 971 So. 2d 837, 841 n.3 (Fla. 3d DCA 2007) (describing use of tax and economic policies by the federal and state governments to encourage or discourage certain behaviors). In the end, as Justice Holmes once stated, “a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.” Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 416 (1922). Moreover, as this Court held with respect to the Legislature’s detailed findings of a crisis in 1986, the access-to-courts guarantee cannot be met “if the legislature statutorily, and arbitrarily, caps the recovery.” Smith, 507 So. 2d at 1088. Not even assertion of a severe insurance affordability and availability crisis

is sufficient to justify plenary legislative authority over a component of proven compensatory damages. Much like the cap invalidated in Smith, §766.118 fails to connect the increased availability of health care that is its purported objective, in any significant manner, with a damage cap that, by definition, limits the damages that may be recovered by those most catastrophically injured by medical malpractice. Rather than constitute overpowering public necessity, the cap provides no legitimate justification for adding further injury to those most seriously harmed by medical negligence. Cf. The Declaration of Independence para. 30 (U.S. 1776) (“In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury.”). In short, §766.118’s cap is constitutionally indistinguishable from the cap invalidated in Smith. It should suffer the same fate. III.

THE CAP VIOLATES THE FUNDAMENTAL RIGHT TO TRIAL BY JURY The Florida Constitution guarantees that “[t]he right of trial by jury shall be

secure to all and remain inviolate.” Art. I, §22, Fla. Const. Use of the word “inviolate” in Florida’s successive constitutions comprises a choice of unique significance. It appears nowhere else in the Constitution. As this Court explained early in its history, the word “inviolate” “does not merely imply that the right of jury trial shall not be abolished or wholly denied, but that it shall not be impaired.” Flint River Steamboat Co. v. Roberts, 2 Fla. 102, 113

(1848) (emphasis in original). It then concluded that “the plain and obvious meaning” of the inviolate right to a jury trial is that “the General Assembly has no power to impair, abridge, or in any degree restrict the right of trial by jury as it existed when the Constitution went into operation.” Id. Thus, the jury-trial right preserved inviolate is the same as the right “‘enjoyed at the time [Florida’s] first constitution became effective in 1845.’” Dep’t of Revenue v. Printing House, 644 So. 2d 498, 500 (Fla. 1994) (quoting In re Forfeiture of 1978 Chevrolet Van, 493 So. 2d 433, 434 (Fla. 1986)). The conflict between the cap and the constitutional jury-trial right is palpable. Unlike constitutional rights that require courts to balance the claimed right against a countervailing governmental interest, the jury-trial right admits no abridgement or diminution of a jury’s prerogatives extant at the common law. Florida’s jury-trial guarantee, like its criminal-jury counterpart in the U.S. Constitution, “is no mere procedural formality, but a fundamental reservation of power in our constitutional structure.” Blakely v. Washington, 542 U.S. 296, 30506 (2004). Thus, “[j]ust as suffrage ensures the people’s ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary.” Id. at 306 (further describing the trust and authority we repose in American juries). One of the jury’s indisputable responsibilities is the determination of facts, Perenic v. Castilli, 353 So. 2d 1190, 1192 (Fla. 4th DCA 1977), including the assessment of compensatory damages. Miller v. James, 187 So. 2d 901, 902 (Fla.

2d DCA 1966) (“In a long line of cases, the appellate Courts of Florida have held that the amount of damages to be awarded plaintiff in a negligence action is peculiarly the province of the jury.”). Compensatory damages consist of both economic and noneconomic damages. No distinction is made with respect to the jury’s authority over these two components of total damages. The determination of noneconomic damages, such as pain and suffering compensation, “involves only a question of fact.” St. Louis, Iron Mountain & S. Ry. Co. v. Craft, 237 U.S. 648, 661 (1915), cited with approval in Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 437 (2001); see also Braddock v. Seaboard Air Line R.R. Co., 80 So. 2d 662, 667 (Fla. 1955). Although the Seventh Amendment’s guarantee of a civil jury has no application to the States, the U.S. Supreme Court’s description of the jury’s role under that provision provides persuasive guidance in the application of Florida’s cognate right. Engle v. Liggett Group, Inc., 945 So. 2d 1246, 1270 n.13 (Fla. 2006). In its most relevant modern declaration of jury authority over damages, the U.S. Supreme Court declared, as it was under the common law, that juries have always served as the “judges of damages.” Feltner v. Columbia Pictures Television, 523 U.S. 340, 353 (1998), quoting with approval, Townsend v. Hughes, 86 Eng. Rep. 994, 994-945 (C.P. 1677). Feltner did not enunciate anything new, as that Court has consistently held that a plaintiff “remain[s] entitled . . . to have a

jury properly determine the question of liability and the extent of the injury by an assessment of damages. Both are questions of fact.” Dimick v. Schiedt, 293 U.S. 474, 486 (1935) (emphasis added). See also Kennon v. Gilmer, 131 U.S. 22, 29-30 (1889) (a “court has no authority . . . in a case in which damages for a tort have been assessed by a jury at an entire sum, . . . to enter an absolute judgment for any other sum than that assessed by the jury [unless] the plaintiff elected to remit the rest of the damages”). For that reason, the U.S. Supreme Court has held that recalculating damages after the jury has awarded those damages constitutes a remittitur. Hetzel v. Prince William County, 523 U.S. 208, 211 (1998). The bottom line, the Court said, was that “requiring the District Court to enter judgment for a lesser amount than that determined by the jury without allowing petitioner the option of a new trial, cannot be squared with the Seventh Amendment[’s jury-trial guarantee].” Id. Florida follows the same constitutional tradition, relying on the common law to define the jury’s constitutionally protected authority. See 1978 Chevrolet Van, 493 So. 2d at 434. By adopting the right as it was understood by English and American authorities, Florida’s framers imported into the state’s organic law an understanding that the jury’s role in assessing damages was preeminent and replaceable only by consent. More than a century ago, this Court struck a statute that purported to assign the assessment of damages to a court. In Wiggins v. Williams, 18 So. 859 (1896), 41

this Court held that a statute that allowed a “court of equity to assess damages for a trespass under the conditions prescribed by the statute” to be “unauthorized,” because it “deprives a party of the right of trial by jury in a case according to the course of the common law when the constitution was adopted.” Id. at 866. Wiggins added that the Legislature was without power to authorize any other body to “assess damages in a case clearly triable at law by a jury.” Id. Modern Florida case law marks no departure from the cases that condemn this type of legislative arrogation of the power the Constitution assigns to the jury. Article I, section 22 vests juries with the authority to determine the amount of damages for all common-law purposes, absent a waiver of that right by the parties.8 The jury’s preeminent role in the assessment of damages is especially critical with regard to noneconomic damages. It is precisely because pain and suffering are so difficult to quantify that such damages are “particularly within the province of the jury.” Daniels v. Weiss, 385 So. 2d 661, 664 (Fla. 3d DCA 1980). Accord General Foods Corp. v. Brown, 419 So. 2d 393, 394 (Fla. 1st DCA 1982). It is therefore not surprising that this Court struck down a constitutionally indistinguishable cap on noneconomic damages in Smith, 507 So. 2d at 1088-89, recognizing that it violated both the access to courts and jury-trial guarantees. The 8

Section 766.118 further violates the jury-trial right by substituting the trial court for the jury in cases involving death or a permanent vegetative state the determination that “the special circumstances of the case” merit a higher noneconomic damage cap of $1 million against all practitioner defendants. §766.118(2)(b)(1), Fla. Stat. The evaluation of “special circumstances” is a factual determination within the jury’s province, not the court’s.

Court explicitly found that a plaintiff whose “jury verdict is being arbitrarily capped” is not “receiving the constitutional benefit of a jury trial as we have heretofore understood that right.” Id. The ruling left no room for balancing a plaintiff’s rights against other considerations such as claims of a “crisis,” which was asserted without effect by the defendant and General Assembly in Smith.9 Id. at 1084. The ruling in Smith is completely in line with the jury-trial right’s designation as “inviolate.” Cf. Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 691 S.E.2d 218 (Ga. 2010) (striking down a noneconomic damage cap as inconsistent with the “inviolate” right to a jury trial); Lakin v. Senco Products, Inc., 987 P.2d 463 (Or. 1999) (same); Moore v. Mobile Infirmary Ass’n, 592 So. 2d 156, 158 (Ala. 1991) (same); Sofie v. Fibreboard Corp., 771 P.2d 711 (Wash. 1989) (same). See also Klotz, 311 S.W.3d at 773-80 (Wolff, J., concurring) (describing the cap’s inconsistency with an “inviolate” jury-trial right); Rhyne v. K-Mart Corp., 594 S.E.2d 1, 12 (N.C. 2004) (distinguishing between a punitive damages cap as not inconsistent with the “inviolate” right to a jury trial and a cap affecting compensatory damages, which is).

In Echarte, this Court upheld a noneconomic damage cap in medical malpractice cases submitted to arbitration. The decision is inapposite to the jurytrial issue. In Echarte, the parties’ “agreement to participate in arbitration binds both parties to the arbitration panel’s decision,” 618 So. 2d at 193, and thus operates as consent to waive the right to a jury trial. See Lopez v. Ernie Haire Ford, Inc., 974 So. 2d 517, 518 (Fla. 2d DCA 2008).

Two arguments sometimes made against invalidation of a cap on the basis of the jury-trial right are easily disposed of. One suggests, as the federal district court stated, that “the fact that this type of damages is speculative in nature and subject to widely varying awards makes it reasonable for the legislature to impose limits.” Estate of McCall, 663 F. Supp. 2d at 1304, relying on Franklin v. Mazda Motor Corp., 704 F. Supp. 1325, 1332 (D. Md. 1989). The holding fails to give credit to Florida’s established constitutional law and relies on a federal district court’s views that are inconsistent with subsequent U.S. Supreme Court precedent. See Feltner, 523 U.S. at 355 (“[I]f a party so demands, a jury must determine the actual amount of . . . damages”); id. (any other approach to damages would fail “‘to preserve the substance of the common-law right of trial by jury,’” as required by the Constitution). (citation omitted). See also Cooper Indus., 532 U.S. at 437 & 437 n.11 (distinguishing noneconomic damages as a fact within the jury’s province from punitive damages, which are merely an expression of the jury’s moral outrage and thus only the latter may subject to judicial revision consistent with the Seventh Amendment). Second is the argument that the jury’s job is over at verdict and that the cap is merely the application of law by the judge to the jury’s determination. See, e.g., Franklin, 704 F. Supp. at 1331, 1334, relying on Tull v. United States, 481 U.S. 412, 426 n.9 (1987) (stating that “[n]othing in the [Seventh] Amendment’s language suggests that the right to a jury trial extends to the remedy phase of a civil trial.”). Tull, however, dealt with penalties under the Clean Water Act, not a

common-law cause of action. Feltner unanimously declared Tull “inapposite” in common-law actions under the jury-trial right’s historic test. Feltner, 523 U.S. at 355. Thus, Feltner held that juries must determine damages in common-law actions because any other approach to finalizing the award of damages would fail “‘to preserve the substance of the common-law right of trial by jury,’” as required by the Constitution. Id. at 355 (citation omitted). The noneconomic damages cap in issue here is constitutionally indistinguishable from the cap on noneconomic damages invalidated by the Smith Court as violative of the right to trial by jury. It deserves the same fate. IV.

THE LIMIT ON NONECONOMIC SEPARATION OF POWERS

DAMAGES

VIOLATES

Article II, section 3 of the Florida Constitution divides government power into distinct and separate spheres, consisting of the “legislative, executive and judicial branches” and further provides that “[n]o person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.” Judicial decisions pay respect to the importance of that constitutional injunction: The preservation of the inherent powers of the three branches of government—legislative, executive, and judicial—free from encroachment or infringement by one upon the other, is essential to the safekeeping of the American system of constitutional rule. . . . “Any legislation that hampers judicial action or interferes with the discharge of judicial functions is unconstitutional.” 45

Simmons v. State, 36 So. 2d 207, 208 (Fla. 1948) (footnote omitted). Based on that understanding, this Court “has traditionally applied a strict separation of powers doctrine.” State v. Cotton, 769 So. 2d 345, 353 (Fla. 2000). One “fundamental prohibition” of the doctrine is “that no branch may encroach upon the powers of another.” Chiles v. Children A, B, C, D, E, & F, 589 So. 2d 260, 264 (Fla. 1991) (citation omitted). Florida’s constitutional framers rejected a regime, prevalent elsewhere, that permitted through legislation the “enacting for one or the other party litigants such provisions as would dictate to the judiciary their decision, and leaving everything which should be expounded by the judiciary to the variable and ever changing mind of the popular branch of the Government.” Trustees Internal Improvement Fund v. Bailey, 10 Fla. 238, 250 (1863). Moreover, this Court has recognized that the same sentiment motivated the federal framers’ “desire to prevent Congress from using its power to interfere with the judgments of the courts.” Bush v. Schiavo, 885 So. 2d 321, 330 (Fla. 2004). Florida’s Constitution vests the judiciary “with the sole authority to exercise the judicial power,” and “the legislature cannot, short of constitutional amendment, reallocate the balance of power expressly delineated in the constitution among the three coequal branches.” Children A, B, C, D, E, & F, 589 So. 2d at 268-69. One indisputably judicial function is to render judgments in cases presented to the

courts. Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 219 (1995). See also Bush, 885 So. 2d at 330 (citing Plaut); United States v. Sioux Nation of Indians, 448 U.S. 371, 392 (1980) (legislature may not “control the . . . ultimate decision”). Another judicial function is the responsibility of the judiciary to assure that the judgment conforms to the evidence. See Allred v. Chittenden Pool Supply, Inc., 298 So. 2d 361, 365 (Fla. 1974) (“if the record supports the award of damages, an abuse of discretion may exist in a trial judge’s conclusion that his conscience was shocked,” and he orders remittitur or a new trial not required by the record). Section 766.118(2) attempts to control judicial decision-making by taking away the judicial power of remittitur, exercising that authority legislatively by imposing a one-size-fits-all mandated remittitur, and by requiring a judge to enter judgment for an amount of damages at odds with the credible evidence adduced at trial. By revising the jury’s fair and proper verdict in this case and other cases, the Legislature has taken on the mantle of “super-judiciary” in contravention of our Constitution’s carefully balanced system of separated powers. After all, our history “teaches that the Constitution is preserved best when each part of the government respects both the Constitution and the proper actions and determinations of the other branches.” City of Boerne v. Flores, 521 U.S. 507, 535 (1997). Under that division of powers, the legislature has no authority to hear, decide, or determine the outcome of a case cognizable under the common law.

Early on, the Florida Supreme Court recognized the essential nature of the separation principle, when it declared unconstitutional, as an exercise of judicial power by a legislative body, an act that granted a divorce to a couple. Ponder v. Graham, 4 Fla. 23 (1851). The Court eloquently described the importance of separation of powers in words that are important to the present matter: It is only by keeping these departments in their appropriate spheres, that the harmony of the whole can be preservedâ&#x20AC;&#x201D;blend them, and constitutional law no longer exists. The purity of our government, and a wise administration of its laws, depend upon a rigid adherence to this principle. It is one of fearful import, and a relaxation is but another step to its abandonmentâ&#x20AC;&#x201D;for what authority can check the innovation, when the barriers so clearly defined by every constitutional writer, are once thrown down. Each department is a blank in government without the aid and cooperation of the others; and when one is encroached upon, its powers, to that extent, become paralyzed, and the whole system fails to carry out those high purposes for which it was designed. Under all circumstances, it is the imperative duty of the courts to stand by the constitution. Id. at 42-43. Limits on noneconomic damages interfere with judicial authority, in part, as two sister supreme courts have termed it, by constituting a form of legislative remittitur. See Lebron v. Gottlieb Mem. Hosp., 930 N.E.2d 895, 908-09 (Ill. 2010); Best, 689 N.E.2d at 411-12; Cf. Sofie, 771 P.2d at 720-21. A judge suggests a remittitur when the evidence does not support the juryâ&#x20AC;&#x2122;s verdict. Even so, a plaintiff dissatisfied with the amount of damages suggested in 48

remittitur has the right to reject it and insist upon a new jury trial on the amount of damages. See Wackenhut Corp. v. Canty, 359 So. 2d 430, 437 (Fla. 1978) (also holding that a trial judge may not, consistent with the Constitution, act as an additional juror with “veto power”). In fact, when a court orders a remittitur, it must still preserve to the plaintiff the right to opt for a new jury trial. Born v. Goldstein, 450 So. 2d 262, 264 (Fla. 5th DCA 1984). Section 766.118 operates as a legislative remittitur because it requires the court to remit any damage award above a pre-determined, arbitrary amount, regardless of the judge’s determination that the verdict is supported by the evidence or that a smaller remittitur is warranted. As a result, the judge loses all authority over the judicial power of remittitur. In addition to operating as an impermissible legislative remittitur, the cap also forces a judge to grant a judgment at odds with what the evidence and factual findings of the jury establish. A judge has a duty to assure that the verdict conforms to the evidence, and a judgment at variance from the evidence constitutes plain error. See Heath v. First Nat’l Bank, 213 So. 2d 883 (Fla. 1st DCA 1968) (holding it reversible error to order judgment different from the weight and competency of the evidence). See also Kennon, 131 U.S. at 29-30 (a “court has no authority . . . to enter an absolute judgment for any other sum than that assessed by the jury [unless] the plaintiff elected to remit the rest of the damages”).

APPENDIX

INDEX TO APPENDIX 1.

U.S. Court of Appeals for the Eleventh Circuit Opinion (May 27, 2011) .................................................................................................App. 1

*2.

Transcript of Florida Senate Judiciary Committee Debate, Session D (Aug. 13, 2003) (excerpt) ....................................................App. 20

Letter from J. Alex Villalobos, Chair of the Senate Judiciary Committee, to Senate President James E. â&#x20AC;&#x153;Jimâ&#x20AC;? King, Journal of the Florida Senate, 2003 Special Session D, No. 2 (Aug. 13, 2003).....................................................................................App. 25

*4.

Hearing on Medical Malpractice Before Senate Judiciary Committee (July 14, 2003) (statement of Robert White, President, First Professional Insurance Co.) (excerpt) .........................App. 36

* Indicates omissions in documents or testimony of witnesses.

[PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS No. 09-16375 ________________________

ELEVENTH CIRCUIT MAY 27, 2011 JOHN LEY CLERK

D. C. Docket No. 07-00508-CV-MCR/EMT ESTATE OF MICHELLE EVETTE MCCALL, By and Through Co-Personal Representatives Edward M. McCall II, Margarita F. McCall and Jason Walley, EDWARD M. MCCALL, MARGARITA F. MCCALL, JASON WALLEY, Plaintiffs-Appellants, versus UNITED STATES OF AMERICA, Defendant-Appellee. ________________________ Appeal from the United States District Court for the Northern District of Florida _________________________ (May 27, 2011)

App. 1

Before EDMONDSON, and MARTIN, Circuit Judges, and HODGES,* District Judge. MARTIN, Circuit Judge: The central question presented in this appeal is whether Florida’s cap on noneconomic medical malpractice damages, Fla. Stat. § 766.118, violates the Florida or United States Constitutions. The Estate of Michelle McCall, Ms. McCall’s parents, and the father of Ms. McCall’s son (collectively “Plaintiffs”) also appeal the District Court’s application of that statutory cap. After thorough review and having had the benefit of oral argument, we conclude that the District Court did not err in applying the cap. We also conclude that Florida’s statutory cap passes muster under the Equal Protection Clause of the Fourteenth Amendment and the Takings Clause of the Fifth Amendment of the United States Constitution as well as the Takings Clause of Article X, § 6(a) of the Florida Constitution. Because no Florida Supreme Court decisions provide controlling guidance to resolve Plaintiffs’ other challenges to this cap on noneconomic medical malpractice damages under that state’s Constitution, we grant, in part, Plaintiffs’ motion to certify questions to the Florida Supreme Court.

Honorable William Terrell Hodges, United States District Judge for the Middle District of Florida, sitting by designation. 2

App. 2

I. During June 2005, Michelle McCall received prenatal medical care at a United States Air Force clinic as an Air Force dependent. Ms. McCall opted for the Air Force’s family practice department to provide primary prenatal care and delivery services throughout her pregnancy. She had a healthy and normal pregnancy until the last trimester. On February 21, 2006, test results revealed that Ms. McCall’s blood pressure was high and that she was suffering from severe preeclampsia. Ms. McCall’s serious condition required that labor be induced immediately. Instead of transferring Ms. McCall to the OB/GYN department, the family practice department continued to provide medical care. The Air Force hospital was temporarily unavailable for obstetric and delivery services, so members of the family practice department transferred Ms. McCall to the Fort Walton Beach Medical Center instead. There, Air Force family practice doctors treated Ms. McCall for hypertension and induced labor. When Ms. McCall dilated to five centimeters, her contractions slowed and became weaker. The Air Force family practice doctors treating Ms. McCall called an Air Force obstetrician, Dr. Archibald, and asked if he could perform a cesarean section. Dr. Archibald reported that he was performing another surgery and would not be available to 3

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perform a cesarean section on Ms. McCall until after he finished that surgery. The Air Force family practice doctors prepared Ms. McCall for a cesarean section but did not call other obstetricians to determine if one was available to provide immediate medical care. On February 22, 2006, Dr. Archibald finally arrived to perform the cesarean section, but Ms. McCallâ&#x20AC;&#x2122;s contractions had resumed and the Air Force family practice doctors decided to allow Ms. McCall to deliver vaginally. Dr. Archibald left the Fort Walton Medical Center. On February 23, 2006 at 1:25 a.m., Ms. McCall delivered a healthy baby boy. Family members who visited Ms. McCall after the delivery expressed concerns about the amount of blood Ms. McCall had lost during delivery. Medical personnel assured these family members that Ms. McCall was stable. Thirty-five minutes later, when the placenta had not delivered as expected, two family practice doctors from the family practice department tried without success to manually extract the placenta. An Air Force nurse anesthetist administered additional epidural pain relief and gave Ms. McCall two separate doses of Morphine intravenously. Around 2:35 a.m., the family practice department doctors called Dr. Archibald, the obstetrician, for assistance when they could not remove the placenta manually. 4

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Ms. McCall’s blood pressure began to drop rapidly and remained dangerously low over the next two and a half hours. The Air Force nurse anesthetist monitoring Ms. McCall’s vital signs did not notify the family practice doctors of the drop in Ms. McCall’s blood pressure. Dr. Archibald arrived at 2:45 a.m. and removed the placenta within five minutes. The family practice department doctors informed Dr. Archibald that Ms. McCall had not lost much blood during delivery. Dr. Archibald, however, noticed severe vaginal lacerations and worked to repair them over the next hour. During that time, the Air Force nurse anesthetist monitored Ms. McCall’s vital signs, reported to Dr. Archibald that they were stable, and failed to inform him that Ms. McCall’s blood pressure was dangerously low and continuing to drop. Dr. Archibald never checked the vital signs himself and relied exclusively on the nurse to inform him of any blood pressure changes or problems. At 3:50 a.m. when Dr. Archibald finished his work, he requested an immediate blood count and, if needed, a transfusion to compensate for the blood Ms. McCall lost during the procedure. Forty minutes later, the family practice department physician ordered the blood count test. Forty minutes after that, and over an hour after Dr. Archibald had requested immediate blood work, a nurse attempted to draw blood from Ms. McCall. Ms. McCall was unresponsive. She 5

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had gone into shock and cardiac arrest as a result of severe blood loss. It is not clear how long Ms. McCall had been in this state, since no one had monitored her or checked her status for the hour following Dr. Archibald’s procedure. Ms. McCall never regained consciousness and was removed from life support on February 27, 2006. II. Plaintiffs sued the United States under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671–80. After a two-day bench trial, the District Court found the United States liable under the FTCA because the negligence of its employees proximately caused Ms. McCall’s death. The District Court found that Plaintiffs’ economic damages, or financial losses, amounted to $980,462.40. The court found that Plaintiffs’ noneconomic damages, or nonfinancial losses, totaled $2 million, including $500,000 for Ms. McCall’s son and $750,000 for each of her parents. The District Court applied Florida’s statutory cap on noneconomic damages for medical malpractice claims and limited Plaintiffs’ recovery of noneconomic damages to $1 million. See Fla. Stat. § 766.118(2). The District Court rejected Plaintiffs’ argument that they were entitled to the full $2 million in noneconomic damages because they could recover under both the $1 million cap for 6

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“practitoners” and the $1.5 million cap for “nonpractitioners.” The Court also denied Plaintiffs’ motion challenging the constitutionality of Florida’s statutory cap under both the Florida and United States Constitutions. Plaintiffs next filed a motion to alter or amend the judgment. Plaintiffs renewed their argument that they were entitled to recover up to $2.5 million under Florida’s statutory cap. They argued that the District Court should have held the Eglin Air Force Base Hospital vicariously liable, as a “nonpractitioner,” for the negligence of its practitioner employees. The District Court denied Plaintiffs’ motion after finding that if the United States was vicariously liable for the negligence of its employees, any damages recoverable from it would be subject to Florida’s $1 million cap for “practitioners.” Thus, the court determined that Plaintiffs’ recoverable noneconomic damages remained capped at $1 million. On appeal, Plaintiffs challenge the District Court’s rulings on both the application and constitutionality of Florida’s cap on noneconomic damages for medical malpractice claims. Plaintiffs argue that Florida’s statutory cap violates the Equal Protection Clause of Fourteenth Amendment and constitutes a taking in violation of the Fifth Amendment of the United States Constitution. Plaintiffs also argue that the cap violates the following provisions of the Florida Constitution: (1) the guarantee of separation of powers in Article II, § 3 and Article V, § 1; (2) the 7

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right to trial by jury under Article I, § 22; (3) the right of access to the courts under Article I, § 21; (4) the right to equal protection under Article I, § 2; and (5) the prohibition against a taking of property without just compensation under Article X, § 6. We address each of these issues in turn, reviewing the district court’s conclusions of law de novo and the district court’s factual findings for clear error. See Proudfoot Consulting Co. v. Gordon, 576 F.3d 1223, 1230 (11th Cir. 2009). III. We first address whether the District Court properly applied Florida’s cap on noneconomic damages. For a personal injury or wrongful death claim arising from the medical negligence of “practitioners,” Florida’s statute provides: (a) [R]egardless of the number of such practitioner defendants, noneconomic damages shall not exceed $500,000 per claimant. No practitioner shall be liable for more than $500,000 in noneconomic damages, regardless of the number of claimants. (b) Notwithstanding paragraph (a), if the negligence resulted in a permanent vegetative state or death, the total noneconomic damages recoverable from all practitioners, regardless of the number of claimants, under this paragraph shall not exceed $1 million . . . . (c) The total noneconomic damages recoverable by all claimants from all practitioner defendants under this subsection shall not exceed $1 million in the aggregate. Fla. Stat. § 766.118(2). The statute includes a similar provision for claims against nonpractitioners. That provision limits noneconomic damages to $750,000 per 8

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claimant, or $1.5 million in the aggregate recoverable by all claimants against all nonpractitioner defendants. Fla. Stat. § 766.118(3). The statute defines a “practitioner” as: any person licensed under chapter 458, chapter 459, chapter 460, chapter 461, chapter 462, chapter 463, chapter 466, chapter 467, or chapter 486 or certified under s. 464.012 . . . 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 . . . 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. Fla. Stat. § 766.118(1)(c). The statute does not define the term “nonpractitioner.” On appeal Plaintiffs argue for the first time that they should have recovered $1 million against Eglin Air Force Base Hospital as a nonpractitioner because it “is independently liable for its own breaches of duty under Florida law” for its “systemic” negligence. Plaintiffs waived that argument by failing to raise it before the District Court. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004) (“[A]n issue not raised in the district court and raised for the first time in an appeal will not be considered by this court.” (quotation marks omitted)). Plaintiffs did not allege in their complaint that the hospital itself was directly liable for its negligent actions independent of those of its employees. Nor did Plaintiffs raise that argument in their motion to alter or amend the judgment. 9

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Rather, in that motion Plaintiffs argued that the hospital should be held vicariously liable for the negligence of its employees. The District Court properly found that any noneconomic damages recoverable from the hospital based on its vicarious liability fell within the $1 million cap for “practitioners.” Florida’s statute expressly provides that “the term ‘practitioner’ includes . . . any person or entity whose liability is based solely on such person or entity being vicariously liable for the actions of a practitioner.” Fla. Stat. § 766.118(1)(c). The District Court also correctly characterized the certified registered nurse anesthetist, the family practice doctors and the obstetrician who provided Ms. McCall’s medical care at the Fort Walton Beach Medical Center as “practitioners.”2 See Fla. Stat. §§ 766.118(1)(c), 464.012, 458.311. The District Court was correct in finding that Plaintiffs did not establish that Ms. McCall’s death resulted from the negligence of a “nonpractitioner.” As the District Court observed, Plaintiffs’ complaint did not identify any hospital staff or nurses by name except for the physicians, who are practitioners. The District Court also reported that “no evidence at trial singled out a specific nonpractitioner

appeal.

Plaintiffs conceded this point before the District Court and do not argue otherwise on 10

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for negligent conduct.” Our independent review of the trial record confirms that finding. While Plaintiffs’ expert in obstetrics and gynecology opined about the negligence of the nurse anesthetist, family practice doctors and obstetrician who provided medical care to Ms. McCall, the expert did not discuss the potential negligence of any other members of the hospital staff. On this record, we conclude that the District Court did not err in applying Florida’s cap on noneconomic damages for medical malpractice claims. IV. Plaintiffs next challenge the cap under several provisions of the Florida and United States Constitutions. We first address Plaintiffs’ argument that the cap violates the United States Constitution. We then review Plaintiffs’ challenge to the cap under the Takings Clause of the Florida Constitution, Art. X, § 6, because Florida constitutional law on the matter is well settled. Florida constitutional law on the other provisions of the Florida Constitution under which Plaintiffs challenge the statutory cap, however, is unsettled. For this reason, we will certify several questions of state constitutional law to the Florida Supreme Court under its certification procedure.

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A. Plaintiffs argue that Florida’s statutory cap on noneconomic damages for medical malpractice claims violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. Under the Equal Protection Clause, “[s]ocial and economic legislation . . . that does not employ suspect classifications or impinge on fundamental rights must be upheld against equal protection attack when the legislative means are rationally related to a legitimate governmental purpose.” Hodel v. Indiana, 452 U.S. 314, 331, 101 S. Ct. 2376, 2387 (1981); see also U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 175, 177, 101 S. Ct. 453, 459–60 (1980). We reject Plaintiffs’ argument that strict or intermediate scrutiny applies to our review of the statute under the Equal Protection Clause of the United States Constitution. Plaintiffs have not identified how the statute burdens a fundamental right or draws a suspect classification under federal law. We therefore analyze whether Florida’s statutory cap is rationally related to a legitimate governmental purpose. See Hodel, 452 U.S. at 331, 101 S. Ct. at 2387. When applying rational basis review, we must uphold the statute against an equal protection challenge “if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 312, 12

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313, 113 S. Ct. 2096, 2101 (1993). “[T]hose attacking the rationality of the legislative classification have the burden to negative every conceivable basis which might support it.” Id. at 315, 113 S. Ct. at 2102 (quotation marks omitted). In enacting the statutory cap, the Florida legislature reported that a recent, dramatic increase in medical malpractice liability insurance premiums had increased the cost of medical care and decreased the availability of malpractice insurance. See Fla. Stat. § 766.201(1)(a). The legislature observed that “[t]he primary cause of increased medical malpractice liability insurance premiums has been the substantial increase in loss payments to claimants caused by tremendous increases in the amounts of paid claims.” Id. § 766.201(1)(b). The legislature created the statutory cap on noneconomic damages in an effort to make malpractice insurance easier to obtain and reduce the cost of medical care. See id. § 766.201(1). Plaintiffs argue that the statutory cap lacks a rational basis because the Florida legislature “had no objective, factual basis for believing” that a cap on noneconomic damages for medical malpractice claims would reduce the cost of medical malpractice insurance. That argument lacks merit. Before enacting the statutory cap, the Florida legislature’s Select Committee prepared a report on the issue. See Florida House of Representatives, Select Committee on Medical 13

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Liability Insurance Report (2003)3 at 4. Before issuing the report the legislature held public hearings, heard expert testimony and reviewed a separate report prepared by Governor Bush’s Task Force on Healthcare Professional Liability Insurance. Id. The Task Force report set forth that health care providers were changing the scope of their practice, leaving Florida, or retiring because of escalating medical malpractice premiums. Id. at 15. The Task Force recommended that the legislature create a “per incident” medical malpractice cap to remedy the problem. Id. at 55. By their argument, Plaintiffs ask us to second guess the legislature’s judgment in enacting a “per incident” rather than “per claimant” statutory cap. However, “equal protection is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.” Beach Commc’ns, Inc., 508 U.S. at 313, 113 S. Ct. at 2101. The legislature identified a legitimate governmental purpose in passing the statutory cap, namely to reduce the cost of medical malpractice 3

Available at http://www.myfloridahouse.gov/Sections/Documents/loaddoc.aspx?PublicationType=Committee s&CommitteeId=2147&Session=2003&DocumentType=General%20Publications&FileName=2 103.pdf#xml=http://search/texis/search/pdfhi.txt?query=Report+of+Select+Committee+on+Medi cal+Liability+Insurance&pr=PROD_MFHMain&rdepth=0&order=r&mode=admin&cq=&id=44 8e02b99 (last visited May 26, 2011). Pursuant to Internal Operating Procedure 10, Citation to Internet Materials in an Opinion, under Federal Rule of Appellate Procedure 36, a copy of the internet materials cited in this opinion is available at the Eleventh Circuit Court of Appeal’s Clerk’s Office. 14

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premiums and health care. See Fla. Stat. § 766.201. The means that Florida chose, a per incident cap on noneconomic damages, bears a rational relationship to that end. The Florida legislature could reasonably have concluded that such a cap would reduce damage awards and in turn make medical malpractice insurance more affordable and healthcare more available. We therefore conclude that Florida’s statutory cap on noneconomic damages for medical malpractice claims does not violate the Equal Protection Clause of the United States Constitution. B. Plaintiffs next argue that Florida’s statutory cap constitutes a taking of property without just compensation in violation of Article X, Section 6 of the Florida Constitution and the Fifth Amendment of the United States Constitution. We disagree. The Takings Clause of the United States Constitution provides that “private property” shall not “be taken for public use, without just compensation.” U.S. Const. Amend V. The Takings Clause “does not undertake . . . to socialize all losses, but those only which result from a taking of property.” United States v. Willow River Power Co., 324 U.S. 499, 502, 65 S. Ct. 761, 764 (1945). “[A]lthough a vested cause of action is property and is protected from arbitrary interference, [a litigant] has no property, in the constitutional sense, in any particular form of remedy . . . .” Gibbes v. Zimmerman, 290 U.S. 326, 332, 54 S. 15

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Ct. 140, 142 (1993) (analyzing challenge to a state statute under the Due Process Clause). Florida’s statutory cap does not interfere with a vested right. “No person has a vested interest in any rule of law, entitling him to insist that it shall remain unchanged for his benefit.” New York Cent. R.R. v. White, 243 U.S. 188, 198, 37 S. Ct. 247, 250 (1917). Moreover, Florida passed its statutory cap in 2003, long before the Plaintiffs’ cause of action for the medical negligence that took place in 2006 vested. See 2003 Fla. Sess. Law Serv. 416 (West). We therefore conclude that Florida’s cap does not constitute a taking under the United States Constitution. Nor is the cap a taking under well-established Florida constitutional law. Florida’s Takings Clause provides that “[n]o private property shall be taken except for a public purpose and with full compensation therefor paid to each owner or secured by deposit in the registry of the court and available to the owner.” Fla. Const. Art. X, § 6(a). “Florida law is well established that the right to sue on an inchoate cause of action—one that has not yet accrued—is not a vested right because no one has a vested right in the common law . . . .” Raphael v. Shecter, 18 So. 3d 1152, 1157 (Fla. 4th DCA 2009) (quotation marks omitted). Because Florida’s statutory cap does not deprive Plaintiffs of a vested right, there is no taking within the meaning of the Takings Clause of the Florida Constitution. 16

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V. Because this case raises important questions about the interpretation and application of Florida constitutional law in areas that remain unsettled, we will not decide Plaintiffs’ remaining state constitutional claims,4 but rather will grant Plaintiffs’ motion to certify questions relating to those claims to the Florida Supreme Court.5 See Fla. Const. art. V, § 3(b)(6); Fla. R. App. P. 9.150 (“On either its own motion or that of a party, . . . a United States court of appeals may certify a question of law to the Supreme Court of Florida if the answer is determinative of the cause and there is no controlling precedent of the Supreme

We deny Plaintiffs’ motion to certify questions about the constitutionality of the cap under the Taking Clause, Article X, Section 6(a), of the Florida Constitution and about the application of the cap to the facts of this case. We have addressed the merits of those claims under Florida law. We also deny Plaintiffs’ motion to certify a question about the constitutionality of the cap under the Due Process Clause, Article I, Section 9, of the Florida Constitution. Plaintiffs waived their due process claim by failing to address it on the merits in their briefs. See Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989) (noting that an issue is waived if the party fails to argue the merits of the issue in its briefs). 5

The particular phrasing used in the certified question is not to restrict the Supreme Court’s considerations of the problems involved and the issues as the Supreme Court perceives them to be in its analysis of the record certified in this case. This latitude extends to the Supreme Court’s restatement of the issue or issues and the manner in which the answers are to be given, whether as a comprehensive whole or in subordinate or even contingent parts. Anderson v. Jackson Mun. Airport Auth., 645 F.2d 401, 403 n.5 (5th Cir. 1981) (quotation marks omitted). In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted as binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981. 17

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Court of Florida.”). “Where there is doubt in the interpretation of state law, a federal court may certify the question to the state supreme court to avoid making unnecessary Erie guesses and to offer the state court the opportunity to interpret or change existing law.” Union Planters Bank, N.A. v. New York, 436 F.3d 1305, 1306 (11th Cir. 2006) (quotation marks omitted). We certify the following questions to the Supreme Court of Florida: (1) Does the statutory cap on noneconomic damages, Fla. Stat. § 766.118, violate the right to equal protection under Article I, Section 2 of the Florida Constitution? (2) Does the statutory cap on noneconomic damages, Fla. Stat. § 766.118, violate the right of access to the courts under Article I, Section 21 of the Florida Constitution? (3) Does the statutory cap on noneconomic damages, Fla. Stat. § 766.118, violate the right to trial by jury under Article I, Section 22 of the Florida Constitution?6 (4) Does the statutory cap on noneconomic damages, Fla. Stat. § 766.118, violate the separation of powers guaranteed by Article II, Section 3 and Article V, Section 1 of the Florida Constitution? 6

The District Court concluded that “because this is an FTCA case, the plaintiffs had no right to trial by jury in the first place, and the court therefore has no occasion to consider [Plaintiffs’ argument that the cap violates the right to trial by jury].” Plaintiffs argue that the District Court did have occasion to consider their argument because the FTCA waives sovereign immunity and authorizes tort actions against the United States “in the same manner and to the same extent as a private individual under like circumstances.” See United States v. Orleans, 425 U.S. 807, 813, 96 S. Ct. 1971, 1975 (1976). Plaintiffs argue that, if the statutory cap violates the right to jury trial in state suits against private parties, the cap is void in the state courts, therefore, it is void in the FTCA context as well. We agree with Plaintiffs and therefore certify this question to the Florida Supreme Court. 18

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VI. We affirm the district court’s application of Florida’s statutory cap on noneconomic damages. We also conclude that the cap comports with the Equal Protection and Takings Clauses of the United States Constitution. We conclude that the statute does not constitute a taking in violation of the Takings Clause of the Florida Constitution, and we grant Plaintiff’s motion to certify questions regarding Plaintiffs’ remaining challenges to the cap under state constitutional law to the Florida Supreme Court. AFFIRMED, in part, and QUESTIONS CERTIFIED. Plaintiffs’ Motion to Certify Questions, GRANTED, in part, and DENIED, in part.

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Journal of the Senate Number 2—Special Session D

Wednesday, August 13, 2003

CONTENTS Call to Order . . . . . . . . . . . . . . . . . . . . . . Committee Substitutes, First Reading . . . Communication From Committee . . . . . . . House Messages, Final Action . . . . . . . . . House Messages, First Reading . . . . . . . . Motions Relating to Committee Reference Reports of Committees . . . . . . . . . . . . . . . Special Order Calendar . . . . . . . . . . . . . . Votes Recorded . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . .

SPECIAL ORDER CALENDAR . . . . . . . . .

. . . . . . . . .

18, ... ... ... ... ... ... 18, ...

On motion by Senator Jones, by two-thirds vote—

22 26 25 28 27 18 25 22 28

CS for SB 2-D—A bill to be entitled An act relating to medical incidents; providing legislative findings; creating s. 395.0056, F.S.; requiring the Agency for Health Care Administration to review complaints submitted if the defendant is a hospital; amending s. 395.0191, F.S.; deleting a requirement that persons act in good faith to avoid liability or discipline for their actions regarding the awarding of staff membership or clinical privileges; amending s. 395.0197, F.S., relating to internal risk management programs; requiring a system for notifying patients that they are the subject of an adverse incident; requiring that an appropriately trained person give notice; requiring licensed facilities to annually report certain information about health care practitioners for whom they assume liability; requiring the Agency for Health Care Administration and the Department of Health to annually publish statistics about licensed facilities that assume liability for health care practitioners; repealing the requirement that licensed facilities notify the agency within 1 business day of the occurrence of certain adverse incidents; repealing s. 395.0198, F.S., which provides a public records exemption for adverse incident notifications; creating s. 395.1012, F.S.; requiring facilities to adopt a patient safety plan; providing requirements for a patient safety plan; requiring facilities to appoint a patient safety officer and a patient safety committee and providing duties for the patient safety officer and committee; creating s. 395.1051, F.S.; requiring certain facilities to notify patients about adverse incidents under specified conditions; creating s. 456.0575, F.S.; requiring licensed health care practitioners to notify patients about adverse incidents under certain conditions; providing civil immunity for certain participants in quality improvement processes; defining the terms “patient safety data” and “patient safety organization”; providing for use of patient safety data by a patient safety organization; providing limitations on use of patient safety data; providing for protection of patient-identifying information; providing for determination of whether the privilege applies as asserted; providing that an employer may not take retaliatory action against an employee who makes a good-faith report concerning patient safety data; amending s. 456.013, F.S.; requiring, as a condition of licensure and license renewal, that physicians and physician assistants complete continuing education relating to misdiagnosed conditions as part of a continuing education course on prevention of medical errors; amending s. 456.025, F.S.; eliminating certain restrictions on the setting of licensure renewal fees for health care practitioners; amending s. 456.039, F.S.; revising requirements for the information furnished to the Department of Health for licensure purposes; amending s. 456.041, F.S., relating to practitioner profiles; requiring the Department of Health to compile certain specified information in a practitioner profile; establishing a timeframe within which certain health care practitioners must report specified information; providing for disciplinary action and a fine for untimely submissions; deleting provisions that provide that a profile need not indicate whether a criminal history check was performed to corroborate information in the profile; authorizing the department or regulatory board to investigate any information received; requiring the department to provide an easy-to-read narrative explanation concerning final disciplinary action taken against a practitioner; requiring a hyperlink to each final order on the department’s website which provides information about disciplinary actions; requiring the department to provide a hyperlink to certain comparison reports pertaining to claims experience; requiring the department to include the date that a reported disciplinary action was taken by a licensed facility and a characterization of the practitioner’s conduct that resulted in the action; deleting provisions requiring the department to consult with a regulatory board before including certain information in a health care practitioner’s profile; providing a penalty for failure to comply with the timeframe for verifying and correcting a practitioner profile; requiring the department to add a statement to a practitioner profile when the profile information

CALL TO ORDER The Senate was called to order by President King at 10:00 a.m. A quorum present—36: Mr. President Alexander Argenziano Aronberg Atwater Bennett Bullard Campbell Carlton Clary Constantine Cowin

Crist Dawson Diaz de la Portilla Dockery Fasano Garcia Geller Haridopolos Hill Jones Klein Lawson

Lee Lynn Margolis Posey Pruitt Saunders Sebesta Smith Villalobos Webster Wilson Wise

Excused: Senators Miller, Siplin and Wasserman Schultz

PRAYER The following prayer was offered by Senator Wise: Dear God, As Senators, Lord, we come together today to ask you for divine wisdom and guidance in all that we do in this Senate. We pray that we will only do and say that which would be honorable and righteous in your eyes and by your standards. Lord, please help us now as we have important decisions to make that will have a profound effect upon the citizens of this great state. Lord, there are Senators who are not present with us today. Please keep them safe and protect them from harm. We ask this in your most Holy and Precious Name. And all the people said, “Amen.”

PLEDGE Senator Garcia led the Senate in the pledge of allegiance to the flag of the United States of America.

MOTIONS RELATING TO COMMITTEE REFERENCE On motion by Senator Pruitt, by two-thirds vote SB 4-D was withdrawn from the Committee on Appropriations.

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August 13, 2003

JOURNAL OF THE SENATE

has not been verified by the practitioner; requiring the department to provide, in the practitioner profile, an explanation of disciplinary action taken and the reason for sanctions imposed; requiring the department to include a hyperlink to a practitioner’s website when requested; providing that practitioners licensed under ch. 458 or ch. 459, F.S., shall have claim information concerning an indemnity payment greater than a specified amount posted in the practitioner profile; amending s. 456.042, F.S.; providing for the update of practitioner profiles; designating a timeframe within which a practitioner must submit new information to update his or her profile; amending s. 456.049, F.S., relating to practitioner reports on professional liability claims and actions; revising requirements for a practitioner to report claims or actions for medical malpractice; amending s. 456.051, F.S.; establishing the responsibility of the Department of Health to provide reports of professional liability actions and bankruptcies; requiring the department to include such reports in a practitioner’s profile within a specified period; amending s. 456.057, F.S.; allowing the department to obtain patient records by subpoena without the patient’s written authorization, in specified circumstances; amending s. 456.072, F.S.; providing for determining the amount of any costs to be assessed in a disciplinary proceeding; amending s. 456.073, F.S.; authorizing the Department of Health to investigate certain paid claims made on behalf of practitioners licensed under ch. 458 or ch. 459, F.S.; amending procedures for certain disciplinary proceedings; providing a deadline for raising issues of material fact; providing a deadline relating to notice of receipt of a request for a formal hearing; excepting gross or repeated malpractice and standard-of-care violations from the 6-year limitation on investigation or filing of an administrative complaint; amending s. 456.077, F.S.; providing a presumption related to an undisputed citation; revising requirements under which the Department of Health may issue citations as an alternative to disciplinary procedures against certain licensed health care practitioners; amending s. 456.078, F.S.; revising standards for determining which violations of the applicable professional practice act are appropriate for mediation; amending s. 458.320, F.S., relating to financial responsibility requirements for medical physicians; requiring maintenance of financial responsibility as a condition of licensure of medical physicians; providing for payment of any outstanding judgments or settlements pending at the time a physician is suspended by the Department of Health; requiring the department to suspend the license of a medical physician who has not paid, up to the amounts required by any applicable financial responsibility provision, any outstanding judgment, arbitration award, other order, or settlement; amending s. 459.0085, F.S., relating to financial responsibility requirements for osteopathic physicians; requiring maintenance of financial responsibility as a condition of licensure of osteopathic physicians; providing for payment of any outstanding judgments or settlements pending at the time an osteopathic physician is suspended by the Department of Health; requiring that the department suspend the license of an osteopathic physician who has not paid, up to the amounts required by any applicable financial responsibility provision, any outstanding judgment, arbitration award, other order, or settlement; amending s. 458.331, F.S., relating to grounds for disciplinary action against a physician; redefining the term “repeated malpractice”; revising the minimum amount of a claim against a licensee which will trigger a departmental investigation; requiring that administrative orders issued by an administrative law judge or board for certain practice violations by physicians specify certain information; creating s. 458.3311, F.S.; establishing emergency procedures for disciplinary actions; amending s. 459.015, F.S., relating to grounds for disciplinary action against an osteopathic physician; redefining the term “repeated malpractice”; amending conditions that necessitate a departmental investigation of an osteopathic physician; revising the minimum amount of a claim against a licensee which will trigger a departmental investigation; creating s. 459.0151, F.S.; establishing emergency procedures for disciplinary actions; amending s. 461.013, F.S., relating to grounds for disciplinary action against a podiatric physician; redefining the term “repeated malpractice”; amending the minimum amount of a claim against such a physician which will trigger a departmental investigation; requiring that administrative orders issued by an administrative law judge or board for certain practice violations by physicians specify certain information; creating s. 461.0131, F.S.; establishing emergency procedures for disciplinary actions; amending s. 466.028, F.S., relating to grounds for disciplinary action against a dentist or a dental hygienist; redefining the term “dental malpractice”; revising the minimum amount of a claim against a dentist which will trigger a departmental investigation; requiring that the Division of Administrative Hearings designate administrative law judges who have special qualifications for hearings involving certain health care practitioners; creating ss. 1004.08 and 1005.07, F.S.; requiring schools, col-

leges, and universities to include material on patient safety in their curricula if the institution awards specified degrees; directing the Agency for Health Care Administration to conduct or contract for a study to determine what information to provide to the public comparing hospitals, based on inpatient quality indicators developed by the federal Agency for Healthcare Research and Quality; requiring the Agency for Health Care Administration to conduct a study on patient safety; requiring a report and submission of findings to the Legislature; requiring the Office of Program Policy Analysis and Government Accountability and the Office of the Auditor General to conduct an audit of the health care practitioner disciplinary process and closed claims and report to the Legislature; creating a workgroup to study the health care practitioner disciplinary process; providing for workgroup membership; providing that the workgroup deliver its report by January 1, 2004; amending s. 624.462, F.S.; authorizing health care providers to form a commercial self-insurance fund; amending s. 627.062, F.S.; prohibiting the submission of medical malpractice insurance rate filings to arbitration; providing additional requirements for medical malpractice insurance rate filings; providing that portions of judgments and settlements entered against a medical malpractice insurer for bad-faith actions or for punitive damages against the insurer, as well as related taxable costs and attorney’s fees, may not be included in an insurer’s base rate; providing for review of rate filings by the Office of Insurance Regulation for excessive, inadequate, or unfairly discriminatory rates; requiring insurers to apply a discount based on the health care provider’s loss experience; requiring the Office of Insurance Regulation to calculate a presumed factor that reflects the impact of medical malpractice legislation on rates; requiring insurers to make a rate filing reflecting such presumed factor; allowing for deviations; requiring that rates remain in effect until new rate filings are approved; requiring that the Office of Program Policy Analysis and Government Accountability study the feasibility of authorizing the Office of the Public Counsel to represent the public in medical malpractice rate hearings; amending s. 627.357, F.S.; providing guidelines for the formation and regulation of certain self-insurance funds; amending s. 627.4147, F.S.; revising certain notification criteria for medical and osteopathic physicians; requiring prior notification of a rate increase; creating s. 627.41495, F.S.; providing for notice to policyholders of certain medical malpractice rate filings; amending s. 627.912, F.S.; revising requirements for the medical malpractice closed claim reports that must be filed with the Office of Insurance Regulation; applying such requirements to additional persons and entities; providing for access by the Department of Health to such reports; providing for the imposition of a fine or disciplinary action for failing to report; requiring that reports obtain additional information; authorizing the Financial Services Commission to adopt rules; requiring that the Office of Insurance Regulation prepare summaries of closed claim reports of prior years and prepare an annual report and analysis of closed claim and insurer financial reports; amending s. 641.19, F.S.; revising definitions; providing that health care providers providing services pursuant to coverage provided under a health maintenance organization contract are not employees or agents of the health maintenance organization; providing exceptions; amending s. 641.51, F.S.; proscribing a health maintenance organization’s right to control the professional judgment of a physician; providing that a health maintenance organization shall not be vicariously liable for the medical negligence of a health care provider; providing exceptions; amending s. 766.102, F.S; revising requirements for health care providers who offer corroborating medical expert opinion and expert testimony in medical negligence actions; prohibiting contingency fees for an expert witness; requiring certification that an expert witness not previously have been found guilty of fraud or perjury; amending s. 766.106, F.S.; specifying sanctions for failure to cooperate with presuit investigations; requiring the execution of medical release to allow taking of unsworn statements from claimant’s treating physicians; imposing limits on use of such statements; deleting provisions relating to voluntary arbitration in conflict with s. 766.207, F.S.; revising requirements for presuit notice and for an insurer’s or self-insurer’s response to a claim; requiring that a claimant provide the Agency for Health Care Administration with a copy of the complaint alleging medical negligence against licensed facilities; requiring that the agency review such complaints for licensure noncompliance; permitting written questions during informal discovery; amending s. 766.108, F.S.; providing for mandatory mediation; amending ss. 766.1115, 766.112, 766.113, 766.201, 766.303, 768.21, F.S.; revising references to “medical malpractice” to “medical negligence”; amending s. 766.113, F.S.; requiring that a specific statement be included in all medical negligence settlement agreements; creating s. 766.118, F.S.; limiting noneconomic damages in medical negligence actions; providing legislative findings and intent regarding provision of emergency medical services and care; creating s.

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766.1185, F.S.; providing that an action for bad faith may not be brought against a medical malpractice insurer if such insurer offers to pay policy limits and meets other specified conditions of settlement within a specified time period; providing for factors to be considered in determining whether a medical malpractice insurer has acted in bad faith; providing for the delivery of a copy of an amended witness list to the insurer of a defendant health care provider; providing a limitation on the amount of damages which may be awarded to certain third parties in actions alleging bad faith by a medical malpractice insurer; amending s. 766.202, F.S.; redefining the terms “economic damages,” “medical expert,” and “noneconomic damages”; defining the term “health care provider”; creating s. 766.2021, F.S.; providing a limitation on damages against insurers, prepaid limited health service organizations, health maintenance organizations, or prepaid health clinics for medical negligence of contracted health care providers; requiring actions against such entities to be brought pursuant to ch. 766, F.S.; amending s. 766.203, F.S.; providing for discovery of presuit medical expert opinion; amending s. 766.206, F.S.; providing for dismissal of a claim under certain circumstances; requiring the court to make certain reports concerning a medical expert who fails to meet qualifications; amending s. 766.207, F.S.; providing for the applicability of the Wrongful Death Act and general law to arbitration awards; amending s. 766.209, F.S.; revising applicable damages available in voluntary binding arbitration relating to claims of medical negligence; creating s. 768.0981, F.S.; providing a limitation on damages arising from vicarious liability for insurers, prepaid limited health service organizations, health maintenance organizations, and prepaid health clinics for actions of a health care provider; amending s. 768.13, F.S.; revising guidelines for immunity from liability under the “Good Samaritan Act”; amending s. 768.28, F.S.; providing that health care practitioners furnishing medical services to student athletes for intercollegiate athletics under specified circumstances will be considered agents of a state university board of trustees; amending s. 768.77, F.S.; prescribing a method for itemization of specific categories of damages awarded in medical malpractice actions; preserving sovereign immunity and the abrogation of certain joint and several liability; amending s. 1006.20, F.S.; requiring completion of a uniform participation physical evaluation and history form incorporating recommendations of the American Heart Association; deleting revisions to procedures for students’ physical examinations; requiring the Department of Health to study the efficacy and constitutionality of medical review panels; requiring a report; amending s. 391.025, F.S.; adding infants receiving compensation awards as eligible for Children’s Medical Services health services; amending s. 391.029, F.S.; providing financial eligibility criteria for Children’s Medical Services; amending s. 766.304, F.S.; limiting the use of civil actions when claimants accept awards from the Florida Birth-Related Neurological Injury Compensation Plan; amending s. 766.305, F.S.; deleting a requirement for provision of certain information in a petition filed with the Florida Birth-Related Neurological Injury Compensation Plan; providing for service of copies of such petition to certain participants; requiring that a claimant provide the Florida Birth-Related Neurological Injury Compensation Association with certain information within 10 days after filing such petition; amending s. 766.309, F.S.; allowing for claims against the association to be bifurcated; amending s. 766.31, F.S.; providing for a death benefit for an infant in the amount of $10,000; limiting liability of the claimant for expenses and attorney’s fees; amending s. 766.314, F.S.; revising obsolete terms; providing procedures by which hospitals in certain counties may pay the annual fees for participating physicians and nurse midwives; providing for annually assessing participating physicians; requiring that the Office of Program Policy Analysis and Government Accountability study and report to the Legislature on requirements for coverage by the Florida Birth-Related Neurological Injury Compensation Association; providing appropriations and authorizing positions; providing for construction of the act in pari materia with laws enacted during the 2003 Regular Session or a 2003 special session of the Legislature; providing for severability; providing effective dates.

August 13, 2003

have on rates for medical malpractice insurance and shall issue a notice informing all insurers writing medical malpractice coverage of such presumed factor. In determining the presumed factor, the office shall use generally accepted actuarial techniques and standards provided in this section in determining the expected impact on losses, expenses, and investment income of the insurer. (b) For any coverage for medical malpractice insurance subject to this chapter issued or renewed on or after October 1, 2003, every insurer shall reduce its rates to levels that are at least 20 percent less than the rates for the same coverage that were in effect on January 1, 2003. (c) Notwithstanding any provision of law to the contrary, between October 1, 2003, and October 1, 2004, rates reduced pursuant to paragraph (b) may only be increased if the director of the Office of Insurance Regulation finds, after a hearing, that an insurer or self-insurer or the Florida Medical Malpractice Joint Underwriting Association is unable to earn a fair rate of return, taking into consideration a presumed factor reflecting the impact on medical malpractice rates calculated by the Office of Insurance Regulation. (d) Commencing October 1, 2003, insurance rates for medical malpractice subject to this chapter must be approved by the director of the Office of Insurance Regulation prior to being used. (e) Any separate affiliate of an insurer is subject to the provisions of this section. (f) The calculation and notice by the office of the presumed factor pursuant to paragraph (a) is not an order or rule that is subject to chapter 120. If the office enters into a contract with an independent consultant to assist the office in calculating the presumed factor, such contract shall not be subject to the competitive solicitation requirements of s. 287.057. And the title is amended as follows: On page 9, lines 23 through 26, delete those lines and insert: requiring a medical malpractice insurance rate rollback; providing for subsequent increases under certain circumstances; requiring approval for use of certain medical malpractice insurance rates; The vote was: Yeas—8 Aronberg Bullard Campbell

Dawson Hill Klein

Margolis Wilson

Crist Diaz de la Portilla Dockery Fasano Garcia Haridopolos Jones Lawson Lee

Lynn Posey Pruitt Saunders Sebesta Smith Villalobos Webster Wise

Nays—27 Mr. President Alexander Argenziano Atwater Bennett Carlton Clary Constantine Cowin Vote after roll call: Yea—Geller Nay—Peaden Amendment 2 (120088)—On page 94, delete those lines and insert:

—was read the second time by title. Senator Klein moved the following amendments which failed: Amendment 1 (474972)(with title amendment)—On page 93, line 21, through page 95, line 27, delete those lines and insert: (8)(a) No later than 60 days after the effective date of medical malpractice legislation enacted during the 2003 Special Session D of the Florida Legislature, the office shall calculate a presumed factor that reflects the impact that the changes contained in such legislation will

2. No later than 60 days after the office issues its notice of the presumed rate change factor under subparagraph 1., each insurer writing medical malpractice coverage in this state shall submit to the office a rate filing for medical malpractice insurance, which will take effect no later than January 1, 2004, and apply to policies issued or renewed on or after January 1, 2004. Except as authorized under paragraph (b), the filing shall reflect an overall rate reduction at least as great as the presumed factor determined under subparagraph 1.

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The vote was:

1.a. Shows proof that the unsatisfied judgment has been paid in the amount specified in this subparagraph; or

Yeas—7 Aronberg Bullard Campbell

Hill Klein

2.b. Furnishes the department with a copy of a timely filed notice of appeal and either:

Margolis Wilson

a.(I) A copy of a supersedeas bond properly posted in the amount required by law; or

Nays—24 Mr. President Alexander Argenziano Bennett Carlton Clary Constantine Cowin

Diaz de la Portilla Dockery Fasano Garcia Haridopolos Jones Lee Lynn

b.(II) An order from a court of competent jurisdiction staying execution on the final judgment pending disposition of the appeal.

Posey Pruitt Saunders Sebesta Smith Villalobos Webster Wise

(b)2. The Department of Health shall issue an emergency order suspending the license of any licensee who, after 30 days following receipt of a notice from the Department of Health, has failed to: satisfy a medical malpractice claim against him or her; furnish the Department of Health a copy of a timely filed notice of appeal; furnish the Department of Health a copy of a supersedeas bond properly posted in the amount required by law; or furnish the Department of Health an order from a court of competent jurisdiction staying execution on the final judgment pending disposition of the appeal.

Vote after roll call: Yea—Geller Nay—Crist, Peaden Senator Campbell moved the following amendments which failed: Amendment 3 (124652)—On page 132, between lines 22 and 23, insert: (8) Each limitation on noneconomic damages set forth in this section shall be adjusted at the end of each calendar year to reflect the cumulative annual percentage change in the consumer price index. As used in this subsection, the term “consumer price index” means the most comprehensive index of consumer prices available for this state from the Bureau of Labor Statistics of the United States Department of Labor. Amendment 4 (702218)—On page 59, line 5, through page 63, line 7, delete those lines and insert: 7. The licensee must shall submit biennially to the department certification stating compliance with the provisions of this paragraph. The licensee must shall, upon request, demonstrate to the department information verifying compliance with this paragraph. A licensee who meets the requirements of this paragraph must shall be required either to post notice in the form of a sign prominently displayed in the reception area and clearly noticeable by all patients or provide a written statement to any person to whom medical services are being provided. The Such sign or statement must shall state that: Under Florida law, physicians are generally required to carry medical malpractice insurance or otherwise demonstrate financial responsibility to cover potential claims for medical malpractice. However, certain part-time physicians who meet state requirements are exempt from the financial responsibility law. YOUR DOCTOR MEETS THESE REQUIREMENTS AND HAS DECIDED NOT TO CARRY MEDICAL MALPRACTICE INSURANCE. This notice is provided pursuant to Florida law. (g) Any person holding an active license under this chapter who agrees to meet all of the following criteria: (6)(a)1. Upon the entry of an adverse final judgment arising from a medical malpractice arbitration award, from a claim of medical malpractice either in contract or tort, or from noncompliance with the terms of a settlement agreement arising from a claim of medical malpractice either in contract or tort, the licensee shall pay the judgment creditor the lesser of the entire amount of the judgment with all accrued interest or either $100,000, if the physician is licensed pursuant to this chapter but does not maintain hospital staff privileges, or $250,000, if the physician is licensed pursuant to this chapter and maintains hospital staff privileges, within 60 days after the date such judgment became final and subject to execution, unless otherwise mutually agreed to in writing by the parties. Such adverse final judgment shall include any cross-claim, counterclaim, or claim for indemnity or contribution arising from the claim of medical malpractice. Upon notification of the existence of an unsatisfied judgment or payment pursuant to this subparagraph, the department shall notify the licensee by certified mail that he or she shall be subject to disciplinary action unless, within 30 days from the date of mailing, he or she either:

(c)3. Upon the next meeting of the probable cause panel of the board following 30 days after the date of mailing the notice of disciplinary action to the licensee, the panel shall make a determination of whether probable cause exists to take disciplinary action against the licensee pursuant to paragraph (a) subparagraph 1. (d)4. If the board determines that the factual requirements of paragraph (a) subparagraph 1. are met, it shall take disciplinary action as it deems appropriate against the licensee. Such disciplinary action shall include, at a minimum, probation of the license with the restriction that the licensee must make payments to the judgment creditor on a schedule determined by the board to be reasonable and within the financial capability of the physician. Notwithstanding any other disciplinary penalty imposed, the disciplinary penalty may include suspension of the license for a period not to exceed 5 years. In the event that an agreement to satisfy a judgment has been met, the board shall remove any restriction on the license. (e)5. The licensee has completed a form supplying necessary information as required by the department. A licensee who meets the requirements of this paragraph shall be required either to post notice in the form of a sign prominently displayed in the reception area and clearly noticeable by all patients or to provide a written statement to any person to whom medical services are being provided. Such sign or statement shall state: “Under Florida law, physicians are generally required to carry medical malpractice insurance or otherwise demonstrate financial responsibility to cover potential claims for medical malpractice. YOUR DOCTOR HAS DECIDED NOT TO CARRY MEDICAL MALPRACTICE INSURANCE. This is permitted under Florida law subject to certain conditions. Florida law imposes penalties against noninsured physicians who fail to satisfy adverse judgments arising from claims of medical malpractice. This notice is provided pursuant to Florida law.” (7)(6) Any deceptive, untrue, or fraudulent representation by the licensee with respect to any provision of this section shall result in permanent disqualification from any exemption to mandated financial responsibility as provided in this section and shall constitute grounds for disciplinary action under s. 458.331. (8)(7) Any licensee who relies on any exemption from the financial responsibility requirement shall notify the department, in writing, of any change of circumstance regarding his or her qualifications for such exemption and shall demonstrate that he or she is in compliance with the requirements of this section. (9) Notwithstanding any other provision of this section, the department shall suspend the license of any physician against whom has been entered a final judgment, arbitration award, or other order or who has entered into a settlement agreement to pay damages arising out of a claim for medical malpractice, if all appellate remedies have been exhausted and payment up to the amounts required by this section has not been made within 30 days after the entering of such judgment, award, or order or agreement, until proof of payment is received by the department or a payment schedule has been agreed upon by the physician and the claimant and presented to the department. This subsection does not apply to

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a physician who has met the financial responsibility requirements in paragraphs (1)(b) and (2)(b). (10)(8) The board shall adopt rules to implement the provisions of this section. Senators Campbell and Aronberg offered the following amendment which was moved by Senator Campbell and failed: Amendment 5 (531896)(with title amendment)—On page 106, line 1 through page 108, line 15, delete sections 46 and 47 and renumber subsequent sections. And the title is amended as follows: On page 10, line 26, through page 11, line 7, delete those lines and insert: 766.102, F.S.; revising Senator Smith moved the following amendment which was adopted: Amendment 6 (725240)—On page 130, line 15, delete that line and insert: providing services as provided in s. 401.265, or providing services pursuant to obligations imposed by 42 U.S.C. s. 1395dd to persons with On motion by Senator Jones, further consideration of CS for SB 2-D as amended was deferred.

RECESS By direction of the President, the Senate recessed at 12:04 p.m. to reconvene at 1:15 p.m.

AFTERNOON SESSION The Senate was called to order by the President at 1:21 p.m. A quorum present—37: Mr. President Alexander Argenziano Aronberg Atwater Bennett Bullard Campbell Carlton Clary Constantine Cowin Crist

Dawson Diaz de la Portilla Dockery Fasano Garcia Geller Haridopolos Hill Jones Klein Lawson Lee Lynn

Margolis Peaden Posey Pruitt Saunders Sebesta Smith Villalobos Webster Wilson Wise

SPECIAL ORDER CALENDAR, continued The Senate resumed consideration of— CS for SB 2-D—A bill to be entitled An act relating to medical incidents; providing legislative findings; creating s. 395.0056, F.S.; requiring the Agency for Health Care Administration to review complaints submitted if the defendant is a hospital; amending s. 395.0191, F.S.; deleting a requirement that persons act in good faith to avoid liability or discipline for their actions regarding the awarding of staff membership or clinical privileges; amending s. 395.0197, F.S., relating to internal risk management programs; requiring a system for notifying patients that they are the subject of an adverse incident; requiring that an appropriately trained person give notice; requiring licensed facilities to annually report certain information about health care practitioners for whom they assume liability; requiring the Agency for Health Care Administration and the Department of Health to annually publish statistics about licensed facilities that assume liability for health care practitioners; repealing the requirement that licensed facilities notify the agency within 1 business day of the occurrence of certain adverse incidents; repealing s. 395.0198, F.S., which provides a public records exemption for adverse incident notifications; creating s. 395.1012, F.S.; requiring facilities to adopt a patient safety plan; providing requirements for a patient safety plan; requiring facilities to appoint a patient safety officer and a patient safety committee and providing duties for the

August 13, 2003

patient safety officer and committee; creating s. 395.1051, F.S.; requiring certain facilities to notify patients about adverse incidents under specified conditions; creating s. 456.0575, F.S.; requiring licensed health care practitioners to notify patients about adverse incidents under certain conditions; providing civil immunity for certain participants in quality improvement processes; defining the terms “patient safety data” and “patient safety organization”; providing for use of patient safety data by a patient safety organization; providing limitations on use of patient safety data; providing for protection of patient-identifying information; providing for determination of whether the privilege applies as asserted; providing that an employer may not take retaliatory action against an employee who makes a good-faith report concerning patient safety data; amending s. 456.013, F.S.; requiring, as a condition of licensure and license renewal, that physicians and physician assistants complete continuing education relating to misdiagnosed conditions as part of a continuing education course on prevention of medical errors; amending s. 456.025, F.S.; eliminating certain restrictions on the setting of licensure renewal fees for health care practitioners; amending s. 456.039, F.S.; revising requirements for the information furnished to the Department of Health for licensure purposes; amending s. 456.041, F.S., relating to practitioner profiles; requiring the Department of Health to compile certain specified information in a practitioner profile; establishing a timeframe within which certain health care practitioners must report specified information; providing for disciplinary action and a fine for untimely submissions; deleting provisions that provide that a profile need not indicate whether a criminal history check was performed to corroborate information in the profile; authorizing the department or regulatory board to investigate any information received; requiring the department to provide an easy-to-read narrative explanation concerning final disciplinary action taken against a practitioner; requiring a hyperlink to each final order on the department’s website which provides information about disciplinary actions; requiring the department to provide a hyperlink to certain comparison reports pertaining to claims experience; requiring the department to include the date that a reported disciplinary action was taken by a licensed facility and a characterization of the practitioner’s conduct that resulted in the action; deleting provisions requiring the department to consult with a regulatory board before including certain information in a health care practitioner’s profile; providing a penalty for failure to comply with the timeframe for verifying and correcting a practitioner profile; requiring the department to add a statement to a practitioner profile when the profile information has not been verified by the practitioner; requiring the department to provide, in the practitioner profile, an explanation of disciplinary action taken and the reason for sanctions imposed; requiring the department to include a hyperlink to a practitioner’s website when requested; providing that practitioners licensed under ch. 458 or ch. 459, F.S., shall have claim information concerning an indemnity payment greater than a specified amount posted in the practitioner profile; amending s. 456.042, F.S.; providing for the update of practitioner profiles; designating a timeframe within which a practitioner must submit new information to update his or her profile; amending s. 456.049, F.S., relating to practitioner reports on professional liability claims and actions; revising requirements for a practitioner to report claims or actions for medical malpractice; amending s. 456.051, F.S.; establishing the responsibility of the Department of Health to provide reports of professional liability actions and bankruptcies; requiring the department to include such reports in a practitioner’s profile within a specified period; amending s. 456.057, F.S.; allowing the department to obtain patient records by subpoena without the patient’s written authorization, in specified circumstances; amending s. 456.072, F.S.; providing for determining the amount of any costs to be assessed in a disciplinary proceeding; amending s. 456.073, F.S.; authorizing the Department of Health to investigate certain paid claims made on behalf of practitioners licensed under ch. 458 or ch. 459, F.S.; amending procedures for certain disciplinary proceedings; providing a deadline for raising issues of material fact; providing a deadline relating to notice of receipt of a request for a formal hearing; excepting gross or repeated malpractice and standard-of-care violations from the 6-year limitation on investigation or filing of an administrative complaint; amending s. 456.077, F.S.; providing a presumption related to an undisputed citation; revising requirements under which the Department of Health may issue citations as an alternative to disciplinary procedures against certain licensed health care practitioners; amending s. 456.078, F.S.; revising standards for determining which violations of the applicable professional practice act are appropriate for mediation; amending s. 458.320, F.S., relating to financial responsibility requirements for medical physicians; requiring maintenance of financial responsibility as a condition of licensure of medical

App. 29

August 13, 2003

JOURNAL OF THE SENATE

physicians; providing for payment of any outstanding judgments or settlements pending at the time a physician is suspended by the Department of Health; requiring the department to suspend the license of a medical physician who has not paid, up to the amounts required by any applicable financial responsibility provision, any outstanding judgment, arbitration award, other order, or settlement; amending s. 459.0085, F.S., relating to financial responsibility requirements for osteopathic physicians; requiring maintenance of financial responsibility as a condition of licensure of osteopathic physicians; providing for payment of any outstanding judgments or settlements pending at the time an osteopathic physician is suspended by the Department of Health; requiring that the department suspend the license of an osteopathic physician who has not paid, up to the amounts required by any applicable financial responsibility provision, any outstanding judgment, arbitration award, other order, or settlement; amending s. 458.331, F.S., relating to grounds for disciplinary action against a physician; redefining the term “repeated malpractice”; revising the minimum amount of a claim against a licensee which will trigger a departmental investigation; requiring that administrative orders issued by an administrative law judge or board for certain practice violations by physicians specify certain information; creating s. 458.3311, F.S.; establishing emergency procedures for disciplinary actions; amending s. 459.015, F.S., relating to grounds for disciplinary action against an osteopathic physician; redefining the term “repeated malpractice”; amending conditions that necessitate a departmental investigation of an osteopathic physician; revising the minimum amount of a claim against a licensee which will trigger a departmental investigation; creating s. 459.0151, F.S.; establishing emergency procedures for disciplinary actions; amending s. 461.013, F.S., relating to grounds for disciplinary action against a podiatric physician; redefining the term “repeated malpractice”; amending the minimum amount of a claim against such a physician which will trigger a departmental investigation; requiring that administrative orders issued by an administrative law judge or board for certain practice violations by physicians specify certain information; creating s. 461.0131, F.S.; establishing emergency procedures for disciplinary actions; amending s. 466.028, F.S., relating to grounds for disciplinary action against a dentist or a dental hygienist; redefining the term “dental malpractice”; revising the minimum amount of a claim against a dentist which will trigger a departmental investigation; requiring that the Division of Administrative Hearings designate administrative law judges who have special qualifications for hearings involving certain health care practitioners; creating ss. 1004.08 and 1005.07, F.S.; requiring schools, colleges, and universities to include material on patient safety in their curricula if the institution awards specified degrees; directing the Agency for Health Care Administration to conduct or contract for a study to determine what information to provide to the public comparing hospitals, based on inpatient quality indicators developed by the federal Agency for Healthcare Research and Quality; requiring the Agency for Health Care Administration to conduct a study on patient safety; requiring a report and submission of findings to the Legislature; requiring the Office of Program Policy Analysis and Government Accountability and the Office of the Auditor General to conduct an audit of the health care practitioner disciplinary process and closed claims and report to the Legislature; creating a workgroup to study the health care practitioner disciplinary process; providing for workgroup membership; providing that the workgroup deliver its report by January 1, 2004; amending s. 624.462, F.S.; authorizing health care providers to form a commercial self-insurance fund; amending s. 627.062, F.S.; prohibiting the submission of medical malpractice insurance rate filings to arbitration; providing additional requirements for medical malpractice insurance rate filings; providing that portions of judgments and settlements entered against a medical malpractice insurer for bad-faith actions or for punitive damages against the insurer, as well as related taxable costs and attorney’s fees, may not be included in an insurer’s base rate; providing for review of rate filings by the Office of Insurance Regulation for excessive, inadequate, or unfairly discriminatory rates; requiring insurers to apply a discount based on the health care provider’s loss experience; requiring the Office of Insurance Regulation to calculate a presumed factor that reflects the impact of medical malpractice legislation on rates; requiring insurers to make a rate filing reflecting such presumed factor; allowing for deviations; requiring that rates remain in effect until new rate filings are approved; requiring that the Office of Program Policy Analysis and Government Accountability study the feasibility of authorizing the Office of the Public Counsel to represent the public in medical malpractice rate hearings; amending s. 627.357, F.S.; providing guidelines for the formation and regulation of certain self-insurance funds; amending s. 627.4147, F.S.; revising certain notification criteria for medical and osteopathic physicians; requiring prior notification of a

rate increase; creating s. 627.41495, F.S.; providing for notice to policyholders of certain medical malpractice rate filings; amending s. 627.912, F.S.; revising requirements for the medical malpractice closed claim reports that must be filed with the Office of Insurance Regulation; applying such requirements to additional persons and entities; providing for access by the Department of Health to such reports; providing for the imposition of a fine or disciplinary action for failing to report; requiring that reports obtain additional information; authorizing the Financial Services Commission to adopt rules; requiring that the Office of Insurance Regulation prepare summaries of closed claim reports of prior years and prepare an annual report and analysis of closed claim and insurer financial reports; amending s. 641.19, F.S.; revising definitions; providing that health care providers providing services pursuant to coverage provided under a health maintenance organization contract are not employees or agents of the health maintenance organization; providing exceptions; amending s. 641.51, F.S.; proscribing a health maintenance organization’s right to control the professional judgment of a physician; providing that a health maintenance organization shall not be vicariously liable for the medical negligence of a health care provider; providing exceptions; amending s. 766.102, F.S; revising requirements for health care providers who offer corroborating medical expert opinion and expert testimony in medical negligence actions; prohibiting contingency fees for an expert witness; requiring certification that an expert witness not previously have been found guilty of fraud or perjury; amending s. 766.106, F.S.; specifying sanctions for failure to cooperate with presuit investigations; requiring the execution of medical release to allow taking of unsworn statements from claimant’s treating physicians; imposing limits on use of such statements; deleting provisions relating to voluntary arbitration in conflict with s. 766.207, F.S.; revising requirements for presuit notice and for an insurer’s or self-insurer’s response to a claim; requiring that a claimant provide the Agency for Health Care Administration with a copy of the complaint alleging medical negligence against licensed facilities; requiring that the agency review such complaints for licensure noncompliance; permitting written questions during informal discovery; amending s. 766.108, F.S.; providing for mandatory mediation; amending ss. 766.1115, 766.112, 766.113, 766.201, 766.303, 768.21, F.S.; revising references to “medical malpractice” to “medical negligence”; amending s. 766.113, F.S.; requiring that a specific statement be included in all medical negligence settlement agreements; creating s. 766.118, F.S.; limiting noneconomic damages in medical negligence actions; providing legislative findings and intent regarding provision of emergency medical services and care; creating s. 766.1185, F.S.; providing that an action for bad faith may not be brought against a medical malpractice insurer if such insurer offers to pay policy limits and meets other specified conditions of settlement within a specified time period; providing for factors to be considered in determining whether a medical malpractice insurer has acted in bad faith; providing for the delivery of a copy of an amended witness list to the insurer of a defendant health care provider; providing a limitation on the amount of damages which may be awarded to certain third parties in actions alleging bad faith by a medical malpractice insurer; amending s. 766.202, F.S.; redefining the terms “economic damages,” “medical expert,” and “noneconomic damages”; defining the term “health care provider”; creating s. 766.2021, F.S.; providing a limitation on damages against insurers, prepaid limited health service organizations, health maintenance organizations, or prepaid health clinics for medical negligence of contracted health care providers; requiring actions against such entities to be brought pursuant to ch. 766, F.S.; amending s. 766.203, F.S.; providing for discovery of presuit medical expert opinion; amending s. 766.206, F.S.; providing for dismissal of a claim under certain circumstances; requiring the court to make certain reports concerning a medical expert who fails to meet qualifications; amending s. 766.207, F.S.; providing for the applicability of the Wrongful Death Act and general law to arbitration awards; amending s. 766.209, F.S.; revising applicable damages available in voluntary binding arbitration relating to claims of medical negligence; creating s. 768.0981, F.S.; providing a limitation on damages arising from vicarious liability for insurers, prepaid limited health service organizations, health maintenance organizations, and prepaid health clinics for actions of a health care provider; amending s. 768.13, F.S.; revising guidelines for immunity from liability under the “Good Samaritan Act”; amending s. 768.28, F.S.; providing that health care practitioners furnishing medical services to student athletes for intercollegiate athletics under specified circumstances will be considered agents of a state university board of trustees; amending s. 768.77, F.S.; prescribing a method for itemization of specific categories of damages awarded in medical malpractice actions; preserving sovereign immunity and the abrogation of certain joint and several liability; amending s. 1006.20, F.S.; requiring completion of a uniform participation physical

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evaluation and history form incorporating recommendations of the American Heart Association; deleting revisions to procedures for students’ physical examinations; requiring the Department of Health to study the efficacy and constitutionality of medical review panels; requiring a report; amending s. 391.025, F.S.; adding infants receiving compensation awards as eligible for Children’s Medical Services health services; amending s. 391.029, F.S.; providing financial eligibility criteria for Children’s Medical Services; amending s. 766.304, F.S.; limiting the use of civil actions when claimants accept awards from the Florida Birth-Related Neurological Injury Compensation Plan; amending s. 766.305, F.S.; deleting a requirement for provision of certain information in a petition filed with the Florida Birth-Related Neurological Injury Compensation Plan; providing for service of copies of such petition to certain participants; requiring that a claimant provide the Florida Birth-Related Neurological Injury Compensation Association with certain information within 10 days after filing such petition; amending s. 766.309, F.S.; allowing for claims against the association to be bifurcated; amending s. 766.31, F.S.; providing for a death benefit for an infant in the amount of $10,000; limiting liability of the claimant for expenses and attorney’s fees; amending s. 766.314, F.S.; revising obsolete terms; providing procedures by which hospitals in certain counties may pay the annual fees for participating physicians and nurse midwives; providing for annually assessing participating physicians; requiring that the Office of Program Policy Analysis and Government Accountability study and report to the Legislature on requirements for coverage by the Florida Birth-Related Neurological Injury Compensation Association; providing appropriations and authorizing positions; providing for construction of the act in pari materia with laws enacted during the 2003 Regular Session or a 2003 special session of the Legislature; providing for severability; providing effective dates. —which was previously considered and amended this day. Senator Smith moved the following amendment which was adopted: Amendment 7 (114390)—On page 131, line 12, delete that line and insert: to obligations imposed by ss. 395.1041 or 401.45, or obligations imposed by 42 U.S.C. s. 1395dd to persons Senator Campbell moved the following amendment which failed: Amendment 8 (052980)(with title amendment)—On page 137, between lines 9 and 10, insert: (5) Subsection (1) does not apply when, based upon information known earlier to the insurer or its representatives, the insurer could and should have settled the claim within policy limits had it acted fairly and honestly toward its insured and with due regard for the insured’s interests. And the title is amended as follows: On page 12, line 26, following the semicolon (;) insert: providing applicability; Senator Posey moved the following amendment which failed: Amendment 9 (983282)(with title amendment)—On page 171, between lines 6 and 7, insert:

August 13, 2003

then certified to the House. The vote on passage was: Yeas—32 Mr. President Alexander Argenziano Aronberg Atwater Bennett Bullard Carlton Clary Constantine Cowin

Crist Dawson Diaz de la Portilla Dockery Fasano Garcia Haridopolos Jones Lawson Lee Lynn

Margolis Peaden Posey Pruitt Saunders Sebesta Smith Villalobos Webster Wise

Hill

Klein

Nays—4 Campbell Geller

SB 4-D—A bill to be entitled An act relating to corrections; amending s. 216.262, F.S.; providing the Department of Corrections a mechanism for additional positions and operational funds if the inmate population of the department exceeds the projections of the Criminal Justice Estimating Conference; amending s. 216.292, F.S.; permitting the Governor to initiate prison construction under certain circumstances; providing restrictions; providing additional operations and fixed capital outlay appropriations for the 2003-2004 fiscal year; providing purposes for operating appropriations; providing for waiver of certain competitive bid and procurement requirements for specified projects under specified circumstances; providing an appropriation to the Correctional Privatization Commission for the 2003-2004 fiscal year; requiring the Correctional Privatization Commission to issue a request for proposals; requiring the Correctional Privatization Commission to provide the Legislature with a ranked list of proposals by March 1, 2004; authorizing the execution of a contract upon final approval by the Legislature; authorizing the Department of Corrections to contract for the construction of certain beds consistent with s. 216.311, F.S.; providing for the reversion of certain funds appropriated in Senate Bill 2A; providing an effective date. —was read the second time by title. Amendments were considered and adopted to conform SB 4-D to HB 3-D. Pending further consideration of SB 4-D as amended, on motion by Senator Crist, by two-thirds vote HB 3-D was withdrawn from the Committee on Appropriations. On motion by Senator Crist, by two-thirds vote—

THE PRESIDENT PRESIDING

HB 3-D—A bill to be entitled An act relating to corrections; amending s. 216.262, F.S.; providing the Department of Corrections a mechanism for additional positions and operational funds if the inmate population of the department exceeds the projections of the July 9, 2003, Criminal Justice Estimating Conference; amending s. 216.292, F.S.; permitting the Governor to initiate prison construction under certain circumstances; requiring review and approval by the Legislative Budget Commission; providing the Department of Corrections additional operations and fixed capital outlay appropriations for fiscal year 2003-2004 and specifying the purposes of the operations appropriations; providing for waiver of certain competitive bid and procurement requirements for specified projects under certain circumstances; requiring a report under certain circumstances; authorizing the Department of Corrections to contract for the construction of an annex at the Santa Rosa Correctional Institution; providing for the reversion of certain funds appropriated in the 2003-2004 General Appropriations Act; providing for construction of the act in pari materia with laws enacted during the 2003 Regular Session or a 2003 special session of the Legislature; providing an effective date.

On motion by Senator Jones, by two-thirds vote CS for SB 2-D as amended was read the third time by title, passed, ordered engrossed and

—a companion measure, was substituted for SB 4-D as amended and by two-thirds vote read the second time by title.

Section 87. Sections 395.0056, 395.1012, 395.1051, 456.0575, 458.3311, 459.0151, 461.0131, 1004.06, 1005.07, 627.41495, 766.118, 766.1185, 766.2021, and 768.0981, Florida Statutes, as created by this act, and sections 1, 9, 10, 32, 41, 55, 69, and 86 of this act expire September 15, 2005, and must be reviewed by the Legislature before that date. (Redesignate subsequent sections.) And the title is amended as follows: On page 15, line 25, following the second semicolon (;) insert: providing for future repeal and review of ss. 395.0056, 395.1012, 395.1051, 456.0575, 458.3311, 459.0151, 461.0131, 1004.06, 1005.07, 627.41495, 766.118, 766.1185, 766.2021, 768.0981, F.S., and specified sections of the act; SENATOR CARLTON PRESIDING

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August 13, 2003

JOURNAL OF THE SENATE

SENATOR CARLTON PRESIDING THE PRESIDENT PRESIDING On motion by Senator Crist, by two-thirds vote HB 3-D was read the third time by title, passed and certified to the House. The vote on passage was: Yeas—37 Mr. President Alexander Argenziano Aronberg Atwater Bennett Bullard Campbell Carlton Clary Constantine Cowin Crist

Dawson Diaz de la Portilla Dockery Fasano Garcia Geller Haridopolos Hill Jones Klein Lawson Lee Lynn

Margolis Peaden Posey Pruitt Saunders Sebesta Smith Villalobos Webster Wilson Wise

Nays—None

REPORTS OF COMMITTEES The Committee on Rules and Calendar submits the following bills to be placed on the Special Order Calendar for Wednesday, August 13, 2003: CS for SB 2-D, SB 4-D Respectfully submitted, Tom Lee, Chair

The Committee on Health, Aging, and Long-Term Care recommends a committee substitute for the following: SB 2-D The bill with committee substitute attached was placed on the calendar.

REPORTS OF SUBCOMMITTEES The Appropriations Subcommittee on Criminal Justice recommends the following pass: SB 4-D The bill was referred to the Committee on Appropriations under the original reference.

COMMUNICATION FROM COMMITTEE August 13, 2003 President, James E. “Jim” King, Jr. Dear President King: At your direction, the Senate Committee on Judiciary met on July 14-15, 2003 for the purpose of taking testimony under oath from parties involved in the medical malpractice debate. The purpose of taking sworn testimony was to enable the committee members to separate fact from political rhetoric. A court reporter was present during the committee meetings and the hearings were transcribed. The original transcript is on file with the Secretary of the Senate and is available to the public on the Senate’s website. The sworn testimony revealed: • There are more doctors licensed in the State of Florida today than there were five years ago, according to the Department of Health. • First Professionals Insurance Company is making a profit for its shareholders. • According to First Professionals Insurance Company the insurance rate problem is cyclical. • Florida is the most profitable state in the union for First Professionals Insurance Company.

• Missouri, which as of 2002 had a $557,000 cap, is having problems, according to First Professionals Insurance Company. • There are no more medical malpractice claims in Florida than there were 20 years ago, even though there are more doctors, according to First Professionals Insurance Company. • The Governor’s Select Task Force on Healthcare Professional Liability Insurance based its conclusions regarding increased claims on the Milliman Study which was paid for by the Florida Hospital Association. Their conclusion contradicts data submitted to and compiled by the Office of Insurance Regulation. • The Florida Bar has received only three complaints of a member lawyer filing a frivolous lawsuit involving a medical malpractice claim in the past five years. • Medical malpractice liability insurance is too expensive in the perception of the insured health care providers who must pay the premiums. • There is no evidence that there has been an increase in medical malpractice closed claims or actual payouts. • There is a consensus among multiple parties, including First Professionals Insurance Company and the Florida Medical Association, that there are not a large number of frivolous medical malpractice lawsuits. • There is no guarantee that any cap on noneconomic damages would lower premium rates. • There is no statistical evidence of a crisis regarding access to physicians. • The number of medical license applications in Florida has increased in the past few years (from 2,261 in 1999 to 2,658 through the first 6 months in 2003). • Only three hospital emergency rooms have closed since 1999, and there is no evidence that any of the closures are directly related to medical malpractice insurance availability or affordability. • According to the President of First Professionals Insurance Company, First Professionals Insurance Company is profitable and will continue to operate in Florida with or without any tort reform measures. • Office of Insurance Regulation actuaries depend on honesty of insurance company data to justify rate increases and do not audit rate filings. • The Florida Medical Association and First Professionals Insurance Company have a business relationship. First Professionals Insurance Company has paid the Florida Medical Association $500,000 per year for the past several years as an “endorsement fee.” First Professionals Insurance Company also provides remuneration and stock options to its board members who include Florida Medical Association officers and directors and past officers and directors. • According to the Agency for Health Care Administration, there have not been any known occurrences where the Agency for Health Care Administration had to redirect a patient because of a hospital closure due to the medical malpractice crisis. • First Professionals Insurance Company is continuing to write new policies and there is an internal “cut-off” number that the company will not exceed because they cannot meet the capital requirements. • That although the Task Force voted to recommend a cap on noneconomic damages of $250,000 in medical malpractice cases, members of that Task Force had requested an opportunity to take an additional vote to allow the Task Force to have some flexibility in recommending a cap that would be constitutional. Such a vote was never taken. • Many sections of the Task Force report were written by “stakeholders” for the medical, hospital and insurance interests. These statements contain but a few of the discrepancies and inconsistencies between earlier unsworn statements and the sworn testimony regarding the medical malpractice issue. These statements also are not conclusions based on my opinion or that of other legislators. Rather these conclusions are based on the evidence and sworn testimony given by the stakeholders. It is for this reason that the transcript of the hearings and the supplemental affidavits must be read and considered in its entirety.

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Sincerely, J. Alex Villalobos, Chair

JOURNAL OF THE SENATE COMMITTEE SUBSTITUTES

FIRST READING By the Committee on Health, Aging, and Long-Term Care; and Senators Jones, King, Clary, Diaz de la Portilla, Lawson, Lee, Peaden, Pruitt, Saunders, Sebesta and Smith— CS for SB 2-D—A bill to be entitled An act relating to medical incidents; providing legislative findings; creating s. 395.0056, F.S.; requiring the Agency for Health Care Administration to review complaints submitted if the defendant is a hospital; amending s. 395.0191, F.S.; deleting a requirement that persons act in good faith to avoid liability or discipline for their actions regarding the awarding of staff membership or clinical privileges; amending s. 395.0197, F.S., relating to internal risk management programs; requiring a system for notifying patients that they are the subject of an adverse incident; requiring that an appropriately trained person give notice; requiring licensed facilities to annually report certain information about health care practitioners for whom they assume liability; requiring the Agency for Health Care Administration and the Department of Health to annually publish statistics about licensed facilities that assume liability for health care practitioners; repealing the requirement that licensed facilities notify the agency within 1 business day of the occurrence of certain adverse incidents; repealing s. 395.0198, F.S., which provides a public records exemption for adverse incident notifications; creating s. 395.1012, F.S.; requiring facilities to adopt a patient safety plan; providing requirements for a patient safety plan; requiring facilities to appoint a patient safety officer and a patient safety committee and providing duties for the patient safety officer and committee; creating s. 395.1051, F.S.; requiring certain facilities to notify patients about adverse incidents under specified conditions; creating s. 456.0575, F.S.; requiring licensed health care practitioners to notify patients about adverse incidents under certain conditions; providing civil immunity for certain participants in quality improvement processes; defining the terms “patient safety data” and “patient safety organization”; providing for use of patient safety data by a patient safety organization; providing limitations on use of patient safety data; providing for protection of patient-identifying information; providing for determination of whether the privilege applies as asserted; providing that an employer may not take retaliatory action against an employee who makes a good-faith report concerning patient safety data; amending s. 456.013, F.S.; requiring, as a condition of licensure and license renewal, that physicians and physician assistants complete continuing education relating to misdiagnosed conditions as part of a continuing education course on prevention of medical errors; amending s. 456.025, F.S.; eliminating certain restrictions on the setting of licensure renewal fees for health care practitioners; amending s. 456.039, F.S.; revising requirements for the information furnished to the Department of Health for licensure purposes; amending s. 456.041, F.S., relating to practitioner profiles; requiring the Department of Health to compile certain specified information in a practitioner profile; establishing a timeframe within which certain health care practitioners must report specified information; providing for disciplinary action and a fine for untimely submissions; deleting provisions that provide that a profile need not indicate whether a criminal history check was performed to corroborate information in the profile; authorizing the department or regulatory board to investigate any information received; requiring the department to provide an easy-to-read narrative explanation concerning final disciplinary action taken against a practitioner; requiring a hyperlink to each final order on the department’s website which provides information about disciplinary actions; requiring the department to provide a hyperlink to certain comparison reports pertaining to claims experience; requiring the department to include the date that a reported disciplinary action was taken by a licensed facility and a characterization of the practitioner’s conduct that resulted in the action; deleting provisions requiring the department to consult with a regulatory board before including certain information in a health care practitioner’s profile; providing a penalty for failure to comply with the timeframe for verifying and correcting a practitioner profile; requiring the department to add a statement to a practitioner profile when the profile information has not been verified by the practitioner; requiring the department to provide, in the practitioner profile, an explanation of disciplinary action taken and the reason for sanctions imposed; requiring the department to include a hyperlink to a practitioner’s website when requested; providing that practitioners licensed under ch. 458 or ch. 459, F.S., shall have claim information concerning an indemnity payment greater than a specified amount posted in the practitioner profile; amending s.

August 13, 2003

456.042, F.S.; providing for the update of practitioner profiles; designating a timeframe within which a practitioner must submit new information to update his or her profile; amending s. 456.049, F.S., relating to practitioner reports on professional liability claims and actions; revising requirements for a practitioner to report claims or actions for medical malpractice; amending s. 456.051, F.S.; establishing the responsibility of the Department of Health to provide reports of professional liability actions and bankruptcies; requiring the department to include such reports in a practitioner’s profile within a specified period; amending s. 456.057, F.S.; allowing the department to obtain patient records by subpoena without the patient’s written authorization, in specified circumstances; amending s. 456.072, F.S.; providing for determining the amount of any costs to be assessed in a disciplinary proceeding; amending s. 456.073, F.S.; authorizing the Department of Health to investigate certain paid claims made on behalf of practitioners licensed under ch. 458 or ch. 459, F.S.; amending procedures for certain disciplinary proceedings; providing a deadline for raising issues of material fact; providing a deadline relating to notice of receipt of a request for a formal hearing; excepting gross or repeated malpractice and standard-of-care violations from the 6-year limitation on investigation or filing of an administrative complaint; amending s. 456.077, F.S.; providing a presumption related to an undisputed citation; revising requirements under which the Department of Health may issue citations as an alternative to disciplinary procedures against certain licensed health care practitioners; amending s. 456.078, F.S.; revising standards for determining which violations of the applicable professional practice act are appropriate for mediation; amending s. 458.320, F.S., relating to financial responsibility requirements for medical physicians; requiring maintenance of financial responsibility as a condition of licensure of medical physicians; providing for payment of any outstanding judgments or settlements pending at the time a physician is suspended by the Department of Health; requiring the department to suspend the license of a medical physician who has not paid, up to the amounts required by any applicable financial responsibility provision, any outstanding judgment, arbitration award, other order, or settlement; amending s. 459.0085, F.S., relating to financial responsibility requirements for osteopathic physicians; requiring maintenance of financial responsibility as a condition of licensure of osteopathic physicians; providing for payment of any outstanding judgments or settlements pending at the time an osteopathic physician is suspended by the Department of Health; requiring that the department suspend the license of an osteopathic physician who has not paid, up to the amounts required by any applicable financial responsibility provision, any outstanding judgment, arbitration award, other order, or settlement; amending s. 458.331, F.S., relating to grounds for disciplinary action against a physician; redefining the term “repeated malpractice”; revising the minimum amount of a claim against a licensee which will trigger a departmental investigation; requiring that administrative orders issued by an administrative law judge or board for certain practice violations by physicians specify certain information; creating s. 458.3311, F.S.; establishing emergency procedures for disciplinary actions; amending s. 459.015, F.S., relating to grounds for disciplinary action against an osteopathic physician; redefining the term “repeated malpractice”; amending conditions that necessitate a departmental investigation of an osteopathic physician; revising the minimum amount of a claim against a licensee which will trigger a departmental investigation; creating s. 459.0151, F.S.; establishing emergency procedures for disciplinary actions; amending s. 461.013, F.S., relating to grounds for disciplinary action against a podiatric physician; redefining the term “repeated malpractice”; amending the minimum amount of a claim against such a physician which will trigger a departmental investigation; requiring that administrative orders issued by an administrative law judge or board for certain practice violations by physicians specify certain information; creating s. 461.0131, F.S.; establishing emergency procedures for disciplinary actions; amending s. 466.028, F.S., relating to grounds for disciplinary action against a dentist or a dental hygienist; redefining the term “dental malpractice”; revising the minimum amount of a claim against a dentist which will trigger a departmental investigation; requiring that the Division of Administrative Hearings designate administrative law judges who have special qualifications for hearings involving certain health care practitioners; creating ss. 1004.08 and 1005.07, F.S.; requiring schools, colleges, and universities to include material on patient safety in their curricula if the institution awards specified degrees; directing the Agency for Health Care Administration to conduct or contract for a study to determine what information to provide to the public comparing hospitals, based on inpatient quality indicators developed by the federal Agency for Healthcare Research and Quality; requiring the Agency for

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Health Care Administration to conduct a study on patient safety; requiring a report and submission of findings to the Legislature; requiring the Office of Program Policy Analysis and Government Accountability and the Office of the Auditor General to conduct an audit of the health care practitioner disciplinary process and closed claims and report to the Legislature; creating a workgroup to study the health care practitioner disciplinary process; providing for workgroup membership; providing that the workgroup deliver its report by January 1, 2004; amending s. 624.462, F.S.; authorizing health care providers to form a commercial self-insurance fund; amending s. 627.062, F.S.; prohibiting the submission of medical malpractice insurance rate filings to arbitration; providing additional requirements for medical malpractice insurance rate filings; providing that portions of judgments and settlements entered against a medical malpractice insurer for bad-faith actions or for punitive damages against the insurer, as well as related taxable costs and attorney’s fees, may not be included in an insurer’s base rate; providing for review of rate filings by the Office of Insurance Regulation for excessive, inadequate, or unfairly discriminatory rates; requiring insurers to apply a discount based on the health care provider’s loss experience; requiring the Office of Insurance Regulation to calculate a presumed factor that reflects the impact of medical malpractice legislation on rates; requiring insurers to make a rate filing reflecting such presumed factor; allowing for deviations; requiring that rates remain in effect until new rate filings are approved; requiring that the Office of Program Policy Analysis and Government Accountability study the feasibility of authorizing the Office of the Public Counsel to represent the public in medical malpractice rate hearings; amending s. 627.357, F.S.; providing guidelines for the formation and regulation of certain self-insurance funds; amending s. 627.4147, F.S.; revising certain notification criteria for medical and osteopathic physicians; requiring prior notification of a rate increase; creating s. 627.41495, F.S.; providing for notice to policyholders of certain medical malpractice rate filings; amending s. 627.912, F.S.; revising requirements for the medical malpractice closed claim reports that must be filed with the Office of Insurance Regulation; applying such requirements to additional persons and entities; providing for access by the Department of Health to such reports; providing for the imposition of a fine or disciplinary action for failing to report; requiring that reports obtain additional information; authorizing the Financial Services Commission to adopt rules; requiring that the Office of Insurance Regulation prepare summaries of closed claim reports of prior years and prepare an annual report and analysis of closed claim and insurer financial reports; amending s. 641.19, F.S.; revising definitions; providing that health care providers providing services pursuant to coverage provided under a health maintenance organization contract are not employees or agents of the health maintenance organization; providing exceptions; amending s. 641.51, F.S.; proscribing a health maintenance organization’s right to control the professional judgment of a physician; providing that a health maintenance organization shall not be vicariously liable for the medical negligence of a health care provider; providing exceptions; amending s. 766.102, F.S; revising requirements for health care providers who offer corroborating medical expert opinion and expert testimony in medical negligence actions; prohibiting contingency fees for an expert witness; requiring certification that an expert witness not previously have been found guilty of fraud or perjury; amending s. 766.106, F.S.; specifying sanctions for failure to cooperate with presuit investigations; requiring the execution of medical release to allow taking of unsworn statements from claimant’s treating physicians; imposing limits on use of such statements; deleting provisions relating to voluntary arbitration in conflict with s. 766.207, F.S.; revising requirements for presuit notice and for an insurer’s or self-insurer’s response to a claim; requiring that a claimant provide the Agency for Health Care Administration with a copy of the complaint alleging medical negligence against licensed facilities; requiring that the agency review such complaints for licensure noncompliance; permitting written questions during informal discovery; amending s. 766.108, F.S.; providing for mandatory mediation; amending ss. 766.1115, 766.112, 766.113, 766.201, 766.303, 768.21, F.S.; revising references to “medical malpractice” to “medical negligence”; amending s. 766.113, F.S.; requiring that a specific statement be included in all medical negligence settlement agreements; creating s. 766.118, F.S.; limiting noneconomic damages in medical negligence actions; providing legislative findings and intent regarding provision of emergency medical services and care; creating s. 766.1185, F.S.; providing that an action for bad faith may not be brought against a medical malpractice insurer if such insurer offers to pay policy limits and meets other specified conditions of settlement within a specified time period; providing for factors to be considered in determining whether a medical malpractice insurer has acted in bad faith; providing for the delivery of a copy of an amended witness list to the insurer of a

defendant health care provider; providing a limitation on the amount of damages which may be awarded to certain third parties in actions alleging bad faith by a medical malpractice insurer; amending s. 766.202, F.S.; redefining the terms “economic damages,” “medical expert,” and “noneconomic damages”; defining the term “health care provider”; creating s. 766.2021, F.S.; providing a limitation on damages against insurers, prepaid limited health service organizations, health maintenance organizations, or prepaid health clinics for medical negligence of contracted health care providers; requiring actions against such entities to be brought pursuant to ch. 766, F.S.; amending s. 766.203, F.S.; providing for discovery of presuit medical expert opinion; amending s. 766.206, F.S.; providing for dismissal of a claim under certain circumstances; requiring the court to make certain reports concerning a medical expert who fails to meet qualifications; amending s. 766.207, F.S.; providing for the applicability of the Wrongful Death Act and general law to arbitration awards; amending s. 766.209, F.S.; revising applicable damages available in voluntary binding arbitration relating to claims of medical negligence; creating s. 768.0981, F.S.; providing a limitation on damages arising from vicarious liability for insurers, prepaid limited health service organizations, health maintenance organizations, and prepaid health clinics for actions of a health care provider; amending s. 768.13, F.S.; revising guidelines for immunity from liability under the “Good Samaritan Act”; amending s. 768.28, F.S.; providing that health care practitioners furnishing medical services to student athletes for intercollegiate athletics under specified circumstances will be considered agents of a state university board of trustees; amending s. 768.77, F.S.; prescribing a method for itemization of specific categories of damages awarded in medical malpractice actions; preserving sovereign immunity and the abrogation of certain joint and several liability; amending s. 1006.20, F.S.; requiring completion of a uniform participation physical evaluation and history form incorporating recommendations of the American Heart Association; deleting revisions to procedures for students’ physical examinations; requiring the Department of Health to study the efficacy and constitutionality of medical review panels; requiring a report; amending s. 391.025, F.S.; adding infants receiving compensation awards as eligible for Children’s Medical Services health services; amending s. 391.029, F.S.; providing financial eligibility criteria for Children’s Medical Services; amending s. 766.304, F.S.; limiting the use of civil actions when claimants accept awards from the Florida Birth-Related Neurological Injury Compensation Plan; amending s. 766.305, F.S.; deleting a requirement for provision of certain information in a petition filed with the Florida Birth-Related Neurological Injury Compensation Plan; providing for service of copies of such petition to certain participants; requiring that a claimant provide the Florida Birth-Related Neurological Injury Compensation Association with certain information within 10 days after filing such petition; amending s. 766.309, F.S.; allowing for claims against the association to be bifurcated; amending s. 766.31, F.S.; providing for a death benefit for an infant in the amount of $10,000; limiting liability of the claimant for expenses and attorney’s fees; amending s. 766.314, F.S.; revising obsolete terms; providing procedures by which hospitals in certain counties may pay the annual fees for participating physicians and nurse midwives; providing for annually assessing participating physicians; requiring that the Office of Program Policy Analysis and Government Accountability study and report to the Legislature on requirements for coverage by the Florida Birth-Related Neurological Injury Compensation Association; providing appropriations and authorizing positions; providing for construction of the act in pari materia with laws enacted during the 2003 Regular Session or a 2003 special session of the Legislature; providing for severability; providing effective dates.

MESSAGES FROM THE HOUSE OF REPRESENTATIVES FIRST READING The Honorable James E. “Jim” King, Jr., President I am directed to inform the Senate that the House of Representatives has passed HB 3-D as amended and requests the concurrence of the Senate.

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John B. Phelps, Clerk

JOURNAL OF THE SENATE RETURNING MESSAGES—FINAL ACTION

By Representative Kyle and others— HB 3-D—A bill to be entitled An act relating to corrections; amending s. 216.262, F.S.; providing the Department of Corrections a mechanism for additional positions and operational funds if the inmate population of the department exceeds the projections of the July 9, 2003, Criminal Justice Estimating Conference; amending s. 216.292, F.S.; permitting the Governor to initiate prison construction under certain circumstances; requiring review and approval by the Legislative Budget Commission; providing the Department of Corrections additional operations and fixed capital outlay appropriations for fiscal year 2003-2004 and specifying the purposes of the operations appropriations; providing for waiver of certain competitive bid and procurement requirements for specified projects under certain circumstances; requiring a report under certain circumstances; authorizing the Department of Corrections to contract for the construction of an annex at the Santa Rosa Correctional Institution; providing for the reversion of certain funds appropriated in the 2003-2004 General Appropriations Act; providing for construction of the act in pari materia with laws enacted during the 2003 Regular Session or a 2003 special session of the Legislature; providing an effective date. —was referred to the Committee on Appropriations.

August 13, 2003

The Honorable James E. “Jim” King, Jr., President I am directed to inform the Senate that the House of Representatives has passed CS for SB 2-D. John B. Phelps, Clerk The bill contained in the foregoing message was ordered enrolled.

CORRECTION AND APPROVAL OF JOURNAL The Journal of August 12 was corrected and approved.

VOTES RECORDED Senator Wasserman Schultz was recorded as voting “nay” on the following bill which was considered this day: CS for SB 2-D.

ADJOURNMENT On motion by Senator Smith, the Senate in Special Session adjourned sine die at 5:06 p.m.

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