Commentary: Florida Supreme Court crowns itself fact-finder and policymaker on malpractice


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  • July 17, 2017

On June 8, in North Broward Hospital District v. Kalitan, the Florida Supreme Court ruled that caps on noneconomic damages (pain and suffering) in medical malpractice lawsuits violated the equal protection clause. Mostly, the court said that the caps did not pass the “rational basis test,” where a challenged law must be rationally related to a legitimate government interest.

By deciding the Legislature had no rational basis for imposing the caps, the court crowned itself fact-finder and policymaker, rejecting all of the Legislature’s work and its role under our system of government.

Under the rational basis test, the court is supposed to defer to the Legislature if there is any “rational basis” in the record. Here, the court found there was no conceivable rational basis for the Legislature’s action.

Let’s take a look at the record. In 2002, the Governor’s Select Task Force on Healthcare Professional Liability Insurance spent months traveling around the state, listening to all interested parties, gathering relevant data, and analyzing trends. What they observed and documented was alarming:

  • In 2002, the average liability premium per doctor in Florida was 55 percent higher than the national average.
  • For the period from 1996 to 2002, average insurance premiums in Florida shot up 64 percent compared to the national average increase of 26 percent.
  • The number of insurance companies in Florida had dropped from 66 in the late 1990s to just 12 by 2002. Of the 12, only four companies were routinely issuing liability insurance policies.

The final report stated that “the recommendation that will have the greatest long-term impact on the healthcare provider liability insurance rates, and thus eliminate the crises of availability and affordability of health care in Florida, was a cap on noneconomic damages.”

After conducting its own hearings and review, the Legislature agreed with this conclusion and passed its version of caps on noneconomic damages.

Courts have previously held that under a rational basis test, “[t]he burden is upon the party challenging the statute … to show that there is no conceivable factual predicate which would rationally support the classification under attack” and that “a legislative choice is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data.”

Even Justice Barbara Pariente, in a similar opinion from 2014, Estate of McCall v. United States, agreed that, “there is simply no precedent for this court to engage in its own independent evaluation and reweighing of the facts” under a rational basis test.

Yet, in Kalitan, Pariente joined in Justice Jorge Labarga’s opinion that “because there is no evidence of a continuing medical malpractice insurance crisis justifying the arbitrary and invidious discrimination between medical malpractice victims, there is no rational relationship between the personal injury noneconomic damage caps in section 766.118 and alleviating this purported crisis.”

Justice Ricky Polston said it best in his dissent, joined by Justices Charles Canady and C. Alan Lawson:

“The majority just discards and ignores all of the Legislature’s work and fact-finding. But, under our constitutional system, it is the Legislature, not this Court, that is entitled to make laws as a matter of policy based upon the facts it finds… It is the Legislature’s task to decide whether a medical malpractice crisis exists, whether a medical malpractice crisis has abated, and whether the Florida Statutes should be amended accordingly.”

If the court could still find, after all that fact-finding, that the Legislature’s conclusions were irrational, then any future medical-malpractice reform will need to focus even more squarely on the frequency and severity of medical-malpractice claims. In the meantime, the likelihood of a return to the medical-malpractice crises of the last decade will grow.

William Large is the president of the Florida Justice Reform Institute.