Medical Malpractice Caps Move From the Legislature to the Courts: Will They Survive?
I n 2003, the Florida Legislature imposed statutory caps on noneconomic damages in medical malpractice cases. See F.S. §766.118 (2003). Although the legislature attempted to make findings intended to ensure that the caps would survive constitutional scrutiny, the caps may nevertheless be vulnerable to a constitutional challenge pursuant to the access to courts provision contained in Art. I, §21 of the Florida Constitution.1
Art. I, §21 reads: “SECTION 21. Access to courts. — The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.”
Because this provision is contained within the Declaration of Rights, it creates a fundamental right.2 L egislation that intrudes on a fundamental right is presumptively invalid.3 T hus, the question is whether the statutory caps on noneconomic damages set forth in §766.118 intrude upon the fundamental right of access to courts and, if so, whether the presumption of invalidity can be overcome.
The constitutionality of statutory caps on noneconomic damages was previously addressed by the Supreme Court of Florida in Smith v. Department of Insurance, 507 So. 2d 1080 (Fla. 1987). In the 1986 Tort Reform and Insurance Act, the legislature imposed a $450,000 cap on noneconomic damages.4 T he legislature indicated that it created the cap to abate a commercial liability crisis it found existed at the time.5
Nevertheless, the court concluded that the cap violated the access to courts provision of the Florida Constitution. In so doing, the court reasoned that it was uncontroverted that a right to sue on and recover noneconomic damages of any amount existed at the time the current Florida Constitution was adopted.6 T he court stated that “[t]he right to redress of any injury does not draw a distinction between economic and noneconomic damages nor does Art. I, §21 contain any language that would support the proposition that the right is limited, or may be limited, to suits above or below any given figure.”7 T hus, the court concluded that its decision in Kluger v. White, 281 So. 2d 1 (Fla. 1973), was controlling.8
In Kluger, the court considered the constitutionality of a statute that eliminated tort actions for automobile accidents seeking damages of less than $550. The Kluger court stated:
[W]here a right of access to the courts for redress for a particular injury has been provided by statutory law predating the adoption of the Declaration of Rights of the Constitution of the State of Florida, or where such right has become a part of the common law of the State. . . , the Legislature is without power to abolish such a right without providing a reasonable alternative to protect the rights of the people of the State to redress for injuries, unless the Legislature can show an overpowering public necessity for the abolishment of such right, and no alternative method of meeting such public necessity can be shown.9
The court responded that there was no relevant distinction between the issue in Kluger and the issue in Smith. In Kluger, the legislature tried to limit the right of redress at the bottom of the damages spectrum,10 w hereas in Smith, it tried to restrict the top. The Supreme Court held that both restrictions were impermissible unless one of the Kluger exceptions was met. Consequently, the Smith court looked to whether 1) the statute provided a reasonable alternative remedy or commensurate benefit or 2) the legislature demonstrated that there was an overpowering public necessity for the abolishment of the right and no alternative method of meeting that public necessity.11
The court concluded that the benefits of the statutory $450,000 cap on noneconomic damages were not commensurate; they ran in only one direction. The court reasoned that a medical patient received no benefit from the cap because it was unlikely that a patient would be negligent toward his doctor. The court also concluded that the legislature did not create an alternative remedy and that it was irrelevant to the access to courts analysis that the legislature did not totally abolish the cause of action.12 T he court stated:
Access to courts is granted for the purpose of redressing injuries. A plaintiff who receives a jury verdict for, e.g., $1,000,000, has not received a constitutional redress of injuries if the legislature statutorily, and arbitrarily, caps the recovery at $450,000. Nor, we add, because the jury verdict is being arbitrarily capped, is the plaintiff receiving the constitutional benefit of a jury trial as we have heretofore understood that right. Further, if the legislature may constitutionally cap recovery at $450,000 there is no discernible reason why it could not cap the recovery at some other figure, perhaps $50,000, or $1,000, or even $1. None of these caps would “totally” abolish the right of access to the courts. . . . [I]f it were permissible to restrict the constitutional right by legislative action, without meeting the conditions set forth in Kluger, the constitutional right of access to the courts for redress of injuries would be subordinated to, and a creature of, legislative grace or, as Mr. Smith puts it, “majoritarian whim.” There are political systems where constitutional rights are subordinated to the power of the executive or legislative branches, but ours is not such a system.13
As to the alternative question, the court noted that there was no argument or showing that the cap was the only way to address the public necessity.14
The majority further concluded that it was irrelevant whether there was a rational basis for the cap.15 T o apply a rational basis analysis would be to overlook the fact that the issue is one of a constitutional right that cannot be restricted merely because the legislature deemed it rational to do so. “Rationality only becomes relevant if the legislature provides an alternative remedy or abrogates or restricts the right based on a showing of overpowering public necessity and that no alternative method of meeting that necessity exists.” Therefore, because the legislature did not provide an alternative remedy or commensurate benefit and because there was no argument or showing that the cap was the only way to address the public necessity, the Smith court held that the cap was unconstitutional.16
In contrast, in University of Miami v. Echarte, 618 So. 2d 189 (Fla. 1993), cert. denied, 510 U.S. 915 (1993), the court upheld §§766.207 and 766.209, which provide a monetary cap on noneconomic damages in medical malpractice cases when a party requests arbitration.17 P reliminarily, the court concluded that there was a commensurate benefit to the plaintiff in exchange for the monetary cap in the form of a rapid resolution of the medial malpractice claim through arbitration without the need for proving liability.18 T he court also concluded in dicta, however, that even if the medical malpractice arbitration statutes did not provide a commensurate benefit, the court would find that the statutes satisfy the second prong of the Kluger test.19
The court noted that the preamble to the act passing §§766.207 and 766.209 concluded that the current medical malpractice insurance crisis is an “overpowering public necessity.”20 I n addition, the legislature made a specific factual finding that “[m]edical malpractice liability insurance premiums have increased dramatically in recent years, resulting in increased unavailability of malpractice insurance for some physicians.” The court found that the legislature’s factual and policy findings were supported by findings of the Academic Task Force for Review of the Insurance and Tort Reform Systems. The court stated that the legislature has the final word on declarations of public policy and that the courts are bound to give great weight to legislative factual determinations. Legislative determinations of fact are presumed to be correct and are entitled to deference unless they are clearly erroneous.21 B ecause there was no showing that the findings in the case at hand were clearly erroneous, the court held that the legislature had shown that an “overpowering public necessity” existed.22
The court then turned its attention to the question of whether “no alternative method” for meeting the public necessity could be shown.23 T he court found that the record supported the conclusion that no alternative or less onerous method existed. In doing so, the court recounted the task force’s recommendations concerning solutions to the medical malpractice insurance crisis, which included “civil justice reforms, strength and regulation of the medical profession and a proposal to provide immediate relief for physicians who experienced genuine financial difficulty as a result of high premiums.” The task force concluded that all of those things were necessary to resolve the crisis. Thus, the court stated that its conclusion that there was no alternative or less onerous method of meeting the public necessity was supported by the legislature’s actions in adopting the task force’s recommendations of enacting the arbitration statutes and strengthening regulation of the medical profession.24
The court stated that in determining whether there was no alternative means to meet the public necessity of ending the medical malpractice crisis, it must look to the plan as a whole, rather than focus on one specific part. The court rejected the petitioner’s assertion that an alternative method for reducing claims would be to strengthen professional discipline of physicians with numerous claims. Instead, the court concluded that both the arbitration statute, with its conditional limits on recovery on noneconomic damages, and the strengthened regulation of the medical profession are necessary to meet the medical malpractice insurance crisis. The court also concluded that “no alternative or less onerous method of meeting the crisis has been shown.”25 T hus, the court held that the alternative prong of the Kluger test was satisfied and that §§766.207 and 766.209 were constitutional.26
Justices Shaw and Barkett dissented. Justice Barkett opined that the task force’s recommendations, which were relied upon by the legislature in enacting the caps, did not establish an “overwhelming public necessity” for restricting access to courts.27 I n addition, she concluded that the recommendations did not show that no reasonable alternative existed. Instead, she stated that the task force’s own conclusion was that reducing medical negligence was the best way to resolve the “crisis” and that inadequate discipline of physicians contributed substantially to the problem.28 J ustice Barkett concluded, “[W]hen the problems in the medical malpractice insurance industry arguably can be eased by means much less onerous than restricting the rights of victims of established medical malpractice to address their injuries, I cannot find that ‘no alternative method’ has been shown.”29 C onsequently, Justice Barkett would have found the statutes unconstitutional.30
Likewise, Justice Shaw concluded that the statutes failed the Kluger test and violated the claimant’s right of access to the courts. Justice Shaw noted that all of the justices agreed that the Kluger test applied. He stated that the statutes did not provide a reasonable alternative remedy or commensurate benefit to the claimant in exchange for her common-law right to full “redress for injuries.”31 T hus, he turned his attention to the issue of whether the alternative prong of the Kluger test had been satisfied.32
Justice Shaw concluded that the legislature had shown neither an overpowering public necessity for the caps nor the absence of an alternative method of meeting that necessity. Justice Shaw noted that the task force’s final report, the very document upon which the legislature based its findings, did not conclude that a cap on noneconomic damages was the only solution to the medical malpractice crisis.33 I ndeed, the task force expressly cautioned against any unwarranted conclusions in this regard.34 T herefore, Justice Shaw believed the record lacked competent substantial evidence to show that no alternative method of meeting an overpowering public necessity existed. He stated that the majority cited the reasons why the legislature chose the method it did as if that recitation were an adequate substitute for the required Kluger findings. Justice Shaw disagreed and noted that even the task force pointed to other methods of meeting the alleged public necessity, e.g., vigilant management of medical malpractice.35 T hus, he concluded that the very fact that the legislature considered and rejected other methods of assuaging the medical malpractice insurance liability crisis was additional proof that the Kluger test had not been satisfied. Kluger required that no alternative method be available.36
Justice Shaw contended that the Echarte majority had engrafted a new “no less onerous method” test onto the established “no alternative method” test of Kluger.37 T his, Justice Shaw concluded, was a departure from the burdensome Kluger test. He explained that the test should be burdensome when a constitutionally guaranteed right is being taken away.38
Justice Shaw also disagreed with the majority opinion because it departed from the court’s decision in 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). In Siegel, the court held a statute unconstitutional because even though an overpowering public necessity was shown to exist, the record did not establish that the solution adopted by the legislature was the “only method meeting the medical malpractice crisis and encouraging peer review.”39 T he majority offered no authority for its departure from the holdings of Siegel and Kluger.
Moreover, from Justice Shaw’s perspective, the majority erroneously implied that it was the claimant’s burden to show that no alternative method of meeting a public necessity exists.40 J ustice Shaw said that the court had previously held that the legislature bears this burden.41 C onsequently, Justice Shaw would have held the statutes unconstitutional as a violation of the fundamental right of access to courts.
Applying the analysis developed in Smith and Echarte to §766.188 demonstrates that the new statutory caps may be vulnerable to constitutional attack. There can be no question that §766.118 intrudes upon the fundamental right of access to courts. As a result, the question is whether the legislature provided an alternative remedy or commensurate benefit or demonstrated that there was an overpowering public necessity for abolishing the right to uncapped noneconomic damages and that no alternative method for meeting that public necessity exists.
In contrast to the legislation considered in Echarte, the legislature did not provide an alternative to an absolute cap on noneconomic damages in §766.118 or elsewhere in the recent medical malpractice reform legislation.42 A lthough there are ways to increase the cap beyond the threshold $500,000 depending upon the number and types of defendants sued, an ultimate limit or cap exists at the upper end of the noneconomic damages spectrum.43 N o alternative is available to that limit. Likewise, the legislature did not provide a corresponding benefit to the plaintiffs such as an expedited trial or a lesser burden of proving liability.
Therefore, the question becomes whether an overpowering public need for the caps exists that cannot be met by any method or solution other than the statutorily imposed caps. The answer to that question is not clear.
With the enactment of §766.118, the legislature made a series of stated findings.44 T hose findings include, but are not limited to, the following:
(1) The Legislature finds that Florida is in the midst of a medical malpractice insurance crisis of unprecedented magnitude.
(11) The Legislature finds that making high-quality health care available to the citizens of this state is an overwhelming public necessity. . . .
(12) The Legislature finds that ensuring that physicians continue to practice in Florida is an overwhelming public necessity. . . .
(13) The Legislature finds that ensuring the availability of affordable professional liability insurance for physicians is an overwhelming public necessity. . . .
(14) The Legislature finds, based upon the findings and recommendations of the Governor’s Select Task Force on Healthcare Professional Liability Insurance, the findings and recommendations of various study groups throughout the nation, and the experience of other states, that the overwhelming public necessities of making quality health care available to the citizens of this state, of ensuring that physicians continue to practice in Florida, and of ensuring that those physicians have the opportunity to purchase affordable professional liability insurance cannot be met unless a cap on noneconomic damages is imposed. . . .
(15) The Legislature finds that the high cost of medical malpractice claims can be substantially alleviated by imposing a limitation on noneconomic damages in medical malpractice actions. . . .
(16) The Legislature further finds that there is no alternative measure of accomplishing such result without imposing even greater limits upon the ability of persons to recover damages for medical malpractice. . . .
(17) The Legislature finds that the provisions of this act are naturally and logically connected to each other and to the purpose of making quality health care available to the citizens of Florida. . . .
(18) The Legislature finds that each of the provisions of this act is necessary to alleviate the crisis relating to medical malpractice insurance.45
At first glance, these findings may appear to satisfy the Kluger test in that the legislature found that caps on noneconomic damages are the only way to accomplish the public necessities of ensuring quality health care to Florida’s citizens, providing affordable liability insurance to doctors, and ensuring that doctors continue to practice in Florida. However, that finding is arguably inconsistent with the legislature’s finding that each of the provisions of the act, which pertain to more than just caps,46 i s necessary to alleviate the perceived malpractice crisis. Thus, the legislature’s own findings tend to undermine its assertion that caps on noneconomic damages are the only way to meet the public necessities involved in the medical malpractice insurance crisis.
Assuming these apparent inconsistencies do not automatically render the caps presumptively invalid, the question then becomes whether the legislature’s finding that caps are the only way to meet the stated public necessities are impervious to judicial review. If so, a court considering the constitutionality of the caps would have no alternative but to uphold them.
Legislative findings are not conclusive; they are subject to judicial review.47 T he legislature may not give itself unconstitutional power simply by making false or fictitious recitals or findings.48 & #x201c;The constitutionality of a particular state of facts may be challenged by showing to the court that these facts never existed or have ceased to exist.”49 I n other words, “the findings of fact made by the legislature must actually be findings of fact. ”50
[Legislative findings] 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. Moreover, findings of fact made by the legislature do not carry with them a presumption of correctness if they are obviously contrary to proven and firmly established truths of which courts may take judicial notice. If the subject upon which the legislature makes findings of fact is one which is fairly debatable, the presumption of correctness attaches and remains extant until and unless such findings are challenged and disproved in an appropriate proceeding.51
“In sum, legislative statements of policy and fact do not ‘obviate the need for judicial scrutiny.’”52
Nevertheless, the power and responsibility for creating remedies for public wrongs or evils as they develop in a changing society belong to the legislature and not to the courts.53 T he due process clause cannot be used to secure a court veto of a legislative remedy for evils the legislature has specifically found to exist, unless the facts show the legislature’s action was arbitrary or capricious.54
It has been so frequently said by the courts as to have become a legal apothegm, that courts are not concerned with the mere wisdom or policy of regulatory statutes in the exercise of the police power. The courts concern themselves only with the power to enact the statute. Whether regulatory measures are desirable or adequate to curb the evil aimed at is a legislative power and responsibility, immune from judicial veto so long as constitutional guarantees are preserved.55
Consequently, courts considering the constitutionality of the caps should focus not on the policy behind the caps, but whether the findings of fact and the history of the legislation resulting in those findings are valid.
For example, in North Florida Women’s Health and Counseling Servs., Inc. v. State, Case No. SC01-843, 2003 WL 21546546, *16 (Fla. 2003), the Supreme Court of Florida concluded that the need to scrutinize the legislative statements of policy and fact related to the parental notification of abortion law was born out by the legislative history of the statute itself.56 I n that case, the court found that the legislature made no real attempt to make factual findings; it simply engaged in pro forma hearings to justify the conclusions it sought to reach from the beginning.57 A s a result, the court concluded that it was proper for the trial court to conduct detailed evidentiary hearings to evaluate the actual compelling need for the law.58
Therefore, just because §766.118 asserts that a medical malpractice crisis exists and that the only way to alleviate that crisis is to impose statutory caps on noneconomic damages does not mean that the caps or the legislature’s findings are immune from judicial review. The history of the enactment of §766.118 and the evidence presented to the legislature must be reviewed to determine whether the findings are actual findings of fact. In light of Echarte, however, it is unclear whether a reviewing court should strictly apply Kruger and Siegel to determine whether there were no alternative means of meeting the public necessity or whether it will apply the weaker “no less onerous method” test described in Echarte. Either way, the proceedings in the legislature before the enactment of the caps indicate that they may be vulnerable to a constitutional challenge.
The challenging party would have to conduct a detailed analysis of the findings and recommendations of the Governor’s Select Task Force on Healthcare Professional Liability Insurance and the other various study groups, how those task forces or groups arrived at their findings, and the testimony and other evidence submitted directly to the legislature. The analysis should also include a consideration of whether the witnesses before the task force, study groups, or legislature were under oath and subject to cross-examination, and whether their testimony and other evidence presented supports the ultimate findings of fact.59 I f it can be shown that the legislature’s factual findings are clearly erroneous, arbitrary, or wholly unwarranted,60 t hen the statutory cap on noneconomic damages should be held to be unconstitutional.
Even if the factual findings are ultimately shown not to be clearly erroneous, arbitrary, or wholly unwarranted, however, a rational relationship must still exist between the caps and the alleviation of the medical malpractice crisis.61 I f it can be shown that there is no relationship between medical malpractice insurance rates or access to quality medical care and the specific caps that were adopted, it is possible that the §766.118 caps would fail this analysis and be held unconstitutional for lacking a rational relationship between the stated goal and the means of accomplishing that goal.
Section 766.118 is also vulnerable to a challenge that the statute is unconstitutional as applied.62 O ne argument against the caps was that many of the most seriously injured malpractice plaintiffs would not be able to find an attorney willing to represent them and to advance the costs necessary to fully litigate those plaintiffs’ malpractice claims. As a result, some plaintiffs may only be able to find access to the courts if they are able to afford the expenditures of those costs on their own. For those plaintiffs who cannot afford to advance those costs and who cannot find an attorney willing to do so, the plaintiffs’ access to courts may be denied altogether. Thus, those plaintiffs may have an “as applied” challenge as well as a facial challenge to §766.118.63
Thus, the statutory caps contained within §766.118 of the Florida Statutes are vulnerable to a constitutional challenge and may very well violate Florida citizens’ fundamental right of access to courts. The challenges will no doubt begin soon. Once the courts get involved, it will be interesting to see whether the legislature’s findings and the caps are able to survive.
1 There are a number of other arguments that can be made to challenge the caps such as whether they violate the constitutional rights to trial by jury or to equal protection, but this article will focus only on the access to courts argument.
2 N. Fla. Women’s Health and Counseling Servs., Inc. v. State , Case No. SC01-843, 2003 WL 21546546, *16 (Fla. 2003).
4 Smith, 507 So. 2d. at 1083.
5 Id. at 1084.
6 Id. at 1087.
8 Id. at 1088.
9 Id. at 1088 (quoting Kluger , 281 So. 2d at 4).
10 Kluger involved a discussion of §627.738, which eliminated the traditional right of action in tort for property damage arising out of an automobile accident where the property damage was less than $550. Kluger , 281 So. 2d at 2.
11 Smith, 507 So. 2d at 1088.
13 Id. at 1089.
17 Echarte , 618 So. 2d at 190.
18 Id. at 194–95.
19 Id. at 195.
20 Id. at 196.
22 Id. at 196–97.
23 Id. at 197.
26 Id. at 197–98.
28 Id. at 198–99.
29 Id. at 199 (citations omitted).
30 Id. at 199.
32 Id. at 200.
33 Id. at 200–01.
34 Id. at 201.
36 Id. at 201 ( quoting Kluger , 281 So. 2d at 4–5).
37 Id. at 201.
41 Id. at 201 ( citing Smith , 507 So. 2d at 1088).
42 See 2003 Fla. Sess. Law Serv. Ch. 2003–416 (C.S.S.B. 2-D) (West).
43 See Fla. Stat. §766.118(2)–(5) (2003).
44 2003 Fla. Sess. Law. Serv. Ch. 2003-416, §1 (C.S.S.B. 2-D) (West).
45 See 2003 Fla. Sess. Law Serv. Ch. 2003-416, §1 (C.S.S.B. 2-D) (West).
46 See, e.g., Fla. Stat. §§458.331, 458.3311, 466.028 (2003) (addressing physician disciplinary procedures); Fla. Stat. §627.062 (2003) (dealing with medical malpractice insurance rate standards); Fla. Stat. §766.016 (2003) (referring to presuit filing procedures); Fla. Stat. §768.0981 (2003) (providing immunity from suit to health maintenance organizations).
47 N. Fla. Women’s Health , 2003 WL 21546546, at *10–11; Publix Cleaners, Inc. v. Fla. Dry Cleaning & Laundry Bd. , 32 F. Supp. 31, 33 (S.D. Fla. 1940).
48 Publix Cleaners, Inc. , 32 F. Supp. at 33.
49 Id. at 33 (citations omitted).
50 Moore v. Thompson , 126 So. 2d 543, 549 (Fla. 1960) (citation omitted).
51 Id. at 549–50 (citation omitted).
52 N. Fla. Women’s Health , 2003 WL 21546546, at *11.
53 Publix Cleaners, Inc. , 32 F. Supp. at 33.
54 Id. at 33.
55 Id. at 33–34 (citation omitted).
56 N. Fla. Women’s Health , 2003 WL 21546546, at *11.
57 See id. at *11.
59 See id. at *11.
60 See Moore , 126 So. 2d at 549.
61 See Smith , 507 So. 2d at 1089.
62 Cf. Sittig v. Tallahassee Memorial Reg’l Med. Ctr., Inc. , 567 So. 2d 486 (Fla. 1990) (holding that a bond requirement that was a condition precedent to a lawsuit was unconstitutional as applied where the plaintiff was financially incapable of posting a bond and had no alternative remedy through which to exercise her constitutional right to access to courts).
63 See Sittig , 567 So. 2d at 486.
Tracy S. Carlin is a partner in the law firm of Mills & Carlin, P.A. Previously, she was a litigation partner in the Jacksonville office of Foley & Lardner. Ms. Carlin is board certified in appellate practice. She received her B.A., with honors, from the University of Florida in 1985 and her J.D., with honors, from the University of Florida College of Law in 1988. Mills & Carlin handles civil, criminal, medical malpractice, and family law appeals in the state and federal appellate courts.