Is the Medical Malpractice Insurance Crisis Over? – Challenge to Florida’s Statutory Bar on Recovery of Non-Pecuniary Damages by Adult Children in Wrongful Death Actions

Author: Nathan E. Malone

February 3, 2020 10:00am

Fourteen years after the decision in Mizrahi v. North Miami Medical Center, Ltd. upheld Florida’s bar on recovery of non-pecuniary damages by a decedent’s adult children in wrongful death actions because of medical malpractice, the District Court of Appeal in Estate of McCall v. U.S. declared Florida’s caps on non-economic damages in medical malpractice actions unconstitutional.  The Court in McCall held that the statutory cap on wrongful death damages in medical malpractice cases failed because it imposed unfair and illogical burdens on injured parties when medical malpractice gave rise to multiple claimants.  McCall also held the statutory damage caps did not bear a reasonable relationship to Florida’s objective of addressing the alleged medical malpractice crisis.  A year later, in North Broward County Hospital v. Kalitan, also a District Court of Appeal case, the Court reversed a reduction in a noneconomic damages award declaring the damage caps unconstitutional.

In light of the rulings in McCall and Kalitan, the Supreme Court of Florida accepted jurisdiction in Santiago, et al. v. Rodriguez, M.D.  In Santiago, petitioners Sandra Santiago and the Estate of Ramona Reyes are asking the Court to strike down section 768.21(8) of the Florida Statutes.  Section 768.21(8) excludes medical malpractice cases from those in which adult surviving children have a right to recover noneconomic damages for the wrongful death of a parent.  The petitioners argue that, since the District Court of Appeal declared noneconomic damage caps unconstitutional in two prior cases, so too should the preclusion of adult children from the class of persons entitled to recover noneconomic damages in a wrongful death case because of medical malpractice be deemed unconstitutional.

The McCall court engaged in its own analysis of the number of physicians in Florida, noting an increase since the Mizrahi decision, finding there was no longer any crisis, and that the damages cap were simply not logically related to the State’s objective.  However, a cap on the amount of non-economic damages recoverable in a given case is different than the question of who is entitled to recover those damages. Thus, the Santiago court is faced with a different question than was addressed in McCall and Kalitan, although petitioners want the court to treat them the same.

Briefs in Santiago are due on January 27, 2020, and it will be interesting to see how the court handles this question, in addition to addressing whether an inquiry into the economics of the issue in Florida really reveals the medical malpractice insurance crisis is over.



  1. Sandra Santiago, et al., v. Francisco A. Rodriguez, M.D., SC-19-1909
  2. Mizrahi v. North Miami Medical Center, Ltd. (2000) 761 So.2d 1040
  3. North Broward Hospital District v. Kalitan (2015) 174 So.3d 403
  4. Estate of McCall v. U.S. (2014) 134 So.3d 894
  5. https://www.law360.com/articles/1228742/personal-injury-and-med-mal-cases-to-watch-in-2020
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