FL Supreme Court Overturns Statutory Cap on Non-Economic Damages

Instead of transferring Mrs. McCall to a more specialized OB-GYN Department, the Family Practice group continued to provide medical care. A local Air Force hospital was temporarily unavailable for obstetric and delivery services, so Mrs. McCall's attending physicians effected a transfer to the Fort Walton Beach Medical Center instead. There, the Air Force Family Practice physicians continued to treat Mrs. McCall for hypertension, and induced labor.

Complications developed and the treating physicians consulted an Air Force obstetrician, Dr. Archibald, to determine his availability for an emergency Caesarian section. Dr. Archibald was performing another surgery, however, and would not be available until after he finished that procedure. The Air Force family physicians prepared Mrs. McCall for her surgery but did not call any other obstetricians to determine if one was available to provide immediate medical care.

On Feb. 22, Dr. Archibald arrived to perform the C-section, but left the hospital after being advised that Mrs. McCall's contractions had resumed and the attending family physicians had decided to allow labor to proceed. At 1:05 a.m. on Feb. 23, 2006, Mrs. McCall delivered a healthy baby boy. Shortly thereafter, family members who visited Michelle expressed concern about the amount of blood she had lost during delivery. In response, medical personnel provided repeated assurances that the patient's condition was stable.

Thirty five minutes later, however, the placenta had not delivered as expected, and two Family Practice physicians attempted manual extraction without success. At 2:35 a.m., Dr. Archibald was once again consulted for assistance and arrived within 10 minutes. Dr. Archibald removed the placenta within five minutes of his arrival. By this time, Mrs. McCall's blood pressure began to drop rapidly and remained dangerously low over the next two and a half hours. Inexplicably, the Air Force nurse anesthetist monitoring Michelle's condition did not report this significant new data.

Meanwhile, Dr. Archibald noticed severe vaginal lacerations and worked for more than an hour to repair them after delivering the placenta. During that time, the nurse anesthetist continued to monitor Mrs. McCall's vital signs and reported to Dr. Archibald that they were stable, failing again to inform him that the patient's blood pressure was not only dangerously low, but continuing to drop. At 3:50 a.m., when Dr. Archibald completed his work, he requested an immediate blood count and, if needed, a transfusion to compensate for the loss of blood Mrs. McCall had experienced during and after delivery. Forty minutes later, the Family Practice Department physician finally ordered the blood count. Forty minutes after that, and over an hour after Dr. Archibald had requested immediate blood work, a nurse attempted to draw blood from Mrs. McCall. The patient was unresponsive and had gone into shock, and cardiac arrest, as a result of severe loss of blood It was unclear how long Mrs. McCall had been in this state, since no one had monitored her or checked her status for the hour following Dr. Archibald's procedure. Mrs. McCall never regained consciousness and was removed from life support on Feb. 27, 2006.

Federal Tort Claims Act Litigation

The family filed an action against the United States under the Federal Tort Claims Act (FTCA), which subjects the federal government to wrongful death actions filed pursuant to state law. United States District Judge Margaret Catherine Rodgers conducted a bench trial and found the government liable based upon the “combined failures of all medical staff.” Concluding her decision, Judge Rodgers acknowledged: “Simply and sadly put, this young woman bled to death in the presence of all medical staff who were attending her.” Awarding damages, Judge Rodgers determined that the plaintiffs' financial losses amounted to approximately $980,000. The District Court concluded that non-economic damages totaled $2 million, including $500,000 for Mrs. McCall's son and $750,000 for each of her parents.

However, the District Court limited the plaintiffs' recovery for wrongful death, non-economic damages to $1 million upon application of Florida Statute ' 766.118(2), the state's statutory cap on wrongful death noneconomic damages based on medical malpractice claims. The district court denied a motion filed by the plaintiffs challenging the constitutionality of the statutory cap under both the Florida and United States Constitutions. On appeal to the Eleventh Circuit, the plaintiffs contended that the statutory cap violated both the Equal Protection Clause of the United States Constitution and constituted a taking in violation of the Fifth Amendment of the Federal Constitution. Furthermore, they asserted that the statutory cap violated provisions of the Florida Constitution, including those governing separation of powers; the right to trial by jury; the right of access to the courts; the right to equal protection of the law; and the prohibition against taking of private property without full compensation.

The Eleventh Circuit affirmed the application of the statutory cap on noneconomic damages and held that the statute did not constitute a taking in violation of the Florida State Constitution. The federal appellate court also held that the cap did not violate the Equal Protection Clause or the Takings Clause of the United States Constitution. However, the Eleventh Circuit granted a motion filed by the plaintiffs to certify four questions to the Florida Supreme Court regarding the remaining challenges to the statutory cap under the Florida Constitution.

In next month's newsletter, we will discuss the Florida Supreme Court's decision and what it will mean to medical malpractice claims in that State ' and, perhaps, others ' going forward.

Michael D. Brophy, a member of this newsletter's Board of Editors, is a partner in Goldberg Segalla LLP, practicing out of the firm's Philadelphia office.

In a long-awaited decision, the Florida Supreme Court has announced its ruling in the matter of Estate of McCall v. United States of America, 2014 Fla. LEXIS 933 (Fla. Mar. 13, 2014), holding that the Florida statutory cap on wrongful death noneconomic damages violated the Equal Protection Clause of the Florida State Constitution. The lengthy procedural course in McCall, including decisions by the federal Eleventh Circuit Court of Appeals and Florida's highest state court, provided arguments for both sides of a broader tort reform battle still underway in our nation's appellate courts. Grounded in a tragic factual setting both unforgettable and difficult to accept in the context of 21st-century medical care, the McCall court's decision is equally remarkable for its rationale, in which the plurality decision engaged in extensive fact-finding related to Florida's “alleged medical malpractice crisis.”

Death in Childbirth

In June 2005, Michelle McCall chose to receive prenatal medical care at a United States Air Force clinic as the married dependent of an Air Force serviceman. Physicians and support staff associated with the Air Force Family Practice Department provided McCall's prenatal care in a pregnancy that proceeded without complication until the final trimester. On Feb. 21, 2006, however, test results revealed significantly elevated blood pressure consistent with severe preeclampsia. McCall's serious condition required that labor be induced immediately.

Instead of transferring Mrs. McCall to a more specialized OB-GYN Department, the Family Practice group continued to provide medical care. A local Air Force hospital was temporarily unavailable for obstetric and delivery services, so Mrs. McCall's attending physicians effected a transfer to the Fort Walton Beach Medical Center instead. There, the Air Force Family Practice physicians continued to treat Mrs. McCall for hypertension, and induced labor.

Complications developed and the treating physicians consulted an Air Force obstetrician, Dr. Archibald, to determine his availability for an emergency Caesarian section. Dr. Archibald was performing another surgery, however, and would not be available until after he finished that procedure. The Air Force family physicians prepared Mrs. McCall for her surgery but did not call any other obstetricians to determine if one was available to provide immediate medical care.

On Feb. 22, Dr. Archibald arrived to perform the C-section, but left the hospital after being advised that Mrs. McCall's contractions had resumed and the attending family physicians had decided to allow labor to proceed. At 1:05 a.m. on Feb. 23, 2006, Mrs. McCall delivered a healthy baby boy. Shortly thereafter, family members who visited Michelle expressed concern about the amount of blood she had lost during delivery. In response, medical personnel provided repeated assurances that the patient's condition was stable.

Thirty five minutes later, however, the placenta had not delivered as expected, and two Family Practice physicians attempted manual extraction without success. At 2:35 a.m., Dr. Archibald was once again consulted for assistance and arrived within 10 minutes. Dr. Archibald removed the placenta within five minutes of his arrival. By this time, Mrs. McCall's blood pressure began to drop rapidly and remained dangerously low over the next two and a half hours. Inexplicably, the Air Force nurse anesthetist monitoring Michelle's condition did not report this significant new data.

Meanwhile, Dr. Archibald noticed severe vaginal lacerations and worked for more than an hour to repair them after delivering the placenta. During that time, the nurse anesthetist continued to monitor Mrs. McCall's vital signs and reported to Dr. Archibald that they were stable, failing again to inform him that the patient's blood pressure was not only dangerously low, but continuing to drop. At 3:50 a.m., when Dr. Archibald completed his work, he requested an immediate blood count and, if needed, a transfusion to compensate for the loss of blood Mrs. McCall had experienced during and after delivery. Forty minutes later, the Family Practice Department physician finally ordered the blood count. Forty minutes after that, and over an hour after Dr. Archibald had requested immediate blood work, a nurse attempted to draw blood from Mrs. McCall. The patient was unresponsive and had gone into shock, and cardiac arrest, as a result of severe loss of blood It was unclear how long Mrs. McCall had been in this state, since no one had monitored her or checked her status for the hour following Dr. Archibald's procedure. Mrs. McCall never regained consciousness and was removed from life support on Feb. 27, 2006.

Federal Tort Claims Act Litigation

The family filed an action against the United States under the Federal Tort Claims Act (FTCA), which subjects the federal government to wrongful death actions filed pursuant to state law. United States District Judge Margaret Catherine Rodgers conducted a bench trial and found the government liable based upon the “combined failures of all medical staff.” Concluding her decision, Judge Rodgers acknowledged: “Simply and sadly put, this young woman bled to death in the presence of all medical staff who were attending her.” Awarding damages, Judge Rodgers determined that the plaintiffs' financial losses amounted to approximately $980,000. The District Court concluded that non-economic damages totaled $2 million, including $500,000 for Mrs. McCall's son and $750,000 for each of her parents.

However, the District Court limited the plaintiffs' recovery for wrongful death, non-economic damages to $1 million upon application of Florida Statute ' 766.118(2), the state's statutory cap on wrongful death noneconomic damages based on medical malpractice claims. The district court denied a motion filed by the plaintiffs challenging the constitutionality of the statutory cap under both the Florida and United States Constitutions. On appeal to the Eleventh Circuit, the plaintiffs contended that the statutory cap violated both the Equal Protection Clause of the United States Constitution and constituted a taking in violation of the Fifth Amendment of the Federal Constitution. Furthermore, they asserted that the statutory cap violated provisions of the Florida Constitution, including those governing separation of powers; the right to trial by jury; the right of access to the courts; the right to equal protection of the law; and the prohibition against taking of private property without full compensation.

The Eleventh Circuit affirmed the application of the statutory cap on noneconomic damages and held that the statute did not constitute a taking in violation of the Florida State Constitution. The federal appellate court also held that the cap did not violate the Equal Protection Clause or the Takings Clause of the United States Constitution. However, the Eleventh Circuit granted a motion filed by the plaintiffs to certify four questions to the Florida Supreme Court regarding the remaining challenges to the statutory cap under the Florida Constitution.

In next month's newsletter, we will discuss the Florida Supreme Court's decision and what it will mean to medical malpractice claims in that State ' and, perhaps, others ' going forward.

Michael D. Brophy, a member of this newsletter's Board of Editors, is a partner in Goldberg Segalla LLP, practicing out of the firm's Philadelphia office.