PBCBA BAR BULLETINS PBCBA Bulletin - January 2020 - Page 14

PERSONAL INJURY CORNER MIZARHI REVISITED TED BABBITT In Mizrahi v. North Miami Medical Center, 761 So. 2d 1040 (Fla. 2000), the Florida Supreme Court found that Fla. Stat. 768.20(8) did not violate the equal protection guarantees of the Florida and United States Constitutions. That statue created a right of action for the wrongful death of parents of a deceased adult child and for the wrongful death of adult children of deceased parents but eliminated those rights in cases involving medical malpractice. The Supreme Court decided that case based on limitations which the Supreme Court said bore a rationale relationship to a legitimate state interest in limiting increases in medical insurance costs which the Legislature found was a consequence of an ongoing medical malpractice crises. Subsequent to the decision in Mizrahi, supra, the plaintiffs in Santiago v. Rodriguez, Case No. 2D18-3114 (Oct. 18, 2019) brought a wrongful death action as adult surviving children of their mother whom they alleged was the victim of medical malpractice. Their suit was dismissed based upon Mizrahi and the case came before the Second District asking that Mizrahi be reviewed in light of the Supreme Court’s holdings in Estate of McCall v. United States , 134 So. 3d 894 (Fla. 2014) and North Broward Hospital District v Kalitan, 219 So. 3d 49 (Fla. 2017). In Estate of McCall, supra, the Supreme Court analyzed the constitutionality of a statutory cap on noneconomic damages in wrongful death cases and held at 909 – 14: • • • Based upon these statements and reports, although medical malpractice premiums in Florida were undoubtably high in 2003, we conclude the Legislature’s determination that “the increase in medical malpractice liability insurance rates is forcing physicians to practice medicine without professional liability insurance, to leave Florida, to not perform high-risk procedures, or to retire early from the practice of medicine” is unsupported. Ch. 2003-416, § 1, Laws of Fla. at 4035. Thus, the finding by the Legislature and the Task Force that Florida was in the midst of a bona fide medical malpractice crisis, threatening the access of Floridians to health care, is dubious and questionable at the very best. [E]ven if there had been a medical malpractice crisis in Florida at the turn of the century, the current data reflects that it has subsided. The Estate of McCall case related to wrongful death cases. Subsequently the Supreme Court in Kalitan, supra, found the statutory cap on noneconomic damages in personal injury cases unconstitutional concluding that “there is no evidence of a continuing medical malpractice insurance crisis justifying the arbitrary and invidious discrimination between medical malpractice victims.” Kalitan, supra , 59. The plaintiffs in Santiago alleged that the underpinning of the Mizrahi decision that a medical malpractice crisis existed was at least called into question by McCall and Kalitan. The Second District found that even if that were true, the Mizrahi decision was binding precedent which the Second District was required to follow in the absence of a contrary Supreme Court holding. At 7, the Court held : • Moreover, we are bound to follow Mizrahi even if the Supreme Court’s subsequent decisions in related cases suggest that it might decide the case differently if it were to address the issue today. When a district court believes that a supreme court case has been incorrectly decided or should be reevaluated, the court cannot simply deviate from the supreme court’s decision. Rather, the proper procedure is to follow the precedential case and certify a question of great public importance that presents the district court’s concerns. See Strickland v. State , 437 So. 2d 150, 152 (Fla. 1983); Hoffman v. Jones , 280 So. 2d 431, 434 (Fla. 1973) (noting that district courts are free to certify questions and advocate a change in the law when they deem it appropriate but that they are “bound to follow the case law set forth by this Court”). We follow that path here. • The Second District, however, concluded that there was uncertainty as to what the Supreme Court would hold with respect to the Mizrahi decision. Thus, at Page 7, the Court concluded: PBCBA BAR BULLETIN 14 However, we are mindful of McCall’s observations that “a crises is not a permanent condition” and that “[c]onditions can change, which remove or negate the justification for a law, transforming what may have once been reasonable into arbitrary and irrational legislation.” 134 So. 3d at 913. McCall and Kalitan suggest that such is the case with respect to the medical malpractice crisis that, according to Mizrahi, formed the constitutional underpinning of section 768.21(8). For this reason, we certify the following question of great public importance: • • • IN LIGHT OF THE SUPREME COURT’S DECISIONS IN ESTATE OF MCCALL v. UNITED STATES, 134 So. 3d 894 (Fla. 2014), AND NORTH BROWARD HOSPITAL DISTRICT v. KALITAN, 219 So. 3d 49 (Fla. 2017), DOES SECTION 768.21(8), FLORIDA STATUTES, VIOLATE THE EQUAL PROTECTION GUARANTEES OF THE UNITED STATES AND FLORIDA CONSTITUTIONS, NOTWITHSTANDING THE COURT’S PRIOR DECISION ON THE ISSUE IN MIZRAHI v. NORTH MIAMI MEDICAL CENTER, LTD., 761 So. 2d 1040 (Fla. 2000)? Affirmed; question certified. Thus, wrongful death cases involving adult children await determination of the certified question as to whether Mizrahi is still good law. NOTE: BECAUSE A NUMBER OF PEOPLE HAVE REQUESTED COPIES OF PAST ARTICLES, A COMPILATION OF THESE ARTICLES IS NOW AVAILABLE TO MEMBERS OF THE PALM BEACH COUNTY BAR ASSOCIATION, FREE OF CHARGE, BY CALLING (561) 684-2500.