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
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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.