PBCBA BAR BULLETINS PBCBA Bulletin - March 2020 | Page 16

PERSONAL INJURY CORNER
IS MIZRAHI NO LONGER BINDING PRECEDENT?
TED BABBITT
Wrongful death actions are creatures of
statute. There was no action for wrongful
death under common law. Fla. Stat. §768.21
created a cause of action for adult surviving
children for a statutory right to recover
noneconomic damages for the wrongful
death of a parent. However, Fla. Stat. 768.21(8),
excluded medical malpractice cases from
that statute. Thus, in malpractice cases in
Florida adult surviving children have no
statutory right to recover noneconomic
damages for the wrongful death of a parent.
Conversely, parents in medical malpractice
cases have no statutory right to recover
noneconomic damages as a result of the
death of an adult child.
In Mizrahi vs. North Miami Medical Center
Limited, 761 So.2d 1040 (Fla. 2000), the
Supreme Court of Florida upheld the statute
as constitutional in the face of an action
alleging that the statute violated the equal
protection guarantees of the Florida and
United States Constitutions. In that case, the
Supreme Court held:
"Accordingly, the instant statute which
created a right of action for many while
excluding a specific class from such
action, and which exclusion is rationally
related to controlling healthcare costs
and accessibility, does not violate the
equal protection guarantees of either the
United States or Florida Constitutions."
761 So.2d at 1043."
The court relied on a legislative finding that
increases in medical malpractice insurance
was the consequence of an ongoing medical
malpractice crisis.
In Santiago v. Rodriguez, Fla. 2nd DCA 18-
3114, the Second District was faced with a
medical malpractice case in which the adult
children of a deceased parent argued that
Mizrahi was no longer tenable law in light
of subsequent Supreme Court decisions
concluding that the malpractice crisis
upon which the statute's validity depended
no longer existed. They pointed out that
in Estate of McCall v. United States, 134
So.3d 894 (Fla. 2014), the Supreme Court of
Florida reviewed the constitutionality of the
statutory cap on noneconomic damages in
wrongful death cases resulting from medical
malpractice. A plurality opinion held:
"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.
…
Even if there had been a medical
malpractice crisis in Florida at the turn of
the century, the current data reflects that
it has subsided.
Id. at 909-14 (emphasis added).
The plaintiffs also cited the Supreme Court's
decision in North Broward Hospital District
v. Kalitan, 219 So.3d 49 (Fla. 2017) which
held that the statutory cap on noneconomic
damages for injuries caused by medical
malpractice was unconstitutional. The Court
in that case concluded "there is no evidence
of a continuing medical malpractice
insurance crisis justifying the arbitrary and
invidious discrimination between medical
malpractice victims." Id. At 59.
The Santiago court concluded they were
bound to follow Mizrahi even though
subsequent decisions suggest that the
Supreme Court might decide differently
if it were to address that issue today. The
Court pointed out that when a District Court
believes that a Supreme Court case has to be
re-evaluated, the court cannot deviate from
the Supreme Court's decision,and the proper
procedure is to certify the case as a question
of great public importance and present the
district court's concerns.
PBCBA BAR BULLETIN
16
Citing the McCall court's observations that
"a crisis is not a permanent condition"
and that "conditions 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. The Court
reasoned that both McCall and Kalitan
concluded that a malpractice case which
was relied on in Mizrahi may no longer exist
and for that reason certified 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 MIAIMI
MEDICAL CENTER, LTD., 761 SO.2D 1040
(FLA. 2000)?
Thus, the issue of whether Florida
Statute 768.21 (8) can prohibit collection
of noneconomic damages in medical
malpractice cases regarding adult children
or deceased parents of adult children will
hopefully soon be decided.
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 [phone].