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 (561) 684-2500.