M.D. v. U.S.

• Decision Date: 30 September 2010
• Docket Number: Case No. 8:09–cv–438–EAK–MAP.
• Citation: 745 F.Supp.2d 1274
• Parties: M.D., a Minor, et al., Plaintiffs,v.UNITED STATES of America, Defendant.
• Court: U.S. District Court — Middle District of Florida

745 F.Supp.2d 1274

M.D., a Minor, et al., Plaintiffs,

v.UNITED STATES of America, Defendant.

Case No. 8:09–cv–438–EAK–MAP.

United States District Court, M.D. Florida,Tampa Division.

Sept. 30, 2010.

Theodore Stanley Forman, Forman Law Offices, PA, Delray Beach, FL, for Plaintiffs.Sean Flynn, U.S. Attorney's Office, Tampa, FL, for Defendant.

ORDER DENYING PLAINTIFF'S MOTION TO STRIKE FIFTEENTH AFFIRMATIVE DEFENSE

ELIZABETH A. KOVACHEVICH, District Judge.

This cause is before the Court on Plaintiffs' Motion to Strike Defendant's Fifteenth Affirmative Defense (Dkt. 64, 65) and Defendant's response thereto (Dkt. 77).

BACKGROUND

On August 4, 2007, Arlene Delgado died, shortly after giving birth, under the care of Central Florida Health Care Inc., an agency of the Defendant, United States of America. Plaintiffs, the beneficiaries of the decedent's estate, seek economic and non-economic damages from Defendant for medical malpractice. Defendant has asserted Florida Statute § 766.118, which could serve to cap potential non-economic damages in this case to a maximum of 1.5 million dollars, as an affirmative defense. Plaintiffs move to strike this affirmative defense on several grounds, arguing that Florida's medical malpractice liability caps unconstitutionally infringe on their rights of access to the courts, equal protection, and due process.

STANDARD OF REVIEW

Under Rule 12(f) of the Federal Rules of Civil Procedure, the court may order stricken from a pleading any “redundant, immaterial, impertinent, or scandalous matter” upon motion by any party. A motion to strike will “usually be denied unless the allegations have no possible relation to the controversy and may cause prejudice to one of the parties.” Pashoian v. GTE Directories n/k/a Verizon Directories, 208 F.Supp.2d 1293, 1297 (M.D.Fla.2002) ( quoting Story v. Sunshine Foliage World Inc., 120 F.Supp.2d 1027, 1030 (M.D.Fla.2000)) ( citing Seibel v. Society Lease, Inc., 969 F.Supp. 713, 715 (M.D.Fla.1997) ).

DISCUSSION

I. Introduction

Florida's medical malpractice liability caps were adopted by the Legislature to address the rising cost of medical liability insurance in this state. These liability caps, found in Florida Statute § 766.118, have been the repeated target of constitutional attacks by plaintiff's lawyers. The arguments contained in the Plaintiff's Motion to Strike mirror those brought in the recent case of Estate of McCall v. United States, 663 F.Supp.2d 1276 (N.D.Fla.2009). In McCall, United States District Court Judge M. Casey Rodgers of the Northern District of Florida thoroughly addressed these arguments and reconciled Fla. Stat. § 766.118 with both the Florida and United States Constitutions. Estate of McCall, 663 F.Supp.2d at 1297. The Defendant's analysis of McCall and other relevant precedent is astute, and is incorporated herein by reference.

II. House Select Committee on Medical Liability Insurance

In 2003, the Florida Legislature devoted an enormous amount of time and effort to address the statewide medical malpractice insurance crisis. Even before the regular session began, the House Select Committee on Medical Liability Insurance (the “Select Committee”) reviewed the findings of the Governor's Select Task Force on Healthcare Professional Liability insurance, held public hearings in four cities, heard testimony from experts in all affected professional areas, and compiled an extensive hearing record. See Select Committee, Final Report, at 4, 5 ( available at http:// tinyurl. com/ 6 eknhq). On March 5, 2003, the Select Committee published an 82–page report, exclusive of appendices, outlining its findings and concluding that “the health care community is under intense pressure to provide quality care [despite] rapidly accelerating cost factors, including significant increases in the premiums charged for medical liability insurance.” See id. at 5. In order to address the problem of rising medical malpractice liability insurance premiums, the Legislature enacted the liability caps for non-economic damages found in Florida Statute § 766.118.

III. Non-economic damages

Under Florida law, “non-economic damages” include non-financial losses such as pain and suffering, inconvenience, mental anguish, and loss of capacity for enjoyment of life. § 766.202(8), Fla. Stat. (2007). The challenged legislation includes no limit on economic damages, such as medical expenses, long-term care, and loss of earnings. Id.

The limit on non-economic damages depends on the circumstances. For practitioners providing non-emergency services, the limit is $500,000.00 per claimant, per practitioner, and per occurrence. Id. § 766.118(2)(a). If the negligence involved death or a permanent vegetative state, the limit increases to $1 million. Id. § 766.118(2)(b). And if the trial court determines that a manifest injustice would otherwise occur and that there was a catastrophic injury, it may increase the limit for the injured patient to $1 million even in the absence of death or a permanent vegetative state. Id. For non-practitioner defendants providing non-emergency services, the limit is $750,000.00 unless there is death, a permanent vegetative state, or unless there is catastrophic injury and there would otherwise be manifest injustice, in which case the limit for the injured patient is $1.5 million. Id. § 766.118(3).¹

IV. Access to the courts

Unlike its federal counterpart, the Florida Constitution grants a specific right to access the courts. Article I, Section 21 states that “[t]he courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.” The Florida Supreme Court has interpreted that provision to mean that where a right of access to the courts existed before the adoption of the Declaration of Rights of the Florida Constitution, the Legislature may not abolish that right “without providing a reasonable alternative to protect the rights of the people of the State to redress for injuries, unless the Legislature can show an overpowering public necessity for the abolishment of such right, and no alternative method of meeting such public necessity can be shown.” Kluger v. White, 281 So.2d 1, 4 (Fla.1973). Thus, before abolishing a right of action, the Legislature must provide a reasonable alternative or demonstrate a public necessity.

The plaintiffs cite the case of Smith v. Department of Insurance, 507 So.2d 1080 (Fla.1987), for the premise that a plaintiff has not received a constitutional redress of injuries if the legislature statutorily, and arbitrarily, caps the recovery. However, the Kluger analysis in Smith differs greatly from the analysis employed by the court in McCall and the analysis necessary in this case. As the court in McCall stated in distinguishing Smith, the court in Smith “relied solely on the first prong of Kluger, concluding that there was no reasonable alternative or commensurate benefit to justify limiting to $450,000.00 the previously unrestricted right to non-economic damages in every tort case.” McCall, 663 F.Supp.2d at 1301 (emphasis added). Notably, the Smith court did not address the second prong of Kluger because the parties had never asserted that the all-torts cap was based on any overpowering public necessity. See Smith, 507 So.2d at 1089. Therefore, Smith significantly differs and is easily distinguishable from the case at hand.

The instant case closely parallels University of Miami v. Echarte, 618 So.2d 189 (Fla.1993). In Echarte, the Florida Supreme Court held that restrictions on the right of access are constitutional where the Legislature, after a thorough fact-finding process, determines that an overpowering public necessity exists and that no reasonable alternative is available. Specifically, the Court sustained the constitutionality of a statute that limited non-economic damages in medical malpractice actions to $250,000.00 if the plaintiff granted the defendant's request to arbitrate and to $350,000.00 if the plaintiff rejected it.

In Echarte the court recognized that “[t]he Legislature has the final word on declarations of public policy, and the courts are bound to give great weight to legislative determinations of fact.” Id. at 196. Relying on the substantial legislative record, the court held “that the Legislature has shown that an ‘overpowering public necessity’ exists.” Id. at 197. The court observed similar deference in concluding that the Legislature had no reasonable alternative, noting that the task force concluded that “[a]ll [of its recommendations] are necessary” and that the Legislature in fact implemented those recommendations. Id.

When weighing the challenged legislation, the Florida Legislature made findings of fact based upon the recommendations of the Governor's Select Task Force on Healthcare Professional Liability Insurance, which demonstrate that a medical malpractice crisis did, in fact, exist, and expresses the Legislature's conclusion that the reforms, of which the challenged caps are a part, were the only means available to alleviate this crisis. See Governor's Select Task Force on Healthcare Professional Liability Insurance, Final Report and Recommendations, at 18 (Jan. 29, 2003) (hereinafter “Task Force”); Florida Senate Journal, Journal of the Special Session D, Number 1, (2003).

In a 345–page report accompanied by a 13–volume record, the Task Force found the existence of a medical malpractice crisis and recommended a limit on non-economic damage awards. The Task Force considered caps on non-economic damages a sine qua non of successful reform, and the Legislature adopted the findings of the Task Force. See Task Force, Final Report and Recommendations at 193. Accordingly, this Court elects to defer to the well supported conclusions of the Task Force and the Legislature that Florida's medical malpractice insurance crisis presented an overpowering public necessity requiring the adoption of the liability caps found in...