Florida Statute 766.118, which places caps on non-economic damages in medical malpractice cases, has been a focal point of significant legal and constitutional debate. While the statute aims to create a more profitable environment for healthcare providers, it has faced numerous challenges questioning its alignment with constitutional principles. This blog post will explore the constitutional arguments surrounding F.S. 766.118, examining key court decisions and the broader implications for tort reform and patient rights.

Overview of F.S. 766.118

F.S. 766.118 was enacted, in theory, to address the rising costs of medical malpractice insurance and to ensure the availability of healthcare services. The statute caps non-economic damages—such as pain and suffering, mental anguish, and loss of enjoyment of life—at $500,000 per claimant for practitioners and $750,000 per claimant for non-practitioners. In cases of catastrophic injuries, these caps are increased to $1 million and $1.5 million, respectively.

Constitutional Challenges to F.S. 766.118

1. Equal Protection Clause

One of the primary constitutional arguments against F.S. 766.118 is that it violates the Equal Protection Clause of the Florida Constitution. Opponents argue that the statute creates arbitrary distinctions between different classes of plaintiffs and defendants, thereby denying equal protection under the law.

Case Law: North Broward Hospital District v. Kalitan

In 2017, the Florida Supreme Court ruled in North Broward Hospital District v. Kalitan that the caps on non-economic damages in personal injury cases were unconstitutional. The court found that the caps violated the Equal Protection Clause by arbitrarily reducing damages for plaintiffs who suffer the most severe injuries, thus disproportionately affecting the most vulnerable patients.

2. Access to Courts

Another significant constitutional challenge is based on the right to access the courts, as guaranteed by the Florida Constitution. Critics of F.S. 766.118 argue that by limiting the amount of recoverable damages, the statute effectively denies plaintiffs full access to justice and fair compensation.

Case Law: McCall v. United States

In McCall v. United States (2014), the Florida Supreme Court ruled that the statutory cap on wrongful death noneconomic damages was unconstitutional. The court held that the cap violated the right to access the courts because it arbitrarily reduced compensation for plaintiffs who had suffered catastrophic injuries or loss, thus failing to provide a full and fair remedy.

3. Due Process Clause

The Due Process Clause of the Florida Constitution is also cited in arguments against F.S. 766.118. Opponents contend that the statute's arbitrary caps on non-economic damages deprive plaintiffs of their property rights without due process of law.

Case Law: Estate of McCall v. United States

The Estate of McCall v. United States decision also touched upon due process concerns. The Florida Supreme Court noted that the arbitrary nature of the damage caps failed to serve a legitimate government interest in a rational manner, thereby violating due process rights.

Implications of Court Decisions

The rulings in Kalitan and McCall have had significant implications for F.S. 766.118 and similar tort reform measures. By declaring the caps on non-economic damages unconstitutional, the Florida Supreme Court has underscored the importance of ensuring that legislative measures do not infringe upon fundamental constitutional rights. For plaintiffs, the decisions restore the possibility of receiving full compensation for non-economic damages in medical malpractice cases. This is particularly significant for those who have suffered severe and life-altering injuries, ensuring that they can seek adequate redress for their pain and suffering.

The Ongoing Debate

The constitutionality of F.S. 766.118 remains a contentious issue, reflecting broader debates over tort reform and patient rights. Proponents of damage caps argue that they are necessary to control healthcare costs and prevent frivolous lawsuits, while opponents contend that such caps unfairly limit compensation for the most seriously injured patients.

1. Arguments in Favor of Caps

Supporters maintain that caps on non-economic damages help stabilize the healthcare system by reducing the risk of excessive jury awards, which can drive up insurance premiums and lead to a scarcity of medical services.

2. Arguments Against Caps

Critics argue that damage caps disproportionately impact the most vulnerable patients, undermining their right to fair compensation. They assert that caps violate constitutional protections and fail to address the root causes of medical malpractice and healthcare costs.


The constitutionality of Florida Statute 766.118 continues to be a complex and evolving issue. While the statute aims to balance the interests of healthcare providers and patients, it has faced significant constitutional challenges that underscore the importance of safeguarding individual rights. As legal battles persist, the debate over F.S. 766.118 will remain a critical focal point in discussions about tort reform, access to justice, and the future of healthcare in Florida.

You can reach Hospital and Medical Malpractice Lawyer J.P. Gonzalez-Sirgo by dialing his direct number at (786) 272-5841, calling the main office at (305) 461-1095, or Toll Free at 1 (866) 71-CLAIM or email Attorney Gonzalez-Sirgo directly at [email protected] or by text at (305) 929-8935.

J.P. Gonzalez-Sirgo
J.P. Gonzalez-Sirgo, P.A.
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