Estate of Mccall v. United States

134 So.3d 894

ESTATE OF Michelle Evette McCALL, et al., Petitioners,

v.UNITED STATES of America, Respondent.

No. SC11–1148.

Supreme Court of Florida.

March 13, 2014.

Held Unconstitutional

West's F.S.A. § 766.118(2)Henry T. Courtney and Sara Courtney–Baigorri of Courtney Law Firm, Coral Gables, FL; Stephen S. Poche of The Law Office of Stephen S. Poche, P.A., Shalimar, FL; and Robert S. Peck and Valerie M. Nannery of Center for Constitutional Litigation, P.C., Washington, District of Columbia, for Appellants.

Tony West, Assistant Attorney General, Pamela C. Marsh, United States Attorney, Daniel J. Lenerz and Thomas M. Bondy, Attorneys, Appellate Staff Civil Division, United States Department of Justice, Washington, District of Columbia; and Pamela A. Moine, United States Attorney's Office, Pensacola, FL, for Appellee.

Raoul G. Cantero and David P. Draigh of White & Case LLP, Miami, FL, for Amici Curiae Coral Gables Hospital, Delray Medical Center, Good Samaritan Medical Center, Hialeah Hospital, North Shore Medical Center, North Shore Medical Center–FMC Campus, Palm Beach Gardens Medical Center, Palmetto General Hospital, St. Mary's Medical Center and West Boca Medical Center.

Thomas E. Warner and Dean A. Morande of Carlton Fields, P.A., West Palm Beach, FL, for Amicus Curiae HCA Health Services of Florida, Inc.

Fred J. Hiestand, Sacramento, CA, for Amicus Curiae The Civil Justice Association of California.

Jennifer A. Tschetter, General Counsel, Florida Department of Health, Tallahassee, FL; M. Drew Parker, General Counsel, and John Slye, Acting General Counsel, Florida Department of Children & Families, Tallahassee, FL; Dean C. Kowalchyk, General Counsel, Florida Department of Elder Affairs, Tallahassee, FL; William H. Roberts, Acting General Counsel,Florida Agency for Health Care Administration, Tallahassee, FL; and Mike Palecki, General Counsel, Florida Department of Agency for Persons with Disabilities, Tallahassee, FL, for Amici Curiae Surgeon General Frank Famer and Florida's Healthcare Agencies.

William W. Large, Tallahassee, FL, for Amicus Curiae Florida Justice Reform Institute.

Stephen Hogge of Stephen Hogge, Esq., LLC, Tallahassee, FL, for Amicus Curiae Professor Paul H. Rubin.

George N. Meros, Jr. and Allen Winsor of GrayRobinson PA, Tallahassee, FL, for Amici Curiae Florida College of Emergency Physicians and The Florida Orthopaedic Society.

Mark Hicks, Dinah Stein, and Shannon Kain of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, FL, for Amicus Curiae Florida Medical Association.

Arthur J. England, Jr. and Christopher B. Carbot of Greenberg Traurig, P.A., Miami, Florida; Mark K. Delegal and Cynthia S. Tunnicliff of Pennington, Moore, Wilkinson, Bell & Dunbar, P.A., Tallahassee, FL, for Amici Curiae The Florida Hospital Association and The Safety Net Hospital Alliance of Florida.

Pamela Jo Bondi, Attorney General and Diane G. DeWolf, Deputy Solicitor General, Office of the Attorney General, Tallahassee, FL, for Amicus Curiae The State of Florida.

Christopher L. Nuland and Brian Hart of Law Offices of Christopher L. Nuland, P.A., Jacksonville, FL, for Amici Curiae The Florida Chapter of the American College of Physicians, Florida Chapter of the American College of Surgeons, Florida Obstetric and Gynecologic Society, Florida Society of Plastic Surgeons, Florida Society of Thoracic and Cardiovascular Surgeons, Florida Neurosurgical Society, Florida Society of General Surgeons, Florida Society of Dermatology and Dermatologic Surgery and Florida Gastroenterologic Society.

Michael L. Rosen of Shook Hardy & Bacon L.L.P., Tampa, FL; Mark A. Behrens and Cary Silverman of Shook Hardy & Bacon, WA, District of Columbia, for Amici Curiae American Medical Association, American Academy of Orthopaedic Surgeons, American Congress of Obstetricians and Gynecologists, Chambers of Commerce of the United States of American, Health Coalition on Liability and Access, Physicians Insurers Association of America, Property Casualty Insurers Association of America, National Association of Mutual Insurance Companies, and NFIB Small Business Legal Center.

Lincoln J. Connolly of Rossman, Baumberger, Reboso, Spier & Connolly, P.A., Miami, FL, for Amici Curiae Floridians for Patient Protections, Inc. and Florida Consumer Action Network, Inc.

Barbara W. Green of Barbara Green, P.A., Coral Gables, Florida; and Joel S. Perwin of Joel S. Perwin, P.A., Miami, FL, for Amici Curiae The Florida Justice Association, AARP, Florida AFL–CIO, and Florida Public Employee Council 79, AFSCME, AFL–CIO.

John S. Mills and Andrew D. Manko of The Mills Firm, P.A., Tallahassee, FL, for Amici Curiae Professors Neil Vidmar, Tom Baker, Ralph L. Brill, Martha Chamallas, Stephen Daniels, Thomas A. Eaton, Theodore Eisenberg, Marc Galanter, Valerie P. Hans, Edward J. Kionka, Thomas Koenig, Herbert Kritzer, Nancy S. Marder, Joanne Martin, Frank M. McClellan, Deborah Jones Merritt, James T. Richardson, and Michael L. Rustad.

Stephen N. Zack, President, American Bar Association, Chicago, IL; and Herman J. Russomanno, Robert J. Borrello, Herman J. Russomanno III, of Russomanno & Borrello P.A., Miami, FL, for Amicus Curiae The American Bar Association.

George S. Christian, Austin, TX, for Amicus Curiae Texas Civil Justice League.

LEWIS, J.

This case is before the Court to answer four questions of Florida law certified by the United States Court of Appeals for the Eleventh Circuit that are determinative of a cause pending in that court and for which there appears to be no controlling precedent. We have jurisdiction. Art. V, § 3(b)(6), Fla. Const. In Estate of McCall v. United States, 642 F.3d 944 (11th Cir.2011), the Eleventh Circuit certified the following questions:

(1) DOES THE STATUTORY CAP ON NONECONOMIC DAMAGES, FLA. STAT. § 766.118, VIOLATE THE RIGHT TO EQUAL PROTECTION UNDER ARTICLE I, SECTION 2 OF THE FLORIDA CONSTITUTION?

(2) DOES THE STATUTORY CAP ON NONECONOMIC DAMAGES, FLA. STAT. § 766.118, VIOLATE THE RIGHT OF ACCESS TO THE COURTS UNDER ARTICLE I, SECTION 21 OF THE FLORIDA CONSTITUTION?

(3) DOES THE STATUTORY CAP ON NONECONOMIC DAMAGES, FLA. STAT. § 766.118, VIOLATE THE RIGHT TO TRIAL BY JURY UNDER ARTICLE I, SECTION 22 OF THE FLORIDA CONSTITUTION?

(4) DOES THE STATUTORY CAP ON NONECONOMIC DAMAGES, FLA. STAT. § 766.118, violate the separation of powers guaranteed by ARTICLE II, SECTION 3 and ARTICLE V, SECTION 1 OF THE FLORIDA CONSTITUTION?

Id. at 952–53. Because this case involves a wrongful death, we rephrase the first certified question as follows:

DOES THE STATUTORY CAP ON WRONGFUL DEATH NONECONOMIC DAMAGES, FLA. STAT. § 766.118, VIOLATE THE RIGHT TO EQUAL PROTECTION UNDER ARTICLE I, SECTION 2 OF THE FLORIDA CONSTITUTION?

As explained below, we answer the first rephrased certified question in the affirmative and hold that the cap on wrongful death noneconomic damages provided in section 766.118, Florida Statutes, violates the Equal Protection Clause of the Florida Constitution. We find it unnecessary to answer the remaining certified questions because Florida's Wrongful Death Act is of statutory origin, and the present case is under the Federal Tort Claims Act and its procedures.

FACTS AND PROCEDURAL HISTORY

In its opinion, the Eleventh Circuit detailed the facts regarding the legal action filed by the estate of Michelle McCall, Ms. McCall's parents, and the father of Ms. McCall's son (Petitioners) against the United States:

During June 2005, Michelle McCall received prenatal medical care at a United States Air Force clinic as an Air Force dependent. Ms. McCall opted for the Air Force's family practice department to provide primary prenatal care and delivery services throughout her pregnancy. She had a healthy and normal pregnancy until the last trimester. On February 21, 2006, test results revealed that Ms. McCall's blood pressure was high and that she was suffering from severe preeclampsia. Ms. McCall's serious condition required that labor be induced immediately.

Instead of transferring Ms. McCall to the OB/GYN department, the family practice department continued to provide medical care. The Air Force hospital was temporarily unavailable for obstetric and delivery services, so members of the family practice department transferred Ms. McCall to the Fort Walton Beach Medical Center instead. There, Air Force family practice doctors treated Ms. McCall for hypertension and induced labor. When Ms. McCall dilated to five centimeters, her contractions slowed and became weaker. The Air Force family practice doctors treating Ms. McCall called an Air Force obstetrician, Dr. Archibald, and asked if he could perform a cesarean section. Dr. Archibald reported that he was performing another surgery and would not be available to perform a cesarean section on Ms. McCall until after he finished that surgery. The Air Force family practice doctors prepared Ms. McCall for a cesarean section but did not call other obstetricians to determine if one was available to provide immediate medical care.

On February 22, 2006, Dr. Archibald finally arrived to perform the cesarean section, but Ms. McCall's contractions had resumed and the Air Force family practice doctors decided to allow Ms. McCall to deliver vaginally. Dr. Archibald left the Fort Walton Medical Center. On February 23, 2006 at 1:25 a.m., Ms. McCall delivered a healthy baby boy. Family members who visited Ms. McCall after the delivery expressed concerns about the amount of blood Ms. McCall had lost during delivery. Medical personnel assured these family members that Ms. McCall was stable.

Thirty-five minutes later, when the placenta had not delivered as expected, two family practice doctors from the family practice department tried without success to manually extract the placenta. An Air Force nurse anesthetist administered additional epidural pain relief and gave Ms. McCall two separate doses of Morphine intravenously. Around 2:35 a.m., the family practice department doctors called Dr. Archibald, the...