On October 15, 2013, the Florida Supreme Court accepted review of a case to decide whether the retroactive application of the cap on noneconomic damages for certain medical malpractice cases found in section 766.118, Florida Statutes is constitutional.  See Weingrad v Miles, 29 So. 3d 406 (Fla. 3d DCA 2010).

            In the trial court, the jury found in favor of the plaintiffs and awarded them $1.5 million in noneconomic damages:  $1.45 million for the patient’s pain and suffering and $50,000 for her husband’s consortium claim.  The trial court denied the defendant-doctor’s motion to limit the judgment pursuant to the statutory cap.  The applicable statutory cap would have limited the plaintiffs’ total recovery to $500,000.  See § 766.118(2)(a), Fla. Stat.

            On appeal, the Third District reached the opposite conclusion.  It first found that the statute at issue was substantive in nature and that the legislature expressed clear legislative intent for retroactive application.  On the third prong of the analysis—whether plaintiffs had vested rights that were impaired—the district court found that they “had at most a ‘mere expectation’ or a prospect that they might recover damages of an indeterminate amount at an unspecified date in the future.”  The court based this conclusion on the fact that plaintiffs did not file their notice of intent, file their complaint, or obtain a judgment before the enactment of the statute.

            The parties are presently briefing the issues in the supreme court.  The author will update this article once the supreme court decides the case.  To check on the status of this case, please click here

            The supreme court is also reviewing in a different case whether the statutory cap on noneconomic damages is unconstitutional on other grounds.  See Estate of McCall v. United States, No. SC11-1148 (review granted June 14, 2011). That case is awaiting a decision