North Broward Hospital v. Kalitan and the Possible Death of Medical Malpractice Caps

In 2003, then Governor Jeb Bush signed into law Fla. Stat.§ 766.118, which capped the amount of recovery a plaintiff could receive from defendants for medical malpractice. The medical community claimed that doctors were fleeing Florida because of the sky-high cost of medical malpractice insurance and these caps would help to keep doctors in Florida and attract doctors to Florida. This statute limited noneconomic damages, otherwise known as pain and suffering, to between $500,000 and $1.5 million, depending on whether the healthcare provider is deemed a “practitioner” or a “nonpractitioner” and if the plaintiff died, was left in a vegetative state, or can prove “catastrophic injury.”

In November of 2006, Susan Kalitan arrived at Broward General Hospital for an out-patient carpal tunnel surgery, which is performed under general anesthesia. While the doctor and two nurses were administering the anesthesia, Kalitan’s esophagus was punctured. When she awoke in the recovery room, she immediately began complaining of chest and back pain, but because her heart rate and rhythm appeared normal, her complaints were ignored and she was sent home where her health deteriorated. The next morning Kalitan was discovered by a friend and rushed to the hospital. Kalitan was diagnosed with a perforated esophagus. Due to the perforation, fluid and food had escaped her esophagus and found its way into her chest cavity for more than 24 hours, causing a life-threatening infection. Kalitan had to have chest and neck surgery performed to remove the foreign material from her chest and remove the infection. She was then placed into a drug induced coma for three weeks while she recovered and fed through a feeding tube. When Kalitan awoke from her coma she remained in the hospital for several more weeks; she underwent speech pathology to learn to speak and swallow again and physical therapy to learn how to walk again. Kalitan remained on a feeding tube for six months. These are just of few of the complication that Kalitan continued to suffer because of the negligence of the anesthesiologist and Broward General Hospital.

In 2008 Kalitan filed a medical malpractice suit against North Broward Hospital District (“North Broward”) and the doctors and nurses who administered the anesthesia and their employers. In 2011 the case went to trial and the jury found the anesthesiologist, nurse anesthetist, student nurse anesthetist and the nurses at North Broward negligent and awarded her $4,718,000 in damages; $718,000 in economic damages and $4,000,000 in non-economic damages. Unfortunately, because of Fla. Stat.§ 766.118, Kalitan’s damages were reduced by the trial judge to $2,793,011. Both Kalitan and the Defendants appealed the decision and the Fourth District Court of Appeals reversed based upon the Florida Supreme Court’s decision in Estate of McCall v. United States, 134 So.3d 894 (Fla. 2014). In McCall the Court found that the caps in Fla. Stat.§ 766.118 were unconstitutional in multiple claimant personal injury cases.

On June 9, 2016, oral arguments were heard in North Broward Hospital v. Kalitan. Now the Florida Supreme Court must decide if the caps set in Fla. Stat.§ 766.118 are unconstitutional or constitutional in regards to single claimants. There is no time frame on when a decision will be passed down.

However, consider how these caps violate your constitutional rights. Under the Florida Constitution, everyone is guaranteed equal protection under the law, the fundamental right to access to the courts, and the right to a jury trial; Fla. Stat. §766.118 violates all of those rights. First, Plaintiffs right to equal protection is violated because the caps on noneconomic damages “discriminate against claimants who have suffered the most grievous injuries, while benefitting the tortfeasor and/or the insurance company.” Estate of McCall v. United States, 134 So.3d 894, 902 (Fla. 2014). Because this law favors one group over another group, the state is violating the Equal Protection Clause of the Florida Constitution, thereby offending the fundamental notion of equal protection and justice under the law. Secondly, caps violate your fundamental right to access the courts because it restricts ones constitutional right to a redress of injuries. Under normal tort law if the defendant is found negligent, you have the right to be made whole. By instituting caps, the state is limiting the plaintiff’s ability to be made whole by protecting the tortfeasor. Finally, the caps violate the right to a jury trial because the caps are applied to limit the jury’s verdict. Therefore, the plaintiff does not receive the damages awarded by the jury, but instead the damages the state deems to be appropriate – limiting the role of the jury. This, in effect, violates the plaintiff’s right to a jury trial, because the jury’s decision will not be followed.

If you or a loved one has been injured while under the care of a doctor or medical facility, the medical malpractice attorneys at Dean Law Firm are here to help. Call Dean Law Firm at 352-387-8700 or visit our website at for a free medical malpractice initial consultation.

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