The 2023 Florida Statutes (including Special Session C)

Title XLV
TORTS

Chapter 766
MEDICAL MALPRACTICE AND RELATED MATTERS

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F.S. 766.118

766.118 Determination of noneconomic damages.—

(1) DEFINITIONS.—As used in this section, the term:

(a) “Catastrophic injury” means a permanent impairment constituted by:

1. Spinal cord injury involving severe paralysis of an arm, a leg, or the trunk;

2. Amputation of an arm, a hand, a foot, or a leg involving the effective loss of use of that appendage;

3. Severe brain or closed-head injury as evidenced by:

a. Severe sensory or motor disturbances;

b. Severe communication disturbances;

c. Severe complex integrated disturbances of cerebral function;

d. Severe episodic neurological disorders; or

e. Other severe brain and closed-head injury conditions at least as severe in nature as any condition provided in sub-subparagraphs a.-d.;

4. Second-degree or third-degree burns of 25 percent or more of the total body surface or third-degree burns of 5 percent or more to the face and hands;

5. Blindness, defined as a complete and total loss of vision; or

6. Loss of reproductive organs which results in an inability to procreate.

(b) “Noneconomic damages” means noneconomic damages as defined in s. 766.202(8).

(c) “Practitioner” means any person licensed under chapter 458, chapter 459, chapter 460, chapter 461, chapter 462, chapter 463, chapter 466, chapter 467, chapter 486, or s. 464.012 or registered under s. 464.0123. “Practitioner” also means any association, corporation, firm, partnership, or other business entity under which such practitioner practices or any employee of such practitioner or entity acting in the scope of his or her employment. For the purpose of determining the limitations on noneconomic damages set forth in this section, the term “practitioner” includes any person or entity for whom a practitioner is vicariously liable and any person or entity whose liability is based solely on such person or entity being vicariously liable for the actions of a practitioner.

(2) LIMITATION ON NONECONOMIC DAMAGES FOR NEGLIGENCE OF PRACTITIONERS.—

(a) With respect to a cause of action for personal injury or wrongful death arising from medical negligence of practitioners, regardless of the number of such practitioner defendants, noneconomic damages shall not exceed $500,000 per claimant. No practitioner shall be liable for more than $500,000 in noneconomic damages, regardless of the number of claimants.

(b) Notwithstanding paragraph (a), if the negligence resulted in a permanent vegetative state or death, the total noneconomic damages recoverable from all practitioners, regardless of the number of claimants, under this paragraph shall not exceed $1 million. In cases that do not involve death or permanent vegetative state, the patient injured by medical negligence may recover noneconomic damages not to exceed $1 million if:

1. The trial court determines that a manifest injustice would occur unless increased noneconomic damages are awarded, based on a finding that because of the special circumstances of the case, the noneconomic harm sustained by the injured patient was particularly severe; and

2. The trier of fact determines that the defendant’s negligence caused a catastrophic injury to the patient.

(c) The total noneconomic damages recoverable by all claimants from all practitioner defendants under this subsection shall not exceed $1 million in the aggregate.

(3) LIMITATION ON NONECONOMIC DAMAGES FOR NEGLIGENCE OF NONPRACTITIONER DEFENDANTS.—

(a) With respect to a cause of action for personal injury or wrongful death arising from medical negligence of nonpractitioners, regardless of the number of such nonpractitioner defendants, noneconomic damages shall not exceed $750,000 per claimant.

(b) Notwithstanding paragraph (a), if the negligence resulted in a permanent vegetative state or death, the total noneconomic damages recoverable by such claimant from all nonpractitioner defendants under this paragraph shall not exceed $1.5 million. The patient injured by medical negligence of a nonpractitioner defendant may recover noneconomic damages not to exceed $1.5 million if:

2. The trier of fact determines that the defendant’s negligence caused a catastrophic injury to the patient.

(c) Nonpractitioner defendants are subject to the cap on noneconomic damages provided in this subsection regardless of the theory of liability, including vicarious liability.

(d) The total noneconomic damages recoverable by all claimants from all nonpractitioner defendants under this subsection shall not exceed $1.5 million in the aggregate.

(4) LIMITATION ON NONECONOMIC DAMAGES FOR NEGLIGENCE OF PRACTITIONERS PROVIDING EMERGENCY SERVICES AND CARE.—Notwithstanding subsections (2) and (3), with respect to a cause of action for personal injury or wrongful death arising from medical negligence of practitioners providing emergency services and care, as defined in s. 395.002(9), or providing services as provided in s. 401.265, or providing services pursuant to obligations imposed by 42 U.S.C. s. 1395dd to persons with whom the practitioner does not have a then-existing health care patient-practitioner relationship for that medical condition:

(a) Regardless of the number of such practitioner defendants, noneconomic damages shall not exceed $150,000 per claimant.

(b) Notwithstanding paragraph (a), the total noneconomic damages recoverable by all claimants from all such practitioners shall not exceed $300,000.

The limitation provided by this subsection applies only to noneconomic damages awarded as a result of any act or omission of providing medical care or treatment, including diagnosis that occurs prior to the time the patient is stabilized and is capable of receiving medical treatment as a nonemergency patient, unless surgery is required as a result of the emergency within a reasonable time after the patient is stabilized, in which case the limitation provided by this subsection applies to any act or omission of providing medical care or treatment which occurs prior to the stabilization of the patient following the surgery.

(5) LIMITATION ON NONECONOMIC DAMAGES FOR NEGLIGENCE OF NONPRACTITIONER DEFENDANTS PROVIDING EMERGENCY SERVICES AND CARE.—Notwithstanding subsections (2) and (3), with respect to a cause of action for personal injury or wrongful death arising from medical negligence of defendants other than practitioners providing emergency services and care pursuant to obligations imposed by s. 395.1041 or s. 401.45, or obligations imposed by 42 U.S.C. s. 1395dd to persons with whom the practitioner does not have a then-existing health care patient-practitioner relationship for that medical condition:

(a) Regardless of the number of such nonpractitioner defendants, noneconomic damages shall not exceed $750,000 per claimant.

(b) Notwithstanding paragraph (a), the total noneconomic damages recoverable by all claimants from all such nonpractitioner defendants shall not exceed $1.5 million.

(6) LIMITATION ON NONECONOMIC DAMAGES FOR NEGLIGENCE OF A PRACTITIONER PROVIDING SERVICES AND CARE TO A MEDICAID RECIPIENT.—Notwithstanding subsections (2), (3), and (5), with respect to a cause of action for personal injury or wrongful death arising from medical negligence of a practitioner committed in the course of providing medical services and medical care to a Medicaid recipient, regardless of the number of such practitioner defendants providing the services and care, noneconomic damages may not exceed $300,000 per claimant, unless the claimant pleads and proves, by clear and convincing evidence, that the practitioner acted in a wrongful manner. A practitioner providing medical services and medical care to a Medicaid recipient is not liable for more than $200,000 in noneconomic damages, regardless of the number of claimants, unless the claimant pleads and proves, by clear and convincing evidence, that the practitioner acted in a wrongful manner. The fact that a claimant proves that a practitioner acted in a wrongful manner does not preclude the application of the limitation on noneconomic damages prescribed elsewhere in this section. For purposes of this subsection:

(a) The terms “medical services,” “medical care,” and “Medicaid recipient” have the same meaning as provided in s. 409.901.

(b) The term “practitioner,” in addition to the meaning prescribed in subsection (1), includes any hospital or ambulatory surgical center as defined and licensed under chapter 395.

(c) The term “wrongful manner” means in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property, and shall be construed in conformity with the standard set forth in s. 768.28(9)(a).

(7) SETOFF.—In any case in which the jury verdict for noneconomic damages exceeds the limits established by this section, the trial court shall reduce the award for noneconomic damages within the same category of defendants in accordance with this section after making any reduction for comparative fault as required by s. 768.81 but before application of a setoff in accordance with ss. 46.015 and 768.041. In the event of a prior settlement or settlements involving one or more defendants subject to the limitations of the same subsection applicable to a defendant remaining at trial, the court shall make such reductions within the same category of defendants as are necessary to ensure that the total amount of noneconomic damages recovered by the claimant does not exceed the aggregate limit established by the applicable subsection. This subsection is not intended to change current law relating to the setoff of economic damages.

(8) ACTIONS GOVERNED BY SOVEREIGN IMMUNITY LAW.—This section shall not apply to actions governed by s. 768.28.

History.—s. 54, ch. 2003-416; s. 204, ch. 2007-230; s. 28, ch. 2011-135; s. 124, ch. 2018-24; s. 81, ch. 2018-106; s. 37, ch. 2020-9.

F.S. 766.118 on Google Scholar

F.S. 766.118 on Casetext

Amendments to 766.118

Arrestable Offenses / Crimes under Fla. Stat. 766.118

Level: Degree
Misdemeanor/Felony: First/Second/Third

Current data shows no reason an arrest or criminal charge should have occurred directly under Florida Statute 766.118.

Annotations, Discussions, Cases:

Cases from cite.case.law:

NORTH BROWARD HOSPITAL DISTRICT, v. KALITAN,, 219 So. 3d 49 (Fla. 2017)

. . . Kalitan, 174 So.3d 403 (Fla. 4th DCA 2015), which held section 766.118, Florida Statutes (2011), to be . . . the caps on personal'injury non-economic damages in medical negligence actions provided in section 766.118 . . . After trial, Kali-tan’s noneconomic damages were capped by sections 766.118(2) and (3). . . . Here, we address whether sections 766.118(2) and 766.118(3) violate the right to equal protection guaranteed . . . Loss of reproductive organs which results in an inability to procreate. § 766.118(l)(a), Fla. . . . Under a proper rational basis analysis, the cap on noneconomic damages in section 766.118, Florida Statutes . . . Here, when enacting the noneconomic damages cap in section 766.118, the Legislature found that Florida . . . Florida Legislature could have rationally believed that the cap on noneco-nomic damages under section 766.118 . . . under the proper rational basis test that our long-standing precedent requires, the cap in section 766.118 . . .

MDVIP, INC. v. BEBER, P., 222 So. 3d 555 (Fla. Dist. Ct. App. 2017)

. . . court reduced the amount of the-final award based on the non-economic damages caps created by section 766.118 . . .

HERNANDEZ, M. D. v. CRESPO,, 211 So. 3d 19 (Fla. 2016)

. . . which this Court concluded that the statutory cap on wrongful death noneconomic damages under "section 766.118 . . . Wrongful Death Act, the standard of care for medical providers, caps on damages under Florida Statutes 766.118 . . .

PORT CHARLOTTE HMA, LLC, d b a a v. SUAREZ, K. D. P. a, 210 So. 3d 187 (Fla. Dist. Ct. App. 2016)

. . . After trial, Peace River filed a motion to reduce jury verdict pursuant to section 766.118(3), Florida . . . The trial court denied Peace River’s motion and declined to apply the statutory cap in 766.118(3). . . . Justice Association filed an amicus curiae brief in support of Suarez and K.D.P., arguing that section 766.118 . . . Recognizing that “section 766.118 applies to both personal injury and wrongful death actions,” the court . . . went on to conclude that “the section 766.118 caps are unconstitutional not only in wrongful death actionsE . . .

C. SANTA LUCIA, Ph. D. v. M. LeVINE, M. D. P. A. W. M. D. R. M. D. To- P. A., 198 So. 3d 803 (Fla. Dist. Ct. App. 2016)

. . . .- He contends that section 766.118, Florida Statutes (2012), is unconstitutional and that the trial . . . LeVine moved to limit the noneconomic damages pursuant to section 766.118, and the trial court granted . . .

SILVIO MEMBRENO AND FLORIDA ASSOCIATION OF VENDORS, INC. v. CITY OF HIALEAH,, 188 So. 3d 13 (Fla. Dist. Ct. App. 2016)

. . . Court declared that the cap on non-economic damages in medical malpractice claims contained in section 766.118 . . .

R. SHOEMAKER, D. O. v. SLIGER,, 187 So. 3d 863 (Fla. Dist. Ct. App. 2016)

. . . Appellant and his co-defendants filed a motion to limit non-economic damages pursuant to section 766.118 . . . The motion argued that, pursuant to section 766.118, the noneconomic damages in this case should be limited . . . Sliger’s Estate (“Appellee”), filed a response to that motion in which she alleged that “[sjection 766.118 . . . In McCall, the supreme court held that “section 766.118 violates the Equal Protection Clause of the Florida . . . Appellee then moved the trial court for entry of an amended final judgment without the section 766.118 . . .

Uy GO, M. D. v. NORMIL, a M. D. D. M. D., 184 So. 3d 554 (Fla. Dist. Ct. App. 2016)

. . . However, this award was reduced, by the trial court pursuant to section 766.118, Florida Statutes (2012 . . . Moreover, in' light of recent decisions concerning section 766.118, we agree" with the position raised . . . United States, 134 So.3d 894 (Fla.2014), “the section 766.118 caps are unconstitutional not only in wrongful . . . Per McCall and Kalitan, the caps on noneconomic damages, found in section 766.118(2), are unconstitutional . . .

NORTH BROWARD HOSPITAL DISTRICT d b a SRNA M. D. LLC CRNA v. KALITAN,, 174 So. 3d 403 (Fla. Dist. Ct. App. 2015)

. . . determined that the caps on noneconomic damages awards in wrongful death cases, imposed by section 766.118 . . . injury cases, and there are clear distinctions, McCall mandates a finding that the caps in section 766.118 . . . The court also rejected Plaintiffs challenge that the section 766.118 caps on noneconomic damages in . . . The court also limited the noneconomic damage awards by the caps provided in section 766.118, Florida . . . See § 766.118(2)(a), Fla. Stat. (2011). . . .

MILES, v. WEINGRAD, M. D., 164 So. 3d 1208 (Fla. 2015)

. . . Weingrad moved to reduce the award of noneconomic damages to $500,000 pursuant to section 766.118(2), . . . Weingrad’s motion, ruling that “retroactive application of section 766.118(2)(a) is constitutionally . . . Laforet, 658 So.2d 55, 61 (Fla.1995), the district court posited that whether section 766.118(4) is “ . . . Thus, the Raphael court concluded that section 766.118(4) may not be “retroactively enforced to impair . . . Notably, section 766.118 became effective on September 15, 2003. . . .

ESTATE OF McCALL, M. II, F. M. v. UNITED STATES, 571 F. App'x 744 (11th Cir. 2014)

. . . . § 766.118(2). . . . Stat. § 766.118, violate the right to equal protection under Article I, Section 2 of the Florida Constitution . . . Stat. § 766.118’s statutory cap on wrongful death noneconomic damages violates the Equal Protection Clause . . .

R. SHOEMAKER, D. O. v. SLIGER,, 141 So. 3d 1225 (Fla. Dist. Ct. App. 2014)

. . . Stephen Sliger, were whether the statutory cap on wrongful death non-economic damages found in section 766.118 . . . wherein the court held that the statutory cap on wrongful death non-economic damages provided in section 766.118 . . . review that reduces the award of -wrongful death non-economic damages to Sliger pursuant to section 766.118 . . . to enter an amended judgment in accordance with the jury verdict without any reduction under section 766.118 . . .

ESTATE OF McCALL, v. UNITED STATES, 134 So. 3d 894 (Fla. 2014)

. . . . § 766.118, VIOLATE THE RIGHT TO EQUAL PROTECTION UNDER ARTICLE I, SECTION 2 OF THE FLORIDA CONSTITUTION . . . STAT. § 766.118, VIOLATE THE RIGHT OF ACCESS TO THE COURTS UNDER ARTICLE I, SECTION 21 OF THE FLORIDA . . . STAT. § 766.118, violate the separation of powers guaranteed by ARTICLE II, SECTION 3 and ARTICLE V, . . . Stat. (2005) (incorporated in § 766.118(l)(b), Fla. Stat. (2005)). . . . See § 766.118(2), (3), Fla. Stat. . . . The federal district court then applied Florida’s statutory cap pursuant to section 766.118(2), Florida . . . Stat. § 766.118, violate the right of access to the courts under Article I, Section 21 of the Florida . . . Stat. § 766.118, violate the separation of powers guaranteed by Article II, Section 3 and Article V, . . . Florida’s Caps on Noneconomic Damages Section 766.118, Florida Statutes (2005), places limitations on . . . For cases involving nonpractitioners providing nonemergency care, the limitation is $750,000. § 766.118 . . . Florida’s statutory limitation on noneconomic damages to Michelle’s survivors, as set forth in section 766.118 . . . Section 766.118 provides in pertinent part as follows: (2) Limitation on noneconomic damages for negligence . . . As set forth by the plurality, because section 766.118(2) caps total noneconomic damages recoverable . . . (explaining that section 766.118 contains no requirement that insurance companies use the acquired savings . . . Finally, I strongly agree with the plurality that “even if a ‘crisis’ existed when section 766.118 was . . .

IN RE ACOSTA- GARRIGA, V. v. USA N. A., 506 B.R. 149 (M.D. Fla. 2013)

. . . governing setoff for a covenant not to sue); § 679.340 (governing setoff against a deposit account); § 766.118 . . .

FRANKS, v. BOWERS, M. D., 116 So. 3d 1240 (Fla. 2013)

. . . upon proving medical negligence, shall be entitled to recover damages subject to the limitations in s.766.118 . . . Stat. (2008) (providing that the caps under § 766.118, Fla. . . . .); § 766.118(2)(a)-(b), Fla. . . .

PEREZ, v. UNITED STATES, 883 F. Supp. 2d 1257 (S.D. Fla. 2012)

. . . . § 766.118, there is no need to reach that issue. . . . .

AMP SERVICES LIMITED, v. WALANPATRIAS FOUNDATION,, 73 So. 3d 346 (Fla. Dist. Ct. App. 2011)

. . . Thus, whether section 766.118(4), Florida Statutes, is a change or amendment that is substantive or procedural . . .

ESTATE OF McCALL, By Co- M. McCALL II, F. M. F. v. UNITED STATES, 642 F.3d 944 (11th Cir. 2011)

. . . . § 766.118, violates the Florida or United States Constitutions. . . . Stat. § 766.118(2). . . . Stat. § 766.118(3). . . . Stat. § 766.118(l)(c). . . . Stat. §§ 766.118(l)(c), 464.012, 458.311. . . .

FRANKS, Sr. v. BOWERS, M. D. M. III, M. D. P. A. a, 62 So. 3d 16 (Fla. Dist. Ct. App. 2011)

. . . See §§ 766.106(3)(b)(3); 766.207(2); 766.207(7); 766.118(2), Fla. Stat. . . . See §§ 766.207; 766.209; 766.118, Fla. Stat. . . .

M. D. a v. UNITED STATES, 745 F. Supp. 2d 1274 (M.D. Fla. 2010)

. . . Defendant has asserted Florida Statute § 766.118, which could serve to cap potential non-economic damages . . . Stat. § 766.118 with both the Florida and United States Constitutions. . . . Id. § 766.118(2)(a). . . . Id. § 766.118(2)(b). . . . Id. § 766.118(3). IV. . . .

PARHAM, L. v. FLORIDA HEALTH SCIENCES CENTER, INC. d b a, 35 So. 3d 920 (Fla. Dist. Ct. App. 2010)

. . . upon proving medical negligence, shall be entitled to recover damages subject to the limitations in s. 766.118 . . .

WEINGRAD, M. D. v. MILES, 29 So. 3d 406 (Fla. Dist. Ct. App. 2010)

. . . The sole issue before this Court is whether the retroactive application of section 766.118, Florida Statutes . . . The statute’s enabling clause, included as a footnote to section 766.118, states: It is the intent of . . . Governing Law and Analysis We review de novo whether the retroactive application of section 766.118, . . . The Legislature unambiguously provided that section 766.118 was to operate retrospectively and apply . . . Because the Florida Legislature’s intent to apply section 766.118 l’etroactively is clear and ambiguous . . .

ESTATE OF McCALL, v. UNITED STATES, 663 F. Supp. 2d 1276 (N.D. Fla. 2009)

. . . Stat. § 766.118(l)(b)). . . . Stat. § 766.118. . . . Stat. § 766.118(2). . . . Stat. § 766.118(l)(c). . . . . Stat. § 766.118(2)(b), (c). . . .

RAPHAEL, v. SHECTER,, 18 So. 3d 1152 (Fla. Dist. Ct. App. 2009)

. . . Then appellee moved to limit the non-economic damages to $150,000 per claimant pursuant to section 766.118 . . . Section 766.118, which placed limits on non-economic damages in medical malpractice cases, was adopted . . . When it adopted section 766.118(4), the Florida Legislature expressly stated the following intent to . . . Section 766.118(4), Florida Statutes, cannot be retroactively enforced to impair the appellant’s vested . . . We find that the retroactive application of section 766.118(4) does not pass the test set out in Chase . . .

CASTANEDA, Ad v. UNITED STATES M. D. S. M. M. D. M. D., 546 F.3d 682 (9th Cir. 2008)

. . . . § 766.118(2) ($500,000); Kan. Stat. Ann. § 60-3407(a) ($1 million). . . .

BRAVO, v. UNITED STATES M. D., 532 F.3d 1154 (11th Cir. 2008)

. . . . § 766.118(2)(b). . . . . § 766.118(2)(b). . . .

ADVISORY OPINION TO THE ATTORNEY GENERAL RE THE MEDICAL LIABILITY CLAIMANT S COMPENSATION AMENDMENT, 880 So. 2d 675 (Fla. 2004)

. . . See § 766.118, Fla. Stat. (2003). . . . See § 766.118, Fla. Stat. (2003). . . . See § 766.118, Fla. Stat. (2003). . . .