The Florida Supreme Court ruled recently that caps placed on medical malpractice damages in personal injury cases are unconstitutional.

The Florida cap was passed in 2003 as a way of controlling alleged skyrocketing malpractice insurance rates.

The court ruled on a case brought by Susan Kalitan, who sued multiple healthcare providers involved in her care after her esophagus was perforated during outpatient surgery for carpal tunnel syndrome. She ultimately received a verdict in excess of the amount allowable by law, explains her attorney, Scott Schlesinger, JD, partner with Schlesinger Law Offices in Fort Lauderdale, FL.

The jury awarded $4 million in noneconomic damages, but the amount was reduced by about $2 million due to the caps. Kalitan appealed and, in 2015, the 4th District Court of Appeal ruled that the damage caps were unconstitutional, pointing to the Florida Supreme Court’s 2014 decision in a similar setting involving a wrongful death case.

More than eight years after the original Kalitan verdict, the 4-3 ruling by the Florida Supreme Court puts an end to the controversy, Schlesinger says. The majority opinion noted that “Caps on noneconomic damages arbitrarily reduce damage awards for plaintiffs who suffer the most drastic injuries.” (For more information on this case, see the story in Legal Review & Commentary, included with this issue.)

While the law requiring caps differed per individual case, the recent ruling paves the way for any injured plaintiffs to challenge the caps, Schlesinger says.

Wisconsin may be on a similar path as Florida. An appellate court there made a similar ruling, determining that a $750,000 cap on medical malpractice claims is unconstitutional. The next stop is the Wisconsin Supreme Court.

The appellate court ruled that a Milwaukee woman who lost all four limbs should collect the $16.5 million for pain and suffering awarded to her and her husband, rather than the $750,000 maximum allowed by law.

“We conclude that the statutory cap on noneconomic damages is unconstitutional on its face,” Judge Joan Kessler wrote in the 19-page unanimous opinion by the three-judge First District Court of Appeals panel. “Wisconsin’s cap on noneconomic medical malpractice damages always reduces noneconomic damages only for the class of the most severely injured victims who have been awarded damages exceeding the cap, yet always allows full damages to the less severely injured malpractice victims.”

The Wisconsin case involved Ascaris Mayo, a 57-year-old mother of four who had her limbs amputated in 2011 after a Strep A infection that led to septic shock and the loss of all four limbs. Wisconsin law caps noneconomic damages in medical malpractice cases at $750,000, but does not put a ceiling on the amount that could be awarded for economic damages. The jury awarded economic damages of $8.8 million, but the jury’s $16.5 million award for noneconomic damages was reduced to the state cap.


  • Scott Schlesinger, JD, partner, Schlesinger Law Offices, Fort Lauderdale, FL. Telephone: (954) 866-5493.