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McCall v. U.S.

AARP Challenges Malpractice Damage Caps in Florida

AARP, labor unions and advocates for access to the courts filed a brief arguing that a Florida state law regarding medical malpractice that establishes a damages cap violates that state's constitutional protections guaranteeing a right of redress.


Michelle McCall's estate sued under the federal Tort Claims Act, claiming that her death was caused by medical malpractice. A court agreed and awarded the estate $2 million in economic (i.e., lost wages and actual costs) as well as noneconomic damages (i.e., pain and suffering). An appeals court cut that award in half, invoking limitations in Florida statutes regarding noneconomic damages. In 2003 Florida enacted a law capping noneconomic damages in medical malpractice.

McCall's estate appealed, arguing that the statutory cap violated the federal and state constitutions. While finding the law did not violate the U.S. Constitution, the U.S. Court of Appeals for the 11th Circuit asked the Florida Supreme Court to determine whether the cap violated the Florida Constitution.

AARP's "friend of the court" brief in support of McCall's estate argues that the law runs afoul of the express access to court guaranteed under the Florida Constitution. The brief points out the test that a law limiting constitutional rights must meet and argues that Florida's damage cap does not meet these requirements. Specifically, the brief argues, the law was not based on sufficient factual evidence to justify such a draconian limitation and does not treat people equally under the law (penalizing lower earners and retirees for whom strictly economic damages would be very low), two requirements for any statute limiting constitutional protections.

What's at Stake

Caps on noneconomic damages penalize low income workers, limited income retirees and others whose economic damages would be inadequate to reflect the actual harm caused by medical malpractice. Moreover, by limiting those damages, the law removes a powerful incentive for medical providers to comply with the highest standard of care.

As AARP's brief notes, "In a variety of ways, a cap on damages, which penalizes the recovery of those who are not wealthy, the elderly, children and those who are hurt the most, and which targets the element of damages most important to those who are not wealthy" violates constitutional principles guaranteeing access to justice by all.

Case Status

The specific question in McCall v. U.S. is before the Supreme Court of Florida; the entire dispute is before the U.S. Court of Appeals for the 11th Circuit.

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