          Supreme Court of Florida
                                  ____________

                                  No. SC15-1858
                                  ____________

           NORTH BROWARD HOSPITAL DISTRICT, etc., et al.,
                          Appellants,

                                         vs.

                               SUSAN KALITAN,
                                   Appellee.

                                   [June 8, 2017]

PER CURIAM.

      This case is before the Court on appeal from a decision of the Fourth District

Court of Appeal, North Broward Hospital District v. Kalitan, 174 So. 3d 403 (Fla.

4th DCA 2015), which held section 766.118, Florida Statutes (2011), to be invalid.

We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the following reasons,

we affirm the Fourth District’s decision and hold that the caps on personal injury

noneconomic damages in medical negligence actions provided in section 766.118

violate the Equal Protection Clause of the Florida Constitution.1




      1. Because our conclusion regarding the invalidity of section 766.118 is
dispositive, we find it unnecessary to address the remaining constitutional
                    FACTS AND PROCEDURAL HISTORY

      This case arose after complications from carpal tunnel surgery left appellee

Susan Kalitan severely injured. After trial, Kalitan’s noneconomic damages were

capped by sections 766.118(2) and (3). Section 766.118(2) provides that in a cause

of action for personal injury arising from the medical negligence of practitioners,

the noneconomic damages award shall not exceed $500,000 per claimant;

however, if the negligence resulted in a permanent vegetative state or death, or if

the negligence caused a catastrophic injury and a manifest injustice would occur

unless increased damages are awarded, then damages may be awarded in an

amount up to $1 million. Section 766.118(3) similarly limits damages to $750,000

and $1.5 million, respectively, when the injury results from the negligence of

nonpractitioners. The Fourth District held that the statutory caps on noneconomic

damage awards in personal injury medical malpractice actions are unconstitutional,

relying on this Court’s decision in Estate of McCall v. United States, 134 So. 3d

894 (Fla. 2014), which held that the cap on wrongful death noneconomic damages

provided in section 766.118 violates the Equal Protection Clause of the Florida

Constitution. Art. I, § 2, Fla. Const.




challenges. Additionally, we decline to reach the issues raised by the parties that
do not fall under this Court’s mandatory jurisdiction.


                                         -2-
      The Fourth District presented the following facts of Kalitan’s injury and the

ensuing medical malpractice lawsuit:

      I. Background
             In 2007, Plaintiff went to defendant North Broward Hospital
      District (“the Hospital”) for outpatient surgery to treat carpal tunnel
      syndrome in her wrist. The surgery required Plaintiff to be placed
      under general anesthesia. . . .
             During intubation, as part of the administration of anesthesia
      for Plaintiff’s surgery, one of the tubes perforated Plaintiff’s
      esophagus. Prior to the surgery and intubation, Plaintiff had no
      problems with her esophagus, nor did she complain of any bodily pain
      unassociated with her carpal tunnel. . . .
             When Plaintiff awoke in recovery, she complained of
      excruciating pain in her chest and back. The Anesthesiologist was
      notified, and, unaware of the perforated esophagus, he ordered the
      administration of a drug for the chest pain and concluded that there
      was no issue with Plaintiff’s heart. Plaintiff was discharged from the
      hospital later that afternoon. Plaintiff’s neighbor picked her up and
      drove her home.
             The neighbor returned the next day to check on Plaintiff.
      Plaintiff was unresponsive, so the neighbor took her to the emergency
      room of a nearby hospital. Upon diagnosis of the problem, Plaintiff
      was rushed into lifesaving surgery to repair her esophagus. Plaintiff’s
      next memory was waking up in the intensive care unit after being in a
      drug-induced coma for several weeks. Plaintiff had additional
      surgeries and underwent intensive therapy to begin eating again and
      regain mobility. She testified that she continues to suffer from pain
      throughout the upper half of her body and from serious mental
      disorders as a result of the traumatic incident and the loss of
      independence because of her body’s physical limitations following
      this incident.
      II. Plaintiff’s Medical Malpractice Lawsuit
              Plaintiff filed a medical negligence action against Defendants.
      The issues at trial encompassed personal liability and vicarious
      liability for Plaintiff’s injuries, as well as the extent of the injuries and
      whether they amounted to “catastrophic injury” under section

                                          -3-
766.118(1)(a). At the end of Plaintiff’s case, all parties moved for
directed verdict on various grounds. Primarily, Defendants contended
that Plaintiff failed to meet the threshold for a determination of
catastrophic injury. . . .
       Ultimately, the trial court decided to submit [] two highly
contested issues to the jury as questions on the verdict form. . . . With
regard to catastrophic injury, the jury was asked to determine whether
Plaintiff suffered a “permanent impairment constituted by either . . .
[s]pinal cord injury involving severe paralysis of an arm, a leg, or the
trunk . . . [or] [s]evere brain or closed-head injury evidenced by a
severe episodic neurological disorder.”
        . . . [T]he jury determined that Plaintiff suffered catastrophic
injury in the form of a “[s]evere brain or closed-head injury evidenced
by a severe episodic neurological disorder” and awarded Plaintiff
$4,718,011 in total damages. The noneconomic damage awards were
$2 million for past pain and suffering and $2 million for future pain
and suffering.
       Multiple post-trial motions were filed, with Defendants
primarily challenging the jury’s finding of catastrophic injury by way
of severe brain or closed-head injury. Defendants argued that there
was no evidence in the record to support the jury’s finding of such an
injury. . . . All motions challenging the finding of catastrophic injury
[] were denied. The court also rejected Plaintiff’s challenge that the
section 766.118 caps on noneconomic damages in medical negligence
actions were unconstitutional.
       The trial court issued a written final judgment as to
damages. . . . The court [] limited the noneconomic damage awards
by the caps provided in section 766.118, Florida Statutes (2011), after
applying the increased cap for the finding of catastrophic injury,
because the court found that competent substantial evidence existed in
the record to support a finding of catastrophic injury under the
statutory definition as determined by the jury. As such, the
noneconomic damages award of $4 million was reduced by close to
$2 million by the “[l]imitation on noneconomic damages for
negligence of practitioners” under section 766.118(2) and
“[l]imitation on noneconomic damages for negligence of
nonpractitioner defendants” under section 766.118(3), Florida Statutes
(2011). Furthermore, the noneconomic damages award was further


                                  -4-
      reduced by about $1.3 million, as the Hospital’s share of liability was
      capped at $100,000 by virtue of the hospital’s status as a sovereign
      entity. § 768.28, Fla. Stat. (2007).

Kalitan, 174 So. 3d at 405-07.

      In its analysis with regard to Kalitan’s constitutional challenge to the caps,

the Fourth District observed that a majority of this Court in McCall determined that

the cap on wrongful death noneconomic damages under section 766.118 violates

the right to equal protection guaranteed by article I, section 2, of the Florida

Constitution. The district court described the facts of McCall and highlighted

relevant portions of the plurality and concurring in result opinions regarding the

arbitrariness of the cap and the lack of a legitimate government interest justifying

the cap. Although the Fourth District recognized that the decision in McCall was

limited to a determination that the cap on noneconomic damages is

unconstitutional in the context of wrongful death actions, it observed that section

766.118 applies to both wrongful death and personal injury actions. Thus, the

district court applied this Court’s rationale in McCall to the personal injury

context, concluding that “McCall mandates a finding that the caps in section

766.118 personal injury cases are similarly unconstitutional.” Id. at 405.




                                         -5-
Therefore, the Fourth District directed the trial court to reinstate the total damages

award as found by the jury. This appeal followed.2

                           STATUTORY PROVISION

      The issue before this Court concerns the caps on personal injury

noneconomic damages in medical negligence actions provided in section 766.118,

which states:

          (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. While this case was pending, the Second District Court of Appeal issued
Port Charlotte HMA, LLC v. Suarez, 210 So. 3d 187 (Fla. 2d DCA 2016), in which
it agreed with the Fourth District’s conclusion that the statutory caps on personal
injury noneconomic damages are unconstitutional.


                                         -6-
            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:
            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) 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.

§§ 766.118(2), (3), Fla. Stat.




                                       -7-
                 ESTATE OF MCCALL V. UNITED STATES

      To determine the constitutionality of this statute, we first examine McCall,

in which we held that the cap on wrongful death noneconomic damages provided

in section 766.118 is unconstitutional. 134 So. 3d at 897. The case involved an

action brought by the Estate of Michelle McCall, who died as a result of medical

negligence following the birth of her son. In McCall, we addressed certified

questions from the United States Court of Appeals for the Eleventh Circuit and

considered whether the cap on wrongful death noneconomic damages violates the

right to equal protection. The plurality opinion concluded that section 766.118

violates the Equal Protection Clause because the statutory cap “imposes unfair and

illogical burdens on injured parties” and “does not bear a rational relationship to

the stated purpose that the cap is purported to address, the alleged medical

malpractice insurance crisis in Florida.” Id. at 901.

      In analyzing the arbitrary distinctions created by the statute, the plurality

opinion concluded that the cap “irrationally impacts circumstances which have

multiple claimants/survivors differently and far less favorably than circumstances

in which there is a single claimant/survivor . . .” and that “under section 766.118,

the greater the number of survivors and the more devastating their losses are, the

less likely they are to be fully compensated for those losses.” Id. at 901-02.




                                         -8-
      Additionally, the plurality opinion described how the cap on noneconomic

damages arbitrarily discriminates between slightly and severely injured plaintiffs

while benefitting the tortfeasor. The opinion presented the following hypothetical

from the Supreme Court of Illinois:

             In the first example . . . three plaintiffs are injured as a result of
      the same tortfeasor’s negligence. Plaintiff A is injured moderately,
      and suffers pain, disability and disfigurement for a month. Plaintiff B
      is severely injured and suffers one year of pain and disability.
      Plaintiff C is drastically injured, and suffers permanent pain and
      disability. . . . [I]t is further assumed that a jury awards plaintiffs A
      and B $100,000 in compensatory damages for noneconomic injuries.
      Plaintiff C receives $1 million for his permanent, lifelong pain and
      disability.
             . . . With respect to plaintiff C, [the challenged legislation]
      arbitrarily and automatically reduces the jury’s award for a lifetime of
      pain and disability, without regard to whether or not the verdict,
      before reduction, was reasonable and fair.
             The tortfeasors in this example are also treated differently,
      without any justification. The tortfeasor who injures plaintiffs A and
      B is liable for the full amount of fairly assessed compensatory
      damages. In contrast, [the challenged legislation] confers a benefit on
      the similarly situated tortfeasor who injures plaintiff C. This
      tortfeasor pays only a portion of fairly assessed compensatory
      damages because of the limitation [on noneconomic damages].
      Therefore, the statute discriminates between slightly and severely
      injured plaintiffs, and also between tortfeasors who cause severe and
      moderate or minor injuries.

Id. at 902-03 (quoting Best v. Taylor Mach. Works, 689 N.E.2d 1057, 1075 (Ill.

1997)).

      Based on this analysis, the plurality opinion stated:




                                          -9-
             Section 766.118, Florida Statutes, has the effect of saving a
      modest amount for many by imposing devastating costs on a few—
      those who are the most grievously injured, those who sustain the
      greatest damage and loss, and multiple claimants for whom judicially
      determined noneconomic damages are subject to division and
      reduction simply based upon the existence of the cap. Under the
      Equal Protection Clause of the Florida Constitution, and guided by
      our decision in [St. Mary’s Hospital, Inc. v. Phillipe, 769 So. 2d 961
      (Fla. 2000)], we hold that to reduce damages in this fashion is not
      only arbitrary, but irrational, and we conclude that it “offends the
      fundamental notion of equal justice under the law.”

Id. at 903 (quoting Phillipe, 769 So. 2d at 972).

      The plurality opinion additionally concluded that the cap on noneconomic

damages “bears no rational relationship to a legitimate state objective, thereby

failing the rational basis test.” Id. at 905. The Florida Legislature’s purpose in

enacting the statute was to address the medical malpractice insurance crisis. See

ch. 2003–416, § 1, Laws of Fla., at 4035. “The Legislature asserted that the

increase in medical malpractice liability insurance premiums has resulted in

physicians leaving Florida, retiring early from the practice of medicine, or refusing

to perform high-risk procedures, thereby limiting the availability of health care.”

McCall, 134 So. 3d at 906. However, the plurality opinion determined that the

findings by the Legislature as to the existence of a medical malpractice crisis were

not fully supported by available data.

      The plurality opinion then declared that even if the Legislature’s findings

were true, “section 766.118 still violates Florida’s Equal Protection Clause because


                                         - 10 -
the available evidence fails to establish a rational relationship between a cap on

noneconomic damages and alleviation of the purported crisis.” Id. at 909. The

opinion observed a lack of evidence establishing a direct correlation between caps

and reduced malpractice premiums. Thus, it adopted the reasoning of the Texas

Supreme Court, which addressed whether caps on damages would lower insurance

premiums, observing: “[i]n the context of persons catastrophically injured by

medical negligence, we believe it is unreasonable and arbitrary to limit their

recovery in a speculative experiment to determine whether liability insurance rates

will decrease.” Id. at 912 (quoting Lucas v. United States, 757 S.W.2d 687, 691

(Tex. 1988)).

      Furthermore, the plurality opinion asserted that even if there existed a

medical malpractice crisis when the statute was enacted, “[c]onditions can change,

which remove or negate the justification for a law, transforming what may have

once been reasonable into arbitrary and irrational legislation.” Id. at 913. After

reviewing current data, the opinion declared that “no rational basis exists to justify

continued application of the noneconomic damages cap of section 766.118.” Id.

Ultimately, the plurality opinion concluded that “the cap on noneconomic damages

serves no purpose other than to arbitrarily punish the most grievously injured or

their surviving family members.” Id. at 914-15.




                                        - 11 -
      The concurring in result opinion agreed that “the arbitrary reduction of

survivors’ noneconomic damages in wrongful death cases based on the number of

survivors lacks a rational relationship to the goal of reducing medical malpractice

premiums.” Id. at 916 (Pariente, J., concurring in result). The concurring in result

opinion observed that “the only asserted legitimate State interest is the alleviation

of rising medical malpractice insurance premiums paid by the affected doctors.”

Id. at 919 (Pariente, J., concurring in result). However, the opinion determined that

“there is no mechanism in place to assure that savings are actually passed on from

the insurance companies to the doctors.” Id. (Pariente, J., concurring in result)

(citing plurality op. at 911-12 (Lewis, J.)). Moreover, the concurring in result

opinion agreed that a legislative finding that there was a medical malpractice crisis

does not establish a permanent condition because a statute may become

constitutionally invalid due to changed conditions. Id. at 920 (Pariente, J.,

concurring in result) (citing Mizrahi v. N. Miami Med. Ctr., Ltd., 761 So. 2d 1040,

1043 (Fla. 2000) (Pariente, J., dissenting)). Thus, it concluded that there was no

evidence of a continuing medical malpractice crisis that would justify the arbitrary

application of the statutory cap in wrongful death cases. Id. at 921 (Pariente, J.,

concurring in result).

      We now consider the applicability of McCall to the personal injury context

at issue in the present case.


                                        - 12 -
                              EQUAL PROTECTION

       “The determination of a statute’s constitutionality and the interpretation of a

constitutional provision are both questions of law reviewed de novo.” Shands

Teaching Hosp. & Clinics, Inc. v. Mercury Ins. Co. of Fla., 97 So. 3d 204, 209

(Fla. 2012) (quoting Fla. Dept. of Revenue v. City of Gainesville, 918 So. 2d 250,

256 (Fla. 2005)).

      The Florida Constitution declares that “[a]ll natural persons, female and

male alike, are equal before the law.” Art. I, § 2, Fla. Const. “The constitutional

right of equal protection of the laws means that everyone is entitled to stand before

the law on equal terms with, to enjoy the same rights as belong to, and to bear the

same burden as are imposed upon others in a like situation.” Caldwell v. Mann, 26

So. 2d 788, 790 (1946). “Unless a suspect class or fundamental right protected by

the Florida Constitution is implicated by the challenged provision, the rational

basis test will apply to evaluate an equal protection challenge.” McCall, 134 So.

3d at 901. “To satisfy the rational basis test, a statute must bear a rational and

reasonable relationship to a legitimate state objective, and it cannot be arbitrary or

capriciously imposed.” Id. (citing Dep’t of Corr. v. Fla. Nurses Ass’n, 508 So. 2d

317, 319 (Fla. 1987)); see also Amerisure Ins. Co. v. State Farm Mut. Auto. Ins.

Co., 897 So. 2d 1287, 1290 n.2 (Fla. 2005). Where a challenger fails to meet this




                                         - 13 -
burden, the statute must be upheld. Fla. High Sch. Activities Ass’n, Inc. v.

Thomas, 434 So. 2d 306, 308 (Fla. 1983).

      Here, we address whether sections 766.118(2) and 766.118(3) violate the

right to equal protection guaranteed by the Florida Constitution. Kalitan is not a

member of a suspect class; thus the rational basis test applies. Appellants argue

that the statutory caps in single claimant personal injury actions are constitutional

and that the Fourth District erred in determining that the reasoning in McCall

controls. However, we disagree and hold that the caps in section 766.118 violate

equal protection under the rational basis test because the arbitrary reduction of

compensation without regard to the severity of the injury does not bear a rational

relationship to the Legislature’s stated interest in addressing the medical

malpractice crisis.

                          Arbitrariness of Classification

      In McCall, we concluded that the cap on wrongful death noneconomic

damages imposed by section 766.118 arbitrarily diminished noneconomic damage

awards based on the number of survivors and lacked a rational relationship to

addressing the medical malpractice crisis. The Fourth District below determined

that the reasoning in McCall mandated a holding that the statutory caps in section

766.118 were similarly unconstitutional in personal injury actions because the

reasoning of the plurality and concurring in result opinions struck at the


                                        - 14 -
“underpinning of the Legislature’s cap on noneconomic damages in general.”

Kalitan, 174 So. 3d at 413. Based on the agreement between the plurality and

concurring in result opinions in McCall that there is no evidence of a continuing

medical malpractice crisis justifying the arbitrary application of the statutory cap,

we reach the same conclusion with regard to the unconstitutionality of the caps in

the present case.

       After the plurality opinion in McCall presented the hypothetical describing

discrimination between slightly and severely injured plaintiffs under a statutory

provision, it observed that section 766.118 has the effect of saving a modest

amount for many by imposing devastating costs on the most grievously injured,

and those who sustain the greatest damage and loss. McCall, 134 So. 3d at 903.

The plurality opinion concluded that reducing damages for the most grievously

injured is “not only arbitrary, but irrational, and . . . that it ‘offends the

fundamental notion of equal justice under the law.’ ” Id. (quoting Phillipe, 769 So.

2d at 972).

       Like the hypothetical statutory provision discussed in McCall, sections

766.118(2) and (3) create a similar distinction between classes of medical

malpractice victims, arbitrarily reducing the damages that may be awarded to the

most drastically injured victims. Section 766.118(2) provides a cap of $500,000 in

noneconomic damages to a plaintiff who suffers from a practitioner’s negligence


                                           - 15 -
and increases the cap to $1 million in the event of death, permanent vegetative

state, or “catastrophic injury” where a manifest injustice would occur unless

increased damages are awarded. Similarly, section 766.118(3) provides a cap of

$750,000 in noneconomic damages to a plaintiff who suffers from a

nonpractitioner’s negligence and increases the cap to $1.5 million in the event of

death, permanent vegetative state, or “catastrophic injury” where a manifest

injustice would occur unless increased damages are awarded.

      Notably, within the definition of “catastrophic injury,”3 in section

766.118(1)(a), the Legislature defined instances that range from amputation of a



      3. Section 766.118(1)(a) defines “catastrophic injury” as:
      [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

                                       - 16 -
hand to severe brain or closed-head injury. Thus, sections 766.118(2) and (3)

impose equal caps on noneconomic damages in instances where a plaintiff suffers

a permanent vegetative state, unquestionably a more serious injury, as in instances

where a plaintiff suffers the amputation of a hand, if a court determines a manifest

injustice would occur unless increased damages are awarded. Consequently,

sections 766.118(2) and (3) set forth the same problematic scheme that the

plurality opinion in McCall agreed created arbitrary and invidious discrimination

between claimants.

      To illustrate this example, we examine the hypothetical recovery of

noneconomic damages for plaintiffs A, B, and C under sections 766.118(2) and

(3). Plaintiff A suffers a moderate injury; therefore recovery is capped at $500,000

if caused by a practitioner and $750,000 if caused by a nonpractitioner. Plaintiff B

suffers a statutorily defined “catastrophic injury,” such as the loss of a hand;

therefore recovery may be capped at $1 million if caused by a practitioner and $1.5

million if caused by a nonpractitioner. Plaintiff C suffers a drastic injury, such as a

permanent vegetative state; therefore recovery is capped at $1 million if caused by



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

§ 766.118(1)(a), Fla. Stat.



                                        - 17 -
a practitioner and $1.5 million if caused by a nonpractitioner. Under these

circumstances, plaintiff A has the best chance of being fully compensated, plaintiff

B may have a chance of being fully compensated, and plaintiff C has utterly no

chance of being fully compensated. Clearly, under sections 766.118(2) and (3),

plaintiff C’s damages award is arbitrarily diminished, even though plaintiff C has

suffered the most grievous injury.

      The caps under section 766.118 do not pass the rational basis test because

“[i]n the context of persons catastrophically injured by medical negligence, we

believe it is unreasonable and arbitrary to limit their recovery in a speculative

experiment to determine whether liability insurance rates will decrease.” McCall,

134 So. 3d at 912 (quoting Lucas, 757 S.W.2d at 691). Moreover, we “fail to see

how singling out the most seriously injured medical malpractice victims for less

than full recovery bears any rational relationship to the Legislature’s stated goal of

alleviating the financial crisis in the medical liability insurance industry.” Univ. of

Miami v. Echarte, 618 So. 2d 189, 198 (Fla. 1993) (Barkett, C.J., dissenting).4

Therefore, we agree with the Fourth District’s conclusion:




       4. While in Echarte this Court upheld the constitutionality of a noneconomic
damages cap in medical malpractice arbitration proceedings, the dissenting
opinion’s discussion of the equal protection issue regarding the statute’s creation of
two classifications of medical malpractice victims proves insightful under the facts
at issue.


                                        - 18 -
             So long as the caps discriminate between classes of medical
      malpractice victims, as they do in the personal injury context (where
      the claimants with little noneconomic damage can be awarded all of
      their damages, in contrast to those claimants whose noneconomic
      damages are deemed to exceed the level to which the caps apply),
      they are rendered unconstitutional by McCall.

Kalitan, 174 So. 3d at 413.

      Accordingly, we conclude that the statutory caps in section 766.118

unreasonably and arbitrarily limit recovery of those most grievously injured by

medical negligence.

              Rational Relationship to Legitimate State Objective

      Although we conclude the arbitrary caps are not rationally related to

alleviating the purported medical malpractice crisis, we nonetheless consider the

legitimacy of the asserted state objective. In enacting section 766.118, the Florida

Legislature found that “Florida [was] in the midst of a medical malpractice

insurance crisis of unprecedented magnitude.” Ch. 2003-416, § 1, Laws of Fla., at

4035. However, in McCall, we observed a lack of evidence demonstrating how the

statutory cap alleviated this crisis, and thus determined that the cap failed the

rational basis test. The plurality opinion cited evidence that showed an increase in

income for insurance companies, yet declared that “[r]eports have failed to

establish a direct correlation between damage caps and reduced medical

malpractice premiums” that were intended to reduce instances of doctors leaving

Florida, retiring early, or refusing to perform high risk procedures. McCall, 134

                                         - 19 -
So. 3d at 910. The concurring in result opinion reiterated the plurality’s

observation that there is no mechanism in place to assure that savings are passed

on from the insurance companies to the doctors in accordance with the stated

purpose of alleviating the rising premiums. Id. at 919 (Pariente, J., concurring in

result).

       Furthermore, in McCall, we determined that even if the damages cap were

rationally related to a legitimate government purpose when the statute was enacted,

there is no evidence of a continuing crisis that would justify the arbitrary

application of the statutory cap. Both the plurality and concurring in result

opinions recognized that “[a] statute may be constitutionally valid when enacted

but may become constitutionally invalid because of changes in the conditions to

which the statute applies.” Id. at 913 (quoting Ferdon ex rel. Petrucelli v.

Wisconsin Patients Comp. Fund, 701 N.W.2d 440, 468 (Wis. 2005)); see also id. at

920 (Pariente, J., concurring in result) (quoting Mizrahi, 761 So. 2d at 1043

(Pariente, J., dissenting)). Moreover, the plurality opinion observed that “[a] law

depending upon the existence of an emergency or other certain state of facts to

uphold it may cease to operate if the emergency ceases or the facts change even

though valid when passed.” McCall, 134 So. 3d at 913 (quoting Chastleton Corp.

v. Sinclair, 264 U.S. 543, 547-48, (1924)). The plurality opinion explained: “even

if there had been a medical malpractice crisis in Florida at the turn of the century,


                                        - 20 -
the current data reflects that it has subsided. No rational basis currently exists (if it

ever existed) between the cap imposed by section 766.118 and any legitimate state

purpose.” Id. at 914. The concurring in result opinion agreed that there is no

evidence of a continuing medical malpractice crisis that would justify the arbitrary

reduction of damages. Id. at 921 (Pariente, J., concurring in result). Consequently,

we approve the Fourth District’s conclusion: “Because addressing the medical

malpractice crisis was the Legislature’s stated objective when passing section

766.118, if the objective no longer exists, then there is no longer a ‘legitimate state

objective’ to which the caps could ‘rationally and reasonably relate.’ ” Kalitan,

174 So. 3d at 411.

      We note that Kalitan’s reliance on McCall to establish that the statutory caps

failed the rational basis test satisfied her burden of proving that the statute is not

rationally related to a legitimate government interest. Accordingly, we hold that

the arbitrary caps on personal injury noneconomic damages in sections 766.118(2)

and (3) bear no rational relationship to a legitimate government interest.

                                   CONCLUSION

      We conclude that the caps on noneconomic damages in sections 766.118(2)

and (3) arbitrarily reduce damage awards for plaintiffs who suffer the most drastic

injuries. We further conclude that because there is no evidence of a continuing

medical malpractice insurance crisis justifying the arbitrary and invidious


                                         - 21 -
discrimination between medical malpractice victims, there is no rational

relationship between the personal injury noneconomic damage caps in section

766.118 and alleviating this purported crisis. Therefore, we hold that the caps on

personal injury noneconomic damages provided in section 766.118 violate the

Equal Protection Clause of the Florida Constitution.

      Accordingly, we affirm the Fourth District’s decision, and remand to the

district court for further proceedings consistent with this opinion.

      It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur.
POLSTON, J., dissents with an opinion, in which CANADY and LAWSON, JJ.,
concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.

POLSTON, J., dissenting.

      Just as I dissented to the erroneous plurality and concurring in result

decisions in Estate of McCall v. United States, 134 So. 3d 894 (Fla. 2014), I

dissent to the majority’s decision in this case. The majority continues to disregard

our precedent’s rational basis standard as well as the Legislature’s policymaking

role in our constitutional system. Under a proper rational basis analysis, the cap on

noneconomic damages in section 766.118, Florida Statutes, easily passes

constitutional muster.




                                        - 22 -
       The Florida Constitution guarantees that “[a]ll natural persons, female and

male alike, are equal before the law.” Art. I, § 2, Fla. Const. Our precedent has

interpreted this provision consistently with interpretations of the equal protection

clause in the federal constitution. See, e.g., Duncan v. Moore, 754 So. 2d 708, 712

(Fla. 2000). And because the classification alleged in this case does not involve a

protected class or a fundamental right, this Court must employ the rational basis

test. Id.

       “Under a ‘rational basis’ standard of review a court should inquire only

whether it is conceivable that the regulatory classification bears some rational

relationship to a legitimate state purpose.” Fla. High Sch. Activities Ass’n v.

Thomas, 434 So. 2d 306, 308 (Fla. 1983). “The burden is upon the party

challenging the statute or regulation to show that there is no conceivable factual

predicate which would rationally support the classification under attack.” Id.

Furthermore, under the rational basis test, “[i]t is not the court’s function to

determine whether the legislation achieves its intended goal in the best manner

possible, but only whether the goal is legitimate and the means to achieve it are

rationally related to the goal.” Loxahatchee River Envtl. Control Dist. v. Sch. Bd.

of Palm Beach Cty., 496 So. 2d 930, 938 (Fla. 4th DCA 1986).

       Here, when enacting the noneconomic damages cap in section 766.118, the

Legislature found that Florida’s medical malpractice crisis “threatens the quality


                                         - 23 -
and availability of health care for all Florida citizens,” that the “cost of medical

malpractice insurance has increased dramatically during the past decade,” and that

“both the increase and the current cost are substantially higher than the national

average.” Ch. 2003-416, at § 1, Laws of Fla. The Florida Legislature concluded

that physicians are forced “to practice medicine without professional liability

insurance, to leave Florida, to not perform high-risk procedures, or to retire early

from the practice of medicine.” Id. The Florida Legislature also found that “there

are certain elements of damage presently recoverable that have no monetary value,

except on a purely arbitrary basis, while other elements of damage are either easily

measured on a monetary basis or reflect ultimate monetary loss” and that “the high

cost of medical malpractice claims can be substantially alleviated by imposing a

limitation on noneconomic damages in medical malpractice actions.” Id.

      No one disputes that increasing the availability, quality, and affordability of

healthcare in Florida constitutes a legitimate state interest. This Court also has

acknowledged that a medical malpractice insurance crisis constitutes a legitimate

state interest under the rational basis test. See Mizrahi v. N. Miami Med. Ctr.,

Ltd., 761 So. 2d 1040, 1042 n.3 (Fla. 2000); Univ. of Miami v. Echarte, 618 So. 2d

189, 196-97 (Fla. 1993). Furthermore, the Legislature’s policy choice of a cap on

noneconomic damages is rationally related to these legitimate state interests

because “limiting claims that may be advanced by some claimants would


                                         - 24 -
proportionally limit claims made overall and would directly affect the cost of

providing health care by making it less expensive and more accessible.” Mizrahi,

761 So. 2d at 1043. Therefore, applying the proper rational basis test, it is clear

that the statutory cap does not violate Florida’s guarantee of equal protection.

      Importantly, under the proper rational basis test, it is immaterial that the

majority of this Court disagrees with the Legislature’s evidence regarding whether

there was (or currently is) a medical malpractice crisis in Florida. It is also

immaterial that a majority of this Court questions whether the Legislature’s policy

choice of enacting a cap on noneconomic damages has resulted in insurance

companies passing along savings to their physician customers.

      Instead, under the rational basis test, “[t]he burden is upon the party

challenging the statute . . . to show that there is no conceivable factual predicate

which would rationally support the classification under attack.” Fla. High Sch.

Activities Ass’n, 434 So. 2d at 308. In fact, “a legislative choice is not subject to

courtroom fact-finding and may be based on rational speculation unsupported by

evidence or empirical data.” F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 315

(1993). “A State, moreover, has no obligation to produce evidence to sustain the

rationality of a statutory classification.” Heller v. Doe, 509 U.S. 312, 320 (1993).

Thus, under the dictates of the rational basis test, if we can conceive of a possible

factual predicate that provides a rational basis in furtherance of a legitimate state


                                         - 25 -
interest, the statute does not violate the constitutional guarantee of equal

protection.

      Applying the proper rational basis standard, as I explained in my dissent in

McCall,

      the Florida Legislature could have rationally believed that the cap on
      noneconomic damages under section 766.118(2)(b) would reduce
      malpractice damage awards, which would thereby increase
      predictability in the medical malpractice insurance market and lead to
      reduced insurance premiums. Then, as a result of decreased insurance
      premiums, physicians would be more willing to stay in Florida and
      perform high-risk procedures at a lower cost to Floridians.

134 So. 3d at 930 (Polston, J., dissenting) (footnote omitted); see also M.D. v.

United States, 745 F. Supp. 2d 1274, 1281 (M.D. Fla. 2010) (“A cap applicable to

each occurrence, in cooperation with caps individually applicable to each claimant,

reduces damage awards as a matter of mathematical certainty, enhances needed

predictability, places a calculable limit on the exposure of healthcare and insurance

providers, reduces malpractice insurance premiums, and promotes the availability

of quality healthcare.”). Additionally, “the Legislature simply may have felt that it

was fairer to malpractice plaintiffs in general to reduce only the very large

noneconomic damage awards, rather than to diminish the more modest recoveries

for pain and suffering and the like in the great bulk of cases.” Fein v. Permanente

Med. Grp., 695 P.2d 665, 683 (Cal. 1985); see also Smith v. Botsford Gen. Hosp.,

419 F.3d 513, 520 (6th Cir. 2005) (“By limiting at least one component of health


                                         - 26 -
care costs, the noneconomic damages limitation is rationally related to its intended

purpose.” (quoting Zdrojewski v. Murphy, 657 N.W.2d 721, 739 (Mich. Ct. App.

2002))); Boyd v. Bulala, 877 F.2d 1191, 1197 (4th Cir. 1989) (holding that

statutory cap on all damages, including noneconomic damages, does not violate

equal protection because it “bears a reasonable relation to a valid legislative

purpose—the maintenance of adequate health care services in the Commonwealth

of Virginia”); Davis v. Omitowoju, 883 F.2d 1155, 1158 (3d Cir. 1989)

(“Clearly[,] the Virgin Island’s decision to curb, through legislation, the high costs

of malpractice insurance and thereby promote quality medical care to the residents

of the islands, provides a rational basis for capping the amount of damages that can

be awarded a plaintiff.”); Lucas v. United States, 807 F.2d 414, 422 (5th Cir. 1986)

(“Lucas has failed to convince us that there is no reasonable basis for the Texas

legislature to conclude that this ceiling on recovery . . . is not conceivably related

to the availability and cost of malpractice insurance and that such insurance and the

distribution of medical care in Texas are not conceivably linked.”); Hoffman v.

United States, 767 F.2d 1431, 1437 (9th Cir. 1985) (“It was reasonable for the

lawmakers to believe that placing a ceiling on noneconomic damages would help

reduce malpractice insurance premiums.”).

      Accordingly, the cap on noneconomic damages in medical malpractice

actions is rationally related to the legitimate state interest of increasing the


                                          - 27 -
affordability, availability, and quality of medical care in Florida. Therefore, under

the proper rational basis test that our long-standing precedent requires, the cap in

section 766.118 passes constitutional muster.

      Moreover, as I explained in my dissent in McCall, the statutory “limitations

on noneconomic damages are part of an overall legislative plan enacted in 2003 to

address the rising costs of medical liability insurance and the affordability and

availability of healthcare in Florida[:]”

      Other components of the plan include new healthcare facilities
      regulations, insurance regulation, license requirements, and agency
      requirements. [See ch. 2003-416, Laws of Fla.]
              The legislative effort began with the convening of the House
      Select Committee on Medical Liability Insurance, which “conducted
      an inquiry into the possible causes and potential solutions to the
      vexing problems associated with the availability of medical liability
      insurance in Florida.” Fla. H. Select Comm. on Med. Liab. Ins.,
      Select Comm. on Med. Liab. Ins. Rep., at 2 (March 2003) (available
      at Fla. Dept. of State, Fla. State Archives, Tallahassee, Fla.). The
      Select Committee examined “how the reduced availability of
      affordable medical liability insurance affects the availability of
      medical services” and was “mindful of the need to maintain the right
      of access to redress when citizens are harmed during the delivery of
      medical services.” Id. at 3. The Select Committee held a series of
      meetings in Tallahassee, held four hearings outside the capital, and
      published an 82 page report (not including appendices). Id. It
      “received testimony from experts in each of the professional areas
      impacted” and reviewed records from efforts to address prior crises.
      Id. at 4.
              The Select Committee also reviewed the record of the
      Governor’s Select Task Force on Health Care Professional Liability
      Insurance, which produced a “345 page report as well as thirteen
      volumes of supportive materials.” Id. at 9. The Governor’s Task
      Force “undertook a comprehensive review of published studies and
      relevant literature” and held ten meetings at which it received

                                            - 28 -
       extensive testimony and information. Gov.’s Select Task Force on
       Healthcare Prof. Liab. Ins., Gov.’s Task Force on Healthcare Prof.
       Liab. Ins. Rep., at 3, iv (2003).

134 So. 3d at 924-25 (Polston, J., dissenting).

       The majority just discards and ignores all of the Legislature’s work and fact-

finding. But, under our constitutional system, it is the Legislature, not this Court,

that is entitled to make laws as a matter of policy based upon the facts it finds. See

art. II, § 3, Fla. Const.; art. III, § 1, Fla. Const. It is the Legislature’s task to decide

whether a medical malpractice crisis exists, whether a medical malpractice crisis

has abated, and whether the Florida Statutes should be amended accordingly. For a

majority of this Court to decide that a crisis no longer exists, if it ever existed, so it

can essentially change a statute and policy it dislikes, improperly interjects the

judiciary into a legislative function.

       I respectfully dissent.

CANADY and LAWSON, JJ., concur.

An Appeal from the District Court of Appeal – Statutory or Constitutional
Invalidity

       Fourth District - Case Nos. 4D11-4833, 4D11-4834, & 4D11-4806

       (Broward County)

Mark Hicks and Dinah Stein of Hicks, Porter, Ebenfeld & Stein, P.A., Miami,
Florida,




                                           - 29 -
      for Appellants North Broward Hospital District d/b/a Broward General
      Medical Center, Rob Alexander, M.D., Edward Punzalan, CRNA and
      ANESCO North Broward, LLC

Thomas A. Valdez and Jeffrey R. Creasman of Quintairos, Prieto, Wood & Boyer,
P.A., Tampa, Florida,

      for Appellants Barry University, Inc., and Eleidy Miedes, SRNA

Crane A. Johnstone and Scott P. Schlesinger of Schlesinger Law Offices, P.A.,
Fort Lauderdale, Florida; and Philip M. Burlington and Nichole J. Segal of
Burlington & Rockenbach, P.A., West Palm Beach, Florida,

      for Appellee

Pamela Jo Bondi, Attorney General, and Osvaldo Vazquez, Deputy Solicitor
General, Tallahassee, Florida,

      for Amicus Curiae State of Florida

Mark K. Delegal and Tiffany A. Roddenberry of Holland & Knight LLP,
Tallahassee, Florida; and William W. Large of Florida Justice Reform Institute,
Tallahassee, Florida,

      for Amici Curiae Florida Justice Reform Institute and Florida Hospital
      Association, Inc.

Tracy Raffles Gunn of Gunn Appellate Practice, P.A., Tampa, Florida,

      for Amicus Curiae Florida Justice Association




                                      - 30 -
