       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

NORTH BROWARD HOSPITAL DISTRICT d/b/a BROWARD GENERAL
 MEDICAL CENTER; BARRY UNIVERSITY, INC.; ELEIDY MIEDES,
 SRNA; ROB ALEXANDER, M.D.; ANESCO NORTH BROWARD, LLC;
              and EDWARD PUNZALAN, CRNA;
                Appellants/Cross-Appellees,

                                     v.

                           SUSAN KALITAN,
                        Appellee/Cross-Appellant.

              Nos. 4D11-4806, 4D11-4833, and 4D11-4834

                              [July 1, 2015]

   Consolidated appeals and cross-appeal from the Circuit Court for the
Seventeenth Judicial Circuit, Broward County; Jack Tuter, Judge; L.T.
Case No. 08-29706 19.

   Heath & Carcioppolo, Chartered, Quintairos, Prieto, Wood & Boyer,
P.A., Fort Lauderdale; Dinah Stein and Gary Magnarini of Hicks, Porter,
Ebenfeld & Stein, P.A., Miami, for appellants/cross-appellees North
Broward Hospital District d/b/a Broward General Medical Center, Rob
Alexander, M.D., Edward Punzalan, CRNA, and Anesco North Broward,
LLC.

   Jeffrey R. Creasman and Thomas A. Valdez of Quintairos, Prieto, Wood
& Boyer, P.A., Tampa, for appellants/cross-appellees Barry University,
Inc., and Eleidy Miedes, SRNA.

   Crane Johnstone of Schlesinger Law Offices, P.A., Fort Lauderdale;
Philip M. Burlington and Nichole J. Segal of Burlington & Rockenbach,
P.A., West Palm Beach, for appellee/cross-appellant Susan Kalitan.

FORST, J.

   In Estate of McCall v. United States, 134 So. 3d 894 (Fla. 2014), the
Florida Supreme Court determined that the caps on noneconomic
damages awards in wrongful death cases, imposed by section 766.118,
Florida Statutes (2005), violated the equal protection clause of the Florida
Constitution. Art. I, § 2, Fla. Const. The instant case consolidates three
appeals from a single medical malpractice incident with a final judgment
finding Appellants, defendants below (“Defendants”), liable for the injuries
and damages suffered by Appellee Susan Kalitan (“Plaintiff”). Plaintiff’s
jury-awarded damages were limited by the trial court’s application of
section 766.118, and Plaintiff’s cross-appeal challenges the
constitutionality of those caps.

   Accordingly, this appeal presents an issue of first impression in the
post-McCall legal environment—whether the opinion (or, more accurately,
opinions) of the Florida Supreme Court in McCall dictates our holding that
the caps on noneconomic damage awards in personal injury medical
malpractice cases are similarly unconstitutional. Although Defendants
attempt to distinguish the caps in wrongful death cases from those in
personal injury cases, and there are clear distinctions, McCall mandates a
finding that the caps in section 766.118 personal injury cases are similarly
unconstitutional.     To conclude otherwise would be disingenuous.
Consequently, we reverse the trial court’s decision below insofar as it
reduced the jury’s award of noneconomic damages based on the caps in
section 766.118.

                                 Introduction

    In addition to Plaintiff’s cross-appeal challenge to the constitutionality
of the noneconomic damages caps, this case also involves Defendants’
challenges to the apportionment of liability amongst the six defendants, as
well as the determination that the noneconomic damages were caused by
a “catastrophic injury.” Our holding on the constitutionality of the caps
renders several of the issues raised by Defendants on appeal moot. As for
the one ruling still at issue, we reverse the final judgment with respect to
its finding defendant Barry University (“University”) vicariously liable for
the conduct of defendant Edward Punzalan, CRNA (“the Nurse”).

   Our opinion will first present the events that led to Plaintiff’s medical
malpractice lawsuit. Second, we will review the trial court proceedings
and decision. Third, we will discuss McCall, which addressed the
constitutionality of noneconomic damages caps limiting awards in
wrongful death actions. Fourth, we will apply McCall’s holding to the
instant appeal. Fifth, we will address the University’s liability for the
Nurse’s actions.

I.    Background

    In 2007, Plaintiff went to defendant North Broward Hospital District
(“the Hospital”) for outpatient surgery to treat carpal tunnel syndrome in

                                      2
her wrist. The surgery required Plaintiff to be placed under general
anesthesia. Defendant Dr. Robert Alexander (“the Anesthesiologist”) was
the anesthesiologist of record providing anesthesia care to Plaintiff during
her surgery. The Anesthesiologist’s team included the Nurse, as well as
defendant Eleidy Miedes, a student nurse anesthetist from the University
(“the Student”).       All three individuals were present through the
coordination of defendant Anesco North Broward, LLC (“Anesco”), a
company that contracted with the Hospital to staff it with anesthesiologists
and nurse anesthetists. Anesco also contracted with the University to
facilitate the clinical training of the University’s student registered nurse
anesthetists (“SRNAs”) at Anesco’s affiliates, including the Hospital. At the
time of the surgery, the Nurse was an employee of Anesco as a certified
registered nurse anesthetist and an employee of the University as its
clinical coordinator for the SRNA program.

    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. Plaintiff’s hospital records do not indicate which member
of the team actually intubated Plaintiff, but the Anesthesiologist testified
that it was he, not the Nurse nor the Student, who performed the
intubation.

   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 life-
saving 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

                                     3
    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 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. Plaintiff moved for directed
verdict as to the University’s liability for the Nurse’s actions, but the
University objected, arguing that Plaintiff never had alleged such a claim
in the case.

   Ultimately, the trial court decided to submit these two highly contested
issues to the jury as questions on the verdict form. With respect to the
University’s vicarious liability for the Nurse, the jury was asked whether
the Nurse was acting as the University’s agent or employee when he was
supervising the Student during the administration of the anesthesia to
Plaintiff. 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.”

    The jury found in Plaintiff’s favor and apportioned liability as directed
on the verdict form. The jury also found that the Nurse was acting as the
University’s agent or employee when supervising the Student during the
administration of anesthesia to Plaintiff. Finally, the 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. The University
also challenged the finding of an agency relationship with the Nurse in
light of the fact that Plaintiff never had pled vicarious liability between
those parties. All motions challenging the finding of catastrophic injury
and the vicarious liability issue were denied. The court also rejected
Plaintiff’s challenge that the section 766.118 caps on noneconomic
damages in medical negligence actions were unconstitutional.


                                      4
    The trial court issued a written final judgment as to damages. The final
judgment provided that the University was responsible, along with the
Nurse and Anesco, for the sum attributable to the Nurse’s percentage of
liability. The court also 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
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). The instant appeals followed.

III.   Estate of McCall v. United States

    Michelle McCall received prenatal medical care at a United States Air
Force clinic. Estate of McCall v. United States, 642 F.3d 944, 946 (11th
Cir. 2011). Because of the negligence of the Air Force doctors and nurses
during childbirth, Ms. McCall died. Id. at 947. The petitioners (the estate
of Ms. McCall, Ms. McCall’s parents, and the father of Ms. McCall’s son)
filed an action against the United States under the Federal Tort Claims
Act. Id. at 946-47. The United States District Court for the Northern
District of Florida determined that the petitioners’ economic damages, or
financial losses, amounted to $980,462.40. Id. at 947. The district court
concluded that the petitioners’ noneconomic damages totaled $2 million,
including $500,000 for Ms. McCall’s son and $750,000 for each of her
parents. Id. The district court, however, limited the petitioners’ aggregate
recovery of wrongful death noneconomic damages to $1,000,000 upon
application of section 766.118(2), Florida Statutes (2005). Id. at 947-48.

    The district court rejected the petitioners’ challenge to the
constitutionality of Florida’s statutory noneconomic damages caps in
wrongful death cases. Id. at 947. On appeal to the Eleventh Circuit, the
petitioners challenged the district court’s rulings with regard to “both the
application and the constitutionality of Florida’s cap[s] on noneconomic
damages for medical malpractice claims.” Id. at 948. The Eleventh Circuit
affirmed the application of the caps on noneconomic damages and held
that the statute does not violate either the Equal Protection Clause or the
Takings Clause of the United States Constitution. Id. at 949-53. The

                                     5
Eleventh Circuit, however, granted the petitioners’ motion to certify four
questions to the Florida Supreme Court regarding the remaining
challenges to the statutory caps under the Florida Constitution. Id. at
952-53.

   The sole question addressed by the Florida Supreme Court’s plurality
and concurring opinions in McCall was whether the statutory caps on
wrongful death noneconomic damages under section 766.118 violate the
right to equal protection guaranteed by the Florida Constitution. McCall,
134 So. 3d at 900. Five justices agreed that the caps violate the right to
equal protection under our state constitution. As their analyses compel
our holding in the instant case, we discuss them at length below.

      A. The Plurality Opinion

    The plurality opinion, written by Justice Lewis and joined by Justice
Labarga, began by directing attention to whether there was an equal
protection violation. Justice Lewis concluded that the caps “irrationally
impact[] circumstances which have multiple claimants/survivors
differently and far less favorably than circumstances in which there is a
single claimant/survivor.” Id. at 901. Under the statutory scheme, “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
902. To assist in illustrating the arbitrariness of the caps, Justice Lewis
borrowed a hypothetical from the Supreme Court of Illinois that, like the
case before us, involves caps on the amount an individual victim can be
awarded for noneconomic injuries:

      [T]hree 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.


                                     6
         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 (emphasis in original) (quoting Best v. Taylor Mach. Works,
689 N.E. 2d 1057, 1075 (Ill. 1997)). The plurality opinion stressed the
“arbitrary and invidious discrimination between” claimants prior to
conducting “a comprehensive equal protection analysis of the cap[s] on
damages in section 766.118 . . . to resolve the certified question.” Id. at
905.

    Pursuant to the first prong of the rational basis test, the plurality
opinion analyzed “‘whether the challenged statute serves a legitimate
governmental purpose.’” Id. at 905 (quoting Warren v. State Farm Mut.
Auto. Ins. Co., 899 So. 2d 1090, 1095 (Fla. 2005)). It concluded that “the
Legislature’s determination that the ‘the increase in medical malpractice
liability insurance rates is forcing physicians 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’ is
unsupported.” Id. at 909 (quoting Ch. 2003–416, § 1, Laws of Fla., at
4035).

    Although the plurality did not expressly conclude that there was no
legitimate public purpose for enacting the caps originally, the plurality
opinion’s discussion of the evidence points toward this conclusion.
However, in addressing the second prong of the rational basis test, the
next portion of the plurality opinion advanced on the assumption that
there was a legitimate public purpose (“a dangerous risk of physician
shortage due to malpractice premiums”) when the statute was enacted,
and then questioned whether there currently exists “a rational relationship
between a cap on noneconomic damages and alleviation of the purported
[medical malpractice] crisis.” Id. at 909. The plurality opinion found that
“the available evidence fails to establish” such a legitimate relationship,
id., as “[r]eports have failed to establish a direct correlation between
damages caps and reduced malpractice premiums.” Id. at 910.

                                     7
   Finally, the plurality opinion discussed the current status of medical
malpractice in Florida, noting 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.” Id. at 913 (quoting Chastleton Corp. v. Sinclair, 264 U.S.
543, 547-48 (1924)). The plurality opinion determined that,

         [E]ven if there had been a medical malpractice crisis in Florida
         at the turn of the century, 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. At the present time, 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 (citation omitted). The plurality opinion concluded that the
cap on wrongful death noneconomic damages “does not pass
constitutional muster,” id. at 915, as the cap “fails the rational basis test
and violates the Equal Protection Clause of the Florida Constitution.” Id.
at 912.

         B. The Concurring Opinion

    Justice Pariente, joined by Justices Quince and Perry, authored a
concurring opinion asserting “that the noneconomic damages cap violates
Florida’s Equal Protection Clause as applied to wrongful death actions
under the constitutional rational basis test.” See id. at 918 (Pariente, J.,
concurring). The concurring opinion, in relevant part, began with the
declaration that “the only asserted legitimate State interest is the
alleviation of rising medical malpractice insurance premiums paid by the
affected doctors. However . . . there is no mechanism in place to assure
that savings are actually passed on from the insurance companies to the
doctors.” Id. at 919 (citing to plurality opinion at 911-12). Additionally,
the concurring opinion “strongly agree[d]” with the plurality opinion that
a medical malpractice crisis no longer exists. Id. at 920-21.

         C. Points of Agreement among the Five Justice Majority

  In summary, five of the seven justices1 in McCall held that the
noneconomic damages caps encompassed in section 766.118, as applied

1   Justice Polston wrote a dissenting opinion, joined by Justice Canady.

                                         8
to wrongful death actions, violate the Equal Protection Clause of the
Florida Constitution. The two opinions for the five-justice majority
conclude that, even assuming there was a legitimate interest when section
766.118 was enacted, “the current data reflects that it has subsided” and
no legitimate interest remains. Id. at 914 (Lewis, J., plurality opinion); see
also id. at 920 (Pariente, J., concurring).2

IV.   Application of McCall to Personal Injury Medical Malpractice
      Damage Awards

      A. Standard of Review

    The determination of a statute’s constitutionality is a question of law,
and, therefore, is subject to de novo review. City of Fort Lauderdale v.
Gonzalez, 134 So. 3d 1119, 1121 (Fla. 4th DCA 2014). As such, “no
deference is given to the judgment of the lower court[].” D’Angelo v.
Fitzmaurice, 863 So. 2d 311, 314 (Fla. 2003).

      B. Analysis

   As mandated by the Florida Constitution, “All natural persons, female
and male alike, are equal before the law . . . .” Art. I, § 2, Fla. Const.
Accordingly, “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.” McCall, 134 So. 3d at 901
(quoting Caldwell v. Mann, 26 So. 2d 788, 790 (Fla. 1946)).

   Because the damage caps do not implicate either a suspect class or
fundamental right, we utilize, consistent with the plurality and concurring
opinions in McCall, the rational basis test to discern the caps’
constitutionality. Id. To maintain constitutionality under 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 Corrs. v. Fla. Nurses Ass’n, 508 So. 2d 317,
319 (Fla. 1987)).



2 The concurring opinion took note of the plurality opinion’s discussion of
subdivision (8) of the statute that “appear[ed] to compel medical malpractice
insurance companies to reduce their rates in response to the 2013 legislation[.]”
McCall, 134 So. 3d at 911 (discussing § 627.062(8), Fla. Stat. (2003)). Both
opinions noted that, by 2011, subdivision (8) had been repealed from the statute,
“having been designated ‘obsolete’ by the Legislature.” Id. at 912 (referencing Ch.
2011-39, § 12, Laws of Fla., at 514, 536-37).

                                        9
    The Florida Legislature, in passing section 766.118, 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, the McCall concurring opinion (noting agreement with the
plurality opinion) concluded that the medical malpractice “crisis” no longer
exists and, consequently, there is no justification for “the arbitrary
reduction of survivors' noneconomic damages in wrongful death cases
based on the number of survivors . . . without any commensurate benefit
to the survivors and without a rational relationship to the goal of reducing
medical malpractice premiums.” McCall, 134 So. 3d at 921 (Pariente, J.,
concurring).

    Although McCall’s plurality and concurring opinions specifically
addressed only the caps on noneconomic damages awarded to survivors
in wrongful death actions, section 766.118 applies to both personal injury
and wrongful death actions. See § 766.118(2)(a), Fla. Stat. (2011).
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 “rational[ly] and reasonabl[y] relat[e].” McCall, 134 So. 3d at
901. Per the McCall plurality and concurring opinions, we are compelled
to conclude that section 766.118 presently lacks a rational and reasonable
relation to any state objective, and thus fails both the concurring opinion’s
“smell test” as well as the rational basis test. Id. at 920 (Pariente, J.,
concurring).

   Therefore, adhering to McCall, the section 766.118 caps are
unconstitutional not only in wrongful death actions, but also in personal
injury suits as they violate equal protection. It makes no difference that
the caps apply horizontally to multiple claimants in a wrongful death case
(as in McCall) or vertically to a single claimant in a personal injury case
who suffers noneconomic damages in excess of the caps (as is the case
here). Whereas the caps on noneconomic damages in section 766.118 fully
compensate those individuals with noneconomic damages in an amount
that falls below the caps, injured parties with noneconomic damages in
excess of the caps are not fully compensated.

   Due to the equal protection analysis and application of McCall to
medical malpractice cases, we need not address Plaintiff’s additional
claims regarding access to courts or right to jury trial.

      C. Retroactivity of McCall


                                     10
   Defendants have argued in their briefs that, in the event this court finds
McCall is applicable to personal injury cases, we should not apply that
ruling retroactively and instead “the decision should apply prospectively
only to actions that have not yet been filed.” McCall is silent as to whether
the decision applies to pending cases or prospectively only. The Florida
Supreme Court “has the sole power to determine whether [its] decision
should be prospective or retroactive in application.”            Benyard v.
Wainwright, 322 So. 2d 473, 474 (Fla. 1975) (citing Linkletter v. Walker,
381 U.S. 618 (1965)). In each of the cases cited by Defendants in support
of their prospective application argument, the Florida Supreme Court
explicitly determined that its decision should be applied prospectively.
See, e.g., Martinez v. Scanlan, 582 So. 2d 1167, 1176 (Fla. 1991); Aldana
v. Holub, 381 So. 2d 231, 238 (Fla. 1980); Interlachen Lakes Estates, Inc.
v. Snyder, 304 So. 2d 433, 435 (Fla. 1973); Gulesian v. Dade Cnty. Sch.
Bd., 281 So. 2d 325, 326-27 (Fla. 1973). In none of these cases did a
District Court of Appeal limit a Supreme Court decision after-the-fact.
Accord Fla. Elks Children’s Hosp. v. Stanley, 610 So. 2d 538, 541 (Fla. 5th
DCA 1992) (holding that it would not apply a Supreme Court decision
prospectively where the court itself had not done so expressly).

    Here, the Supreme Court in McCall did not limit its holding to
prospective application. Moreover, the Fifth District Court of Appeal
recently withdrew its opinion in a wrongful death case for the purpose of
applying McCall retroactively. Shoemaker v. Sliger, 141 So. 3d 1225 (Fla.
5th DCA 2014). Finally, Florida’s “pipeline rule” requires that “disposition
of a case on appeal should be made in accord with the law in effect at the
time of the appellate court’s decision rather than the law in effect at the
time the judgment appealed was rendered.” Hendeles v. Sanford Auto
Auction, Inc., 364 So. 2d 467, 468 (Fla. 1978); see also Stanley, 610 So. 2d
at 541-42. Accordingly, we apply the dictates of McCall to the instant case.

V.    The University’s Vicarious Liability for the Nurse’s Actions

   The University maintains that the trial court erred in submitting to the
jury the question of an agency relationship between itself and the Nurse
at the time of the surgery. “A trial court is accorded broad discretion in
formulating appropriate jury instructions and its decision should not be
reversed unless the error complained of resulted in a miscarriage of justice
or the instruction was reasonably calculated to confuse or mislead the
jury.” Barton Protective Servs., Inc. v. Faber, 745 So. 2d 968, 974 (Fla. 4th
DCA 1999)).

   Generally, a defendant cannot “be found liable under a theory of
vicarious liability that was not specifically pled.” Goldschmidt v. Holman,

                                     11
571 So. 2d 422, 423 (Fla. 1990) (relying on Tamiami Trail Tours, Inc. v.
Cotton, 463 So. 2d 1126 (Fla. 1985)); see also Gen. Asphalt Co. v. Bob’s
Barricades, Inc., 22 So. 3d 697, 699 (Fla. 3d DCA 2009) (“Florida law is
clear that in order to pursue a vicarious liability claim, the claimant must
specifically plead it as a separate cause of action.”). Florida Rule of Civil
Procedure 1.110(b) requires a complaint to contain “a short and plain
statement of the ultimate facts showing that the pleader is entitled to
relief.”

    The exception to pleading the claim is trial by consent under Florida
Rule of Civil Procedure 1.190(b), which states, “When issues not raised by
the pleadings are tried by express or implied consent of the parties, they
shall be treated in all respects as if they had been raised in the pleadings.”
“An issue is tried by consent when there is no objection to the introduction
of evidence on that issue.” Scariti v. Sabillon, 16 So. 3d 144, 145-46 (Fla.
4th DCA 2009) (quoting LRX, Inc. v. Horizon Assocs. Joint Venture ex rel.
Horizon-ANF, Inc., 842 So. 2d 881, 887 (Fla. 4th DCA 2003)). However, the
Second District, in a detailed opinion on the issue, has noted that, “in at
least some cases[,] the mere failure of the opposing party to make an
objection at one isolated juncture of the case, whether due to mistake or
momentary lapse of attentiveness, may not be enough to establish that
party’s consent under rule 1.190(b).” Smith v. Mogelvang, 432 So. 2d 119,
124 (Fla. 2d DCA 1983). The court noted that “in a particular case in order
to show implied consent, the circumstances should establish lack of
unfairness to, or some true acquiescence by, the party opposing the new
issue.” Id. at 125.

    Whereas Plaintiff in the instant case specifically pled vicarious liability
between other parties in the operative complaint, Plaintiff did not make
any such specific claim for the University’s vicarious liability for the Nurse.
Specifically, Plaintiff failed to present “a short and plain statement of the
ultimate facts” to show that the Nurse was acting as the University’s agent
or employee when the Nurse was supervising the Student during the
administration of anesthesia in Plaintiff’s surgery. See Fla. R. Civ. P.
1.110(b). As such, the issue could be raised at trial only through consent
of the parties. Fla. R. Civ. P. 1.190(b).

   The record clearly evidences that the University did not expressly agree
to try the issue and any claim of implied consent fails. Throughout the
presentation of Plaintiff’s case, no evidence was offered specifically to
connect the Nurse’s actions in the operating room to his employment as
the University’s clinical coordinator, but rather the testimony revealed that
the Nurse was engaged in his employment with Anesco during that time.


                                      12
    At the end of Plaintiff’s case, Plaintiff read into evidence an admission
from the University during discovery: “As to the defendant, Barry
University, it’s admitted that [the Nurse] was acting within his capacity as
clinical coordinator on behalf of Barry University, Inc., at all times he was
supervising [the Student] at all times he was involved in the rendition of
anesthesia services to [Plaintiff] at [the Hospital] on November 6th, 2007.”
The University made no objection to this admission being read; however,
the University objected as soon as Plaintiff relied on the admission in
moving for directed verdict on the issue of the University’s vicarious
liability for the Nurse. The University maintained that the issue was
improper where it had not been pled and explained that the admission was
meant to admit that the Nurse was the clinical coordinator at the time of
the surgery and not an admission to vicarious liability, which the
University denied during discovery. Although the University failed to
object at the time the admission was read into evidence, this “mistake or
momentary lapse of attentiveness” would not be enough to allow trial by
implied consent where the University objected as soon as Plaintiff’s
intentions with the admission were made clear. See Smith, 432 So. 2d at
124. Therefore, we reverse the decision in the final judgment holding the
University liable, along with the Nurse and Anesco, for the damages award
against the Nurse.

                                Conclusion

   Per McCall, Plaintiff’s noneconomic damages were improperly limited by
the application of the caps in section 766.118 and, accordingly, we reverse
the noneconomic damages award in the final judgment. Defendants have
asked this court to distinguish single claimant personal injury cases from
the multiple claimant wrongful death situation addressed in McCall.
However, we have found no basis to do so that would not conflict with the
reasoning of the Florida Supreme Court’s plurality and concurring
opinions, which strike at the underpinning of the Legislature’s caps on
noneconomic damages in general. 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, notwithstanding the
Legislature’s intentions.

   The trial court is directed to reinstate the total damages award as found
by the jury, though these damages may still be limited by the doctrine of
sovereign immunity. Also, in the corrected final judgment, the University
is not to be held liable for the damages attributable to the Nurse. As no

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challenge was raised as to liability in any other context, nor was a
challenge raised regarding Plaintiff’s economic damages award, those
portions of the final judgment are affirmed.

   Reversed in part; affirmed in part.

CIKLIN, C.J., and STEVENSON, J., concur.

                            *        *     *

   Not final until disposition of timely filed motion for rehearing.




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