Florida Statute 766.118 | Lawyer Caselaw & Research

The 2024 Florida Statutes

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 Citing Statute 766.118

Total Results: 20

HEALTHCARE UNDERWRITERS GROUP, INC., AMARNATH VEDERE, M.D. and CARDIOLOGY PARTNERS, P.L. v. DEBORAH SANFORD, as Personal Representative of the ESTATE OF GERALD L. SANFORD

Court: Fla. Dist. Ct. App. | Date Filed: 2022-03-30T00:53:00-07:00

Snippet: damages subject to the limitations in s. 766.118, prejudgment interest, and reasonable attorney

North Broward Hospital District, etc. v. Susan Kalitan

Court: Fla. | Date Filed: 2017-06-08T00:00:00-07:00

Citation: 219 So. 3d 49, 42 Fla. L. Weekly Supp. 642, 2017 WL 2481225, 2017 Fla. LEXIS 1277, 2017 Fla. App. LEXIS 8449

Snippet: damages were capped by sections 766.118(2) and (3). Section 766.118(2) provides .that in a cause of action…1983). Here, we address whether sections 766.118(2) and 766.118(3) violate the right to equal protection….3d 403 (Fla. 4th DCA 2015), which held section 766.118, Florida Statutes (2011), to be invalid. We have…medical negligence actions provided in section 766.118 violate the Equal Protection Clause of the Florida…awarded in an .amount up to *51$1 million; Section 766.118(3) similarly limits damages to $760,000 and $1.5

MDVIP, Inc. v. Beber

Court: Fla. Dist. Ct. App. | Date Filed: 2017-05-31T00:00:00-07:00

Citation: 222 So. 3d 555, 2017 WL 2364729, 2017 Fla. App. LEXIS 7824

Snippet: the non-economic damages caps created by section 766.118, Florida Statutes, which this Court has since determined

Eileen Hernandez, M.D. v. Lualhati Crespo

Court: Fla. | Date Filed: 2016-12-22T00:00:00-08:00

Citation: 211 So. 3d 19, 41 Fla. L. Weekly Supp. 625, 2016 WL 7406537, 2016 Fla. LEXIS 2718

Snippet: death noneconomic damages under "section 766.118 violates the Equal Protection Clause of the Florida

Port Charlotte HMA, LLC v. Suarez

Court: Fla. Dist. Ct. App. | Date Filed: 2016-10-26T00:00:00-07:00

Citation: 210 So. 3d 187, 2016 Fla. App. LEXIS 15869

Snippet: verdict pursuant to section *189 766.118(3), Florida Statutes (2010), claiming that Peace…motion and declined to apply the statutory cap in 766.118(3). Peace River also filed a posttrial motion…for noneconomic damages provided for in section 766.118(3), the trial court relied on North Broward…support of Suarez and K.D.P., arguing that section 766.118 is unconstitutional under Florida’s equal protection… wrongful death noneconomic damages in section 766.118 violates the equal protection clause of the Florida

Santa Lucia v. LeVine

Court: Fla. Dist. Ct. App. | Date Filed: 2016-03-09T00:00:00-08:00

Citation: 198 So. 3d 803, 2016 Fla. App. LEXIS 3529, 2016 WL 886384

Snippet: entered in his favor.- He contends that section 766.118, Florida Statutes (2012), is unconstitutional and…limit the noneconomic damages pursuant to section 766.118, and the trial court granted the motion. The court

Silvio Membreno v. City of Hialeah

Court: Fla. Dist. Ct. App. | Date Filed: 2016-03-09T00:00:00-08:00

Citation: 188 So. 3d 13, 2016 Fla. App. LEXIS 3564, 2016 WL 889178

Snippet: medical malpractice claims contained in section 766.118, Florida Statutes (2005), violated the rational

Shoemaker v. Sliger

Court: Fla. Dist. Ct. App. | Date Filed: 2016-02-12T00:00:00-08:00

Citation: 187 So. 3d 863, 2016 Fla. App. LEXIS 1975, 2016 WL 542861

Snippet: section 766.118(2), Florida Statutes (2011). The motion argued that, pursuant to section 766.118, the noneconomic…that motion in which she alleged that “[sjection 766.118’s damage caps violate several provisions of the…medical malpractice action and applying section 766.118’s cap on the noneconomic damages. After the final…In McCall, the supreme court held that “section 766.118 violates the Equal Protection Clause of the Florida…non-economic damages to Sliger pursuant, to section 766.118.” Shoe*865maker v. Sliger, 141 So.3d 1225, 1225

Go v. Normil

Court: Fla. Dist. Ct. App. | Date Filed: 2016-01-06T00:00:00-08:00

Citation: 184 So. 3d 554, 2016 Fla. App. LEXIS 186, 2016 WL 64560

Snippet: reduced, by the trial court pursuant to section 766.118, Florida Statutes (2012). Appellant now appeals…; light of recent decisions concerning section 766.118, we agree" with the position raised in the…States, 134 So.3d 894 (Fla.2014), “the section 766.118 caps are unconstitutional not only in wrongful … caps on noneconomic damages, found in section 766.118(2), are unconstitutional and should not have been

Jeanne Uy Go, M.D. v. Fedeline Normil, individually, and as Parent and Natural Guardian of Dens Pierre, a minor, Bethesda Memorial Hospital, Inc., Latha Srinath, M.D., Maria D. Alva, M.D., and Kidz Medical Services, Inc.

Court: Fla. Dist. Ct. App. | Date Filed: 2016-01-05T23:53:00-08:00

Snippet: reduced by the trial court pursuant to section 766.118, Florida Statutes (2012). Appellant now appeals…in light of recent decisions concerning section 766.118, we agree with the position raised in the cross-appeal…States, 134 So. 3d 894 (Fla. 2014), “the section 766.118 caps are unconstitutional not only in wrongful … caps on noneconomic damages, found in section 766.118(2), are unconstitutional and should not have been

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 v. Susan Kalitan

Court: Fla. Dist. Ct. App. | Date Filed: 2015-07-01T00:53:00-07:00

Snippet: , section 766.118 applies to both personal injury and wrongful death actions. See § 766.118(2)(a), Fla…awards in wrongful death cases, imposed by section 766.118, Florida Statutes (2005), violated the equal protection…limited by the trial court’s application of section 766.118, and Plaintiff’s cross-appeal challenges the constitutionality…McCall mandates a finding that the caps in section 766.118 personal injury cases are similarly unconstitutional…noneconomic damages based on the caps in section 766.118. Introduction

North Broward Hospital District v. Kalitan

Court: Fla. Dist. Ct. App. | Date Filed: 2015-07-01T00:00:00-07:00

Citation: 174 So. 3d 403, 2015 Fla. App. LEXIS 9969, 2015 WL 3973075

Snippet: , section 766.118 applies to both personal injury and wrongful death actions. See § 766.118(2)(a), Fla…awards in wrongful death cases, imposed by section 766.118, Florida Statutes (2005), violated the equal protection…limited by the trial court’s application of section 766.118, and Plaintiffs cross-appeal challenges the constitutionality…McCall mandates a finding that the caps in section 766.118 personal injury cases are similarly unconstitutional…noneconomic damages based on the caps in section 766.118. Introduction In addition to Plaintiffs cross-appeal

Kimberly Ann Miles v. Daniel Weingrad, M.D.

Court: Fla. | Date Filed: 2015-05-21T00:00:00-07:00

Citation: 164 So. 3d 1208, 40 Fla. L. Weekly Supp. 279, 2015 Fla. LEXIS 1121

Snippet: noneconomic damages to $500,000 pursuant to section 766.118(2), Florida Statutes (2003).1 The trial court denied…ruling that “retroactive application of section 766.118(2)(a) is constitutionally impermissible.” Dr. Weingrad…constitutionally permissible to retroactively apply section 766.118 in Miles’ case because she “had no vested right…the effective date of the amendment of section 766.118, because Appellees did not file their notice of…concluded that the Legislature enacted section 766.118 with a clear intent to allow “the retroactive application

Shoemaker v. Sliger

Court: Fla. Dist. Ct. App. | Date Filed: 2014-05-30T00:00:00-07:00

Citation: 141 So. 3d 1225, 2014 Fla. App. LEXIS 8251, 2014 WL 2217335

Snippet: wrongful death non-economic damages found in section 766.118, Florida Statutes (2007), is unconstitutional and…death non-economic damages provided in section 766.118 is unconstitutional because it violates the Equal…non-economic damages to Sliger pursuant to section 766.118. We remand this case to the trial court to enter…jury verdict without any reduction under section 766.118. We affirm as to all other issues raised by the

Estate of Michelle Evette McCall v. United States

Court: Fla. | Date Filed: 2014-03-13T00:00:00-07:00

Citation: 134 So. 3d 894, 39 Fla. L. Weekly Supp. 104, 2014 WL 959180, 2014 Fla. LEXIS 933

Snippet: negligence actions as articulated in section 766.118. Section 766.118(2) states: (2) Limitation on noneconomic… and nonpractitioners. See § 766.118(2), (3), Fla. Stat. Section 766.118(3), Florida Statutes, limits …STATUTORY CAP ON NONECONOMIC DAMAGES, FLA. STAT. § 766.118, VIOLATE THE RIGHT TO EQUAL PROTECTION UNDER ARTICLE…STATUTORY CAP ON NONECONOMIC DAMAGES, FLA. STAT. § 766.118, VIOLATE THE RIGHT OF ACCESS TO THE COURTS UNDER…STATUTORY CAP ON NONECONOMIC DAMAGES, FLA. STAT. § 766.118, VIOLATE THE RIGHT TO TRIAL BY JURY UNDER ARTICLE

Franks v. Bowers

Court: Fla. | Date Filed: 2013-06-20T00:00:00-07:00

Citation: 116 So. 3d 1240, 38 Fla. L. Weekly Supp. 416, 2013 WL 3064807, 2013 Fla. LEXIS 1222

Snippet: under § 766.118, Fla. Stat. (2008), apply when voluntary arbitration is refused.); § 766.118(2)(a)-(b…recover damages subject to the limitations in s.766.118, prejudgment interest, and reasonable attorney’

AMP Services Ltd. v. Walanpatrias Foundation

Court: Fla. Dist. Ct. App. | Date Filed: 2011-11-02T00:00:00-07:00

Citation: 73 So. 3d 346, 2011 Fla. App. LEXIS 17374, 2011 WL 5169987

Snippet: operate retrospectively. Thus, whether section 766.118(4), Florida Statutes, is a change or amendment

Franks v. Bowers

Court: Fla. Dist. Ct. App. | Date Filed: 2011-03-16T00:00:00-07:00

Citation: 62 So. 3d 16, 2011 Fla. App. LEXIS 3493, 2011 WL 891941

Snippet: See §§ 766.106(3)(b)(3); 766.207(2); 766.207(7); 766.118(2), Fla. Stat. The arbitration clause in the Financial…of dispute resolution. See §§ 766.207; 766.209; 766.118, Fla. Stat. The differences between the arbitration

Parham v. FLORIDA HEALTH SCIENCES CENTER, INC.

Court: Fla. Dist. Ct. App. | Date Filed: 2010-03-31T00:00:00-07:00

Citation: 35 So. 3d 920, 2010 Fla. App. LEXIS 4183, 2010 WL 1222925

Snippet: recover damages subject to the limitations in s. 766.118, prejudgment interest, and reasonable attorney&

Weingrad v. Miles

Court: Fla. Dist. Ct. App. | Date Filed: 2010-03-03T00:00:00-08:00

Citation: 29 So. 3d 406, 2010 Fla. App. LEXIS 2535, 2010 WL 711801

Snippet: whether the retroactive1 application of section 766.118, Florida Statutes (2003), which capped noneconomic…enabling clause, included as a footnote to section 766.118, states: It is the intent of the Legislature to…whether the retroactive application of section 766.118, the “caps statute,” is constitutionally permissible… right); and (4) Is the application of section 766.118 to these facts unconstitutionally retroactive? …Legislature unambiguously provided that section 766.118 was to operate retrospectively and apply “to any