Malpractice and the Florida Supreme Court

Florida Supreme Court Building

The Florida Supreme Court has made two major decisions in the last year that will have a huge impact on malpractice cases. One involves the amount of compensation a plaintiff can receive. The other deals with the very definition of malpractice itself. Let’s take a closer look at these two important decisions: 

North Broward Hospital District vs. Susan Kalitan, June 8, 2017 

In 2007, Susan Kalitan had gone into surgery for carpel tunnel syndrome. As part of the general anesthesia process, the team gave her an intubation, where a tube is placed down the throat to keep a patient’s airways open. Upon awakening from anesthesia, Kalitan began to complain of severe pain in her chest and back. The hospital simply gave her some pain medicine to take home and sent her on her way. Kalitan’s neighbor, who drove her home, came to check up on Kalitan the next day and found her unresponsive. She was taken to the emergency room where she underwent emergency surgery. As it turns out, the tracheal intubation, which should have been routine, had punctured her esophagus.  

Kalitan filed a medical negligence case against the hospital, North Broward. The jury determined that Kalitan has suffered “catastrophic injury,” the most severe form of malpractice that yields the highest reward (aside from death, of course). The court ruled that she would be rewarded $4,718,011 for pain and suffering, but she was not to receive that money. According to Section 766.118 of Florida law, the highest allowable payout for that level of malpractice was two million, so Kalitan was forced to receive only half of her compensation. 

After several appeals, the case was presented to the Florida Supreme Court. The Court decided that the cap on malpractice compensation was unconstitutional. Referring to the ruling of another case, Estate of McCall v. United States, the Court found that in that case, the cap on non-economic damages was ruled arbitrary and unconstitutional. Similarly, the Florida Supreme Court ruled, the caps on personal injury were therefore also unconstitutional.  

National Deaf Academy vs. Denise Townes, April 26, 2018 

The National Deaf Academy treats more than just the hearing impaired. It also operates as a residential treatment facility, treating the deaf, autistic, and mentally ill. Cinnette Perry was a resident at the Academy, suffering from explosive, violent bi-polar disorder. 

Part of her care plan included Therapeutic Aggression Control Technique, or TACT. TACT is a process where, if a patient loses control, staff members can physically restrain them. In 2008, Cinnette Perry wandered just off campus. When approached by the Academy staff, she began to throw rocks and tear down electrical equipment. The staff removed the other residents and attempted a TACT hold on Perry. Fighting back, Perry firmly lodged her foot into the ground, causing both her and a nurse to fall. Perry’s knee was injured, but the staff believed she had simply dislocated it. Unfortunately for Perry, the injury was far more severe, and her leg had to be amputated above the knee. 

The TACT hold was designed to help restrain the mentally ill. It’s not considered a medical procedure, and it can be administered by non-medical professionals. When Denise Townes, acting on behalf of Perry, sued the National Deaf Academy, the Academy argued that Towne’s suit fell under medical malpractice and was therefore invalid. 

Townes and Perry won an appeal on the grounds of medical malpractice. Once the case reached the Florida Supreme Court, it became clear that the definitions of what is and isn’t medical malpractice needed to be more clearly defined. The Court found that TACT was “not for treatment or diagnosis of any condition, was not employed to meet Perry’s daily needs during care, and did not require medical skill or judgment as non-medical staff were taught the procedure and were authorized to decide whether to employ it.” 

In other words, the Supreme Court has clearly defined medical malpractice as something directly connected to medical care. If someone is hurt in a surgery, for example, they can claim medical malpractice. In the case of a TACT hold going wrong, a plaintiff can sue only for negligence, not malpractice. 


These decisions and definitions are in direct response to a 2003 law passed to curb frivolous malpractice lawsuits. It’s the same law that capped Susan Kalitan’s compensation in 2007. It’s a hotly debated statute. Justice Ricky Polston, in North Broward Hospital District vs. Susan Kalitan, dissented the decision of that case. He argues that the 2003 law was passed for good reason. It was put into place to keep insurance costs down and to insure quality health care for Floridians, according to Polston. 

It will be interesting to see how these decisions will play out in the coming years. On one hand, medical professionals are now reasonably concerned about what they stand to lose in a malpractice suit. On the other, it will be more difficult to sue a medical professional for direct malpractice rather than negligence. Whatever the case, the landscape of malpractice law in the state of Florida has clearly changed for the foreseeable future.  

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