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Filing # 199408894 E-Filed 05/29/2024 04:28:47 PM
2004-591
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
ASHLEY CALZADA and JUAN L.
CALZADA, individually and on behalf of
JARIEL LUIS CALZADA OYUELA, a
minor,
CASE NO.: 2017-CA-000174 MP
Plaintiff(s),
vs.
OSCEOLA REGIONAL HOSPITAL d/b/a
OSCEOLA REGIONAL MEDICAL
CENTER, ERIC FRENDAK, CRNA.,
OSCEOLA OB/GYN, MICHAEL R.
DENARDIS, D.O., OB HOSPITALIST
GROUP, LLC., EZER A. OJEDA, M.D.,
OSCEOLA ANESTHESIA ASSOCIATES,
PL., RODNEY DEL VALLE, M.D., JMJ
FAMILY PRACTICE, INC., JOSE
RAMON FERNANDEZ, M._.D., MID-
FLORIDA WOMAN'S CENTER, INC.,
BHUPENDRAKUMAR M. PATEL, M.D.,
PEDIATRIX MEDICAL GROUP, INC.,
PEDIATRIX MEDICAL GROUP OF
FLORIDA, INC., MEDNAX, INC., JOSE I.
GIERBOLINI, M.D., JUAN LONGHI,
M.D., HCA, _INC., HCA HEALTH
SERVICES OF FLORIDA, INC., AND
HCA HEALTHCARE SERVICES-
FLORIDA, INC.,
Defendant(s).
/
DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT.
REGARDING THE APPLICATION OF THE SECTION 766.118(6) CAPS ON
NONECONOMIC DAMAGES
Case No.: 2017-CA-000174 MP
COME NOW Defendants, ERIC FRENDAK, CRNA, RODNEY DEL VALLE, M.D.
and OSCEOLA ANESTHESIA ASSOCIATES, PL, by and through the undersigned attorneys,
and, pursuant to Fla. Stat. § 766.118(6) and Rule 1.510 Fla. R. Civ. P., file this Motion for Partial
Summary Judgment Regarding the Application of the Section 766.118(6) Caps on
Noneconomic Damages, and in support thereof states as follows:
This is a medical malpractice action arising from Defendants’ alleged negligent
labor and delivery treatment of Plaintiff, Ashley Calzada (nee Oyuela) (“Ms. Calzada’)
and her unborn baby Jariel Luis Calzada Oyuela (“Jariel’”’) in connection with medical care
she received at Defendant Osceola Regional Hospital d/b/a Osceola Regional Medical
Center (““ORMC”) at various times during 2012, in particular, during Ms. Calzada’s
presentations on April 30, 2012, and June 1, 2012, an admission from July 8-10, 2012, an
admission from July 12,15, 2012, during which Jariel was born, and then Jariel’s admission
from July 12, 2012 through August 6, 2012. The irrefutable evidence in this case is that at
the time of care in question Ms. Calzada was a Medicaid Recipient. In this regard,
Defendants refer to and rely upon the following evidence:
Re: Ms. Calzada
April 30, 2012 Presentation
a. Ms. Calzada’s “‘facesheet” from her April 30, 2012, presentation (a/k/a
Account # XXXXXXX9626) for obstetrical care wherein it is referenced that ORMC
verified that she was insured by “Medicaid Florida Secondary” under “Policy #:
7479155994” See Exhibit A.
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b. The ORMC itemized billing statement associated with her April 30, 2012,
presentation for obstetrical care, which identifies Ms. Calzada’s “Patient No.” as
“XXXXX9626"! and her Med[ical] Recf[ord] No.” as “XXX205,” and that further
references a total charge amount of $2,720.25 for that presentation. See Exhibit B.
Cc. The UB-04 (a/k/a CMS form 1450) associated with Ms. Calzada’s April 30,
2012, presentation that references that she was insured by “Medicaid Florida Secondary”
under “Health Plan ID” 99990006” and “Insurance Group No” 9999, that her “Policy #”
or Insured Unique ID” is 7479165994, that the “Group Name” is “Medicaid” and the total
charges of $2,720.25. See Exhibit C.
d Screen shot of ORMC’s electronic “Transaction History” re Ms. Calzada’s
April 30, 2012, presentation reflecting “Pt. #;” XXXXX9626” and her Med{[ical] Rec[ord]
No.” as “XXX205,” her “Medicaid Florida Secondary” as “Payer No. 03802” and “Ttl
Chg” a/k/a “Total Charges” of $2,720.25. See Exhibit D.
e. “Financial Transaction Listing” re Ms. Calzada’s April 30, 2012,
presentation reflecting her “Patient No.” a/k/a “Acct. Number” XXXXX9626” and a “-
100.00” payment, contractual adjustment (a/k/a “CA”) or discount from “Payer” 03802,
with a “Comment” that reads “Post 2ndary CA.” See Exhibit E.
June 1, 2012 Presentation
! Personal identifying information such as Ms. Calzada’s home address and phone numbers, as well as the
Social Security Numbers of her “Guarantors” and “Next of Kin” home address and phone numbers have been
completely redacted. Identifying numbers for Ms. Calzada, including her Social Security Number, date of birth,
“Account #s” a/k/a “Patient #’s,” Unit #s” a/k/a “Medical Records #s” have been partially redacted, showing only
the past four (4) digits for ease of reference and cross-reference.
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f. Ms. Calzada’s “facesheet” from her June 1, 2012, presentation (a/k/a
Account # XXXXXXX1820) for obstetrical care wherein it is referenced that ORMC
verified that she was insured by “Medicaid Florida Secondary” under “Policy #:
7479155994” See, Exhibit F.
& The ORMC itemized billing statement associated with her June 1, 2012,
presentation for obstetrical care, which identifies Ms. Calzada’s “Patient No.” as
“XXXXX1820” and her Med{[ical] Rec[ord] No.” as “XXX205,” and that further
references a total charge amount of $7,545.35 for that presentation. See Exhibit G.
h. The UB-04 (a/k/a CMS form 1450) associated with Ms. Calzada’s June 1,
2012, presentation that references that she was insured by “Medicaid Florida Secondary”
under “Health Plan ID” 99990006” and “Insurance Group No” 9999, that her “Policy #”
or Insured Unique ID” is 7479165994, that the “Group Name” is “Medicaid” and the total
charges of $7,545.35. See Exhibit H.
1 Screen shot of ORMC’s electronic “Transaction History” re Ms. Calzada’s
June 1, 2012, presentation reflecting “Pt. #;” XXXXX1820” and her Medfical] Rec[ord]
No.” as “XXX205,” her “Medicaid Florida Secondary” as “Payer No. 03802” and “Ttl
Chg” a/k/a “Total Charges” of $7,454.35. See Exhibit I.
J “Financial Transaction Listing” re Ms. Calzada’s June 1, 2012, presentation
reflecting her “Patient No.” a/k/a “Acct. Number” XXXXX1820” and a ‘“-100.00”
payment, contractual adjustment or discount from “Payer” 03802, with a “Comment” that
reads “M SP CA.” See Exhibit J.
July 8-12, 2012 Admission
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k. Ms. Calzada’s “facesheet” from her July 8-10, 2012, admission (aka Account
# XXXXXXX4241) for obstetrical care wherein it is referenced that ORMC verified that
she was insured by “Medicaid Florida Secondary” under “Policy #: 7479155994” See
Exhibit K.
1 The ORMC itemized billing statement associated with her July 8-10, 2012,
admission for obstetrical care, which identifies Ms. Calzada’s “Patient No.” as
“XXXXX4241” and her Med[ical] Rec[ord] No.” as “XXX205,” and that further
references a total charge amount of $12,723.43 for that presentation. See Exhibit L.
m, The UB-04 (a/k/a CMS form 1450) associated with Ms. Calzada’s July 8-10,
2012, admission that references that she was insured by “Medicaid Florida Secondary”
under “Health Plan ID” 99990006” and “Insurance Group No” 9999, that her “Policy #”
or Insured Unique ID” is 7479165994, that the “Group Name” is “Medicaid” and the total
charges of $12,723.43. See Exhibit M.
Nn. Screen shot of ORMC’s electronic “Transaction History” re Ms. Calzada’s
July 8-10, 2012, admission reflecting “Pt. #;” XXXXX4241” and her Medfical] Rec[ord]
No.” as “XXX205,” her “Medicaid Florida Secondary” as “Payer No. 03802” and “Ttl
Chg” a/k/a “Total Charges” of $12,723.43. See Exhibit N.
0. “Financial Transaction Listing” re Ms. Calzada’s July 8-10, 2012, admission
reflecting her “Patient No.” a/k/a “Acct. Number” XXXXX9626” and a “-100.00”
payment, contractual adjustment (a/k/a “CA”) or discount from “Payer” 03802, with a
“Comment” that reads “M SPCA.” See Exhibit O.
July 12-15, 2012 Admission
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P. Ms. Calzada’s “facesheet” from her July 8-10, 2012, admission (aka Account
# XXXXXXX5811) for obstetrical and post-partum care wherein it is referenced that
ORMC was advised that she was insured by “Medicaid Florida Secondary” under “Policy
#: 7479155994” See Exhibit P
q The ORMC itemized billing statement associated with her July 12-15, 2012,
admission for obstetrical and post-partum care, which identifies Ms. Calzada’s “Patient
No.” as “XXXXX5811” and her Med[ical] Rec[ord] No.” as “XXX205,” and that further
references a total charge amount of $27,731.65 for that presentation. See Exhibit Q.
Ir. The UB-04 (a/k/a CMS form 1450) associated with Ms. Calzada’s July 12-
15, 2012, admission that references that she was insured by “Medicaid Florida Secondary”
under “Health Plan ID” 99990006” and “Insurance Group No” 9999, that her “Policy #”
or Insured Unique ID” is 7479165994, that the “Group Name” is “Medicaid” and the total
charges of $27,721.65. See Exhibit R.
S. Screen shot of ORMC’s electronic “Transaction History” re Ms. Calzada’s
July 12-15, 2012, admission reflecting “Pt. #;” XXXXX5811” and her Medfical] Rec[ord]
No.” as “XXX205,” her “Medicaid Florida Secondary” as “Payer No. 03802” and “Ttl
Chg” a/k/a “Total Charges” of 27,721.65. See Exhibit S.
t “Financial Transaction Listing” re Ms. Calzada’s July 12-15, 2012,
admission reflecting her “Patient No.” a/k/a “Acct. Number” XXXXX35811” and a “-
250.000” payment, contractual adjustment (a/k/a ““CA”’) or discount from “Payer” 03802,
with a “Comment” that reads “MSPCA.” See Exhibit T.
Jariel Calzada (a/k/a “Oyuela, BB-Ashley”’)
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July 12, 2012 to August 6, 2012
U. The “facesheet” from Jariel Calzada’s July 12, 2012, to August 6, 2012,
admission (aka Account # XXXXXXX5893) for neonatal care wherein it is referenced that
ORMC was advised that she was insured by “Medicaid Florida Secondary” under “Policy
#: 097789959” with the “Insured” identified as Ms. Calzada whose “Rel[ationship] to Pt”
listed as “Mother.” See Exhibit U
Vv. The ORMC itemized billing statement associated with his July 12, 2012to
August 6, 2012, admission for neonatal care, which identifies Jariel Calzada’s “Patient
No.” as “XXXXX5893” and his Med[ical] Rec[ord] No.” as “XXXXXX1857,” and that
further references a total charge amount of $86,713.29 for that admission. See Exhibit V.
W. The UB-04 (a/k/a CMS form 1450) associated with Jariel Calzada’s July 12,
2012, to August 6, 2012, admission that was created on August 13, 2012, references that
he was or would be insured by “Medicaid FL Pend Auth” under “Insurance Group No”
99999, that his “Policy #” or Insured Unique ID” is 9519185046” and the total charges of
$86,713.29. See Exhibit W.
X, The UB-04 (a/k/a CMS form 1450) associated with Jariel Calzada’s July 12,
2012, to August 6, 2012, admission that was created on August 21, 2012, references that
he was insured by “Medicaid FL Retro PV” under “Insurance Group No” 99999, with a
“Group Name” of Medicaid” and that his “Policy #” or Insured Unique ID” is 9519185046”
and the total charges of $86,472.54.? See Exhibit X.
? The difference in the total charges between Exhibits W and X is $240.75 and which on Exhibit Z, infra, was
characterized as a “Non-Billable Adj.”
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y. Screen shot of ORMC’s electronic “Transaction History” re Jariel Calzada’s
July 12, 2012, to August 6, 2012, admission reflecting “Pt. #;” XXXXX5893” and his
Med{ical] Rec[ord] No.” as “XXXXXX1857,” his insurer was “Medicaid FL Retro PV” as
“Payer No. 038837” and “Ttl Chg” a/k/a “Total Charges” of $86,713.29. See Exhibit Y
Z. “Financial Transaction Listing” re Jariel Calzada’s July 12, 2012, to August
6, 2012, presentation reflecting his “Patient No.” a/k/a “Acct. Number” XXXXX5893” a
$25,098.24, payment from “Payer” 03837, with a Comment that reads “ERAMDP
08/29/12.” Then there’s a $240.75 “Non-Billable Adj[ustment]”* followed by additional
“Contractual Adj[ustments]” of $61,383.30 associated with “Payer” 03802, with a
“Comment” that reads “MSPCA.” See Exhibit Z.
Pertinent to this Motion and to the applicability of the cap on noneconomic
damages, a “Medicaid recipient” has the same meaning as provided in § 409.901. Fla. Stat.
§ 766.118(6)(a). Under § 409.91(19), “Medicaid recipient”
“means an individual whom the Department of Children and Families, or, for
Supplemental Security Income, by the Social Security Administration,
determines is eligible, pursuant to federal and state law, to receive medical
assistance and related services for which the agency may make payments
under the Medicaid program. For the purposes of determining third-party
liability, the term includes an individual formerly determined to be eligible
for Medicaid, an individual who has received medical assistance under the
Medicaid program, or an individual on whose behalf Medicaid has become
obligated.”
(emphasis added). “Medical assistance” means “any provision of, payment for, or liability
for medical services by Medicaid to, or on behalf of, any recipient.” Fla. Stat. § 409.91(21).
3 See footnote 2 supra.
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The Florida Department of Children and Families (“DCF”) is the
administrative agency responsible for making eligibility determinations and rules related
thereto. Fla. Stat. § 409.902, 409.19. Consistent with that authority, 65A-1.702(1)(c), Fla.
Admin. Code was enacted, which makes a newborn presumptively eligible for Medicaid
from the date of birth and continues for one year, unless one of several events not relevant
to this case occurs (or the child is formally enrolled).
As confirmed by Exhibits A through T referenced above, Ms. Calzada was a
“Medicaid recipient” at all times material. As such, and as evidenced by Exhibits U
through Z above, at the time of birth Jariel Calzada became a “Medicaid recipient” under
Florida Law.
Applying §§ 766.118, 409.91, and 65A-1.702(1)(c) to the facts of this case, both
Ms. Calzada and Jariel were Medicaid recipients to whom the noneconomic damages cap
applies. Because Ms. Calzada’s maternity care was covered by Medicaid, Jariel was
presumptively eligible to receive care from the time he was born and became a “recipient”
by virtue of his eligibility and receipt of care that Medicaid was obligated to pay.
As such, Plaintiffs’ recovery in this case is subject to the limitations on damages
set forth in section 766.118(6), Florida Statutes, which cap a Medicaid recipient’s recovery
of noneconomic damages to $300,000 per claimant and provide that no practitioner will be
responsible for more than $200,000 in noneconomic damages per incident.
For the reasons set forth below, section 766.118(6) is constitutional and applies
under the facts of this case. In anticipation of the argument likely to be raised by Plaintiff,
Florida Supreme Court’s decisions in Estate of McCall v. United States, 134 So. 3d 894
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(Fla. 2014) and North Broward Hospital District v. Kalitan, 219 So. 3d 49 (Fla. 2017) do
not hold otherwise. McCall and Kalitan addressed different subsections of the
noneconomic damages cap statute that were enacted eight years prior to subsection (6) and
were premised on entirely different legislative findings. Thus, the holdings in McCall and
Kalitan that section 766.118 fails the rational basis test have no bearing on the
constitutionality of the Medicaid recipient caps.
SUMMARY JUDGMENT STANDARD
A summary judgment on any claim or part of such claim is proper “if the movant
shows that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Rule 1.510(a), Fla. R. Civ. P. Where, like here, the non-
movant bears the ultimate burden of persuasion on a particular issue, the requirements
imposed on the moving party are “not onerous” and can be “regularly discharged with
ease.” In re: Amendments to Fla. Rule of Civ. Pro. 1.510, 317 So. 3d 72, 77 (Fla. 2021),
(citing Modrowski v. Pigatto), 712 F.3d 1166, 1168 (7th Cir. 2013) and Bedford v. Doe,
880 F.3d 993, 996 (8th Cir. 2018).
ARGUMENT
The section 766. 118(6), Florida Statutes, cap on noneconomic damages of Medicaid
recipients is a constitutional limitation on damages and does not violate equal protection
under the law.
Section 766.118(6) provides in pertinent part:
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
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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.
§ 766.118(6), Fla. Stat.
In short, subsection (6) includes a “per claimant cap” that limits an individual
claimant’s noneconomic damage recovery to $300,000 and a “per incident/aggregate cap”
that provides that no practitioner will be liable for more than $200,000 in noneconomic
damages. The caps can be pierced if the claimant pleads and proves by clear and convincing
evidence that the practitioner acted in bad faith or with malicious purpose or in a manner
exhibiting wanton and willful disregard of human rights, safety or property. §
766.118(6)(c), Fla. Stat.
Florida law is well settled that “statutes come clothed with a presumption of
constitutionality and must be construed whenever possible to effect a constitutional
outcome.” Lewis v. Leon County, 73 So. 3d 151, 153 (Fla. 2011). “[S]hould any doubt exist
that an act is in violation ... of any constitutional provision, the presumption is in favor of
constitutionality. To overcome the presumption, the invalidity must appear beyond
reasonable doubt, for it must be assumed the legislature intended to enact a valid law.”
Franklin v. State, 887 So.2d 1063, 1073 (Fla.2004) (quoting State ex rel. Flink v. Canova,
94 So.2d 181, 184 (Fla.1957)).
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Plaintiff cannot meet this high burden of proving that subsection (6) is
unconstitutional.
A Section 766.118(6), Florida Statutes Passes the Rational Basis Test
Section 766.118(6), Florida Statutes readily passes the rational basis test. Where, as
here, there is no fundamental right or protected class involved, “equal protection requires
only that a distinction which results in unequal treatment bear some rational relationship to
a legitimate state purpose.” See Hechtman v. Nations Title Ins. of N.Y., 840 So. 2d 993, 996
(Fla. 2003) (rejecting equal protection challenge). “To properly apply the rational basis
test, [the Court] must determine (1) whether the statute serves a legitimate governmental
purpose, and (2) whether it was reasonable for the Legislature to believe that the challenged
classification would promote that purpose.” /d. “‘[I]t would be proper to sustain an equal
protection challenge to a statute only if ‘the Legislature could not have had any reasonable
ground for believing that there were public considerations justifying the particular
classification and distinction made.’” Jd.
Further, “[iJt is not [the Court’s] task ‘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.’” Samples v. Florida Birth-Related
Neurological Injury Comp. Ass'n, 114 So. 3d 912, 916-19 (Fla.
2013) (rejecting equal protection challenge to NICA's $100,000 parental award per claim
provision) (quoting Loxahatchee River Envtl. Control Dist. v. Sch. Bd. of Palm Beach
Cnty., 496 So.2d 930, 938 (Fla. 4th DCA 1986)). “The burden is upon the party challenging
the statute ... to show that there is no conceivable factual predicate which would rationally
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support the classification under attack. Where the challenging party fails to meet this
difficult burden, the statute ... must be sustained.” The Fla. High Sch. Activities Ass'n, Inc.
v. Thomas, 434 So.2d 306, 308 (Fla. 1983) (rejecting equal protection challenge) (emphasis
in original).
“A State, moreover, has no obligation to produce evidence to sustain the rationality
of a statutory classification.” Heller v. Doe by Doe, 509 U.S. 312, 320 (1993). See Lucas
v. Englewood Cmty. Hosp., 963 So. 2d 894, 895-96 (Fla. 1st DCA 2007) (there is “no
obligation to prove that the legislature’s assumptions about the benefits of the statutory
distinction at issue would be realized, nor does such evidence have to be present in the
record for the legislation to survive the challenge”); Tiedemann v. Dep’t of Mgmt. Servs.,
862 So. 2d 845, 846 (Fla. 4th DCA 2003) (holding that the state is not required to “produce
evidence to support the classification” in its laws under a rational basis review).
Indeed, as the United States Supreme Court has recognized, the rational basis
inquiry “employs a relatively relaxed standard reflecting the Court’s awareness that the
drawing of lines that create distinctions is peculiarly a legislative task and an unavoidable
one.” Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307, 314 (1976); Hechtman, 840 So.
2d 993, 997 (Fla. 2003) (“It is not within [the Court’s] authority to pass upon the wisdom
of the Legislature’s classification. [Courts] must only consider whether there are any
reasonable facts to support the classification attempt made by the Legislature.”); Gallagher
v. Motors Ins. Corp., 605 So. 2d 62, 69 (Fla. 1992) (holding that an equal protection
challenge must be rejected if there is a “plausible reason for the classification”).
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Here, Plaintiffs cannot show that the section 766.118(6) caps fail the rational basis
test, and certainly not by relying on McCall and Kalitan. Although Florida’s statute capping
non-economic damages in medical malpractice actions was originally enacted in 2003, the
subsection (6) Medicaid cap was added to the statute years later in June of 2011. Unlike
the remainder of the statute, section 766.118(6) was passed as part of Florida’s
comprehensive overhaul of the Medicaid program brought about by the passage of the
federal Patient Protection and Affordable Care Act (“ACA”) in 2010:
The U.S. Congress passed the Patient Protection and Affordable Care Act
(PPACA), and President Barack Obama signed the bill into law on March
23, 2010. Key policy areas of reform include: mandated individual
coverage; mandated employer offers of coverage; expansion of Medicaid;
individual cost-sharing subsidies and tax penalties for non-compliance;
employer tax penalties for non-compliance; health insurance exchanges;
expanded regulation of the private insurance market; and revision of the
Medicare and Medicaid programs. Several of these changes will affect the
Florida Medicaid program.
(Fla. H.R., HHSC, HB 7109 (2011), Final Bill Analysis 5,
June 28, 2011,
https://www.myfloridahouse. gov/Sections/Documents/loaddoc.aspx?FileName=h7109z.
HHSC.DOCX&DocumentType=Analysis&BillNumber=7
109&Session=2011 )
(footnotes omitted).
As the Final Bill Analysis for House Bill 7109 (which included the provision
ultimately codified as subsection (6)) provides, the passage of the ACA, including the
federal mandate to purchase health insurance, was expected to result in a significant
increase in participation in the Medicaid program:
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Medicaid currently focuses on covering low-income children, pregnant
women, and adults who are elderly or have a disability. The federal reform
act increases the mandatory population to all adults, regardless of whether
they are disabled or elderly, up to 133 percent of the poverty level. The
reform law would finance the expansion by raising the federal match rate for
the new groups. States would still have to pay a share for the new groups, but
it would be smaller than for existing groups. However, the additional federal
match is time-limited.
In addition, the federal reform law imposes a mandate on individuals to buy
insurance, or pay a tax penalty. Currently, many uninsured individuals are
eligible for Medicaid coverage, but are not enrolled. The existence of the
federal mandate to purchase insurance will result in many eligibles coming
forward and enrolling in Medicaid who had not previously chosen to do so.
While these eligibles are currently entitled to Medicaid coverage, their
participation will result in increased costs and would not likely have occurred
without the catalyst of the federal mandate.
Id.
The Analysis further notes:
The costs of federal reform to Florida Medicaid will be significant. Florida
is expected to have over 708,000 new enrollees from the expanded federal
reform population in 2014, at a cost of $2.8 billion (of which $150 million
will be paid by the state), bringing the total cost of Medicaid that year to
$24.9 billion. By 2019, Florida Medicaid will have over 1.7 million
additional enrollees, at an additional cost of over $7 billion (of which $1
billion will be paid by the state). In subsequent years, the state share may
increase.
(Id. at 6) (footnotes omitted).
Since subsection (6) was enacted, participation in Florida’s Medicaid program has
indeed grown considerably. There were 2.9 million Medicaid enrollees in Florida when
subsection (6) was enacted (id. at 2), and over 5.4 million by August 2023*. (Exhibit AA).
4 See Agency for Health Care Administration,
https://ahca.myflorida.com/medicaid/finance/data_analytics/enrollment_report/index.shtml (last visited May 23,
2024),
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Although the individual mandate, which required most individuals to maintain a
minimum amount of health insurance coverage or pay a monetary penalty was repealed by
Congress in 2019 (Pub.L. 115-97, Title I, § 11081(a)(2)(B)), participation in Florida’s
Medicaid program has continued to grow: as of March 2022, there were over 5.4 million
participants in Florida’s Medicaid program. See Agency for Health Care Administration,
supra, note 1.
The Final Bill Analysis makes clear that HB 7109 was intended to address the
anticipated influx of Medicaid participants caused by the passage of the ACA.
Further, the Florida House of Representatives Appropriations Committee hearings,
as well as the Florida House and Senate floor debates on HB 7109, demonstrate that the
Florida Legislature was concerned about a shortage of physicians within the state and the
potential reluctance of health care providers to render care to Medicaid patients due to the
fact that 1) medical services provided to Medicaid recipients are generally reimbursed at
rates considerably lower than by private insurance and patients who self-pay and 2) the
providers would be subject to unlimited liability for noneconomic damages.
During public testimony by Maria Tejedor, Esq., in opposition to the Medicaid cap
provision, Representatives Mike Horner and Paige Kreegel commented on the shortage of
doctors in Florida available to treat Medicaid patients:
Rep. Horner: The presenter just testified that we do not have a doctor
shortage problem in the state. Would it be accurate to say that we have the
worst ratio of doctors per senior population in the country? Would that be an
accurate statement?
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Ms. Tejedor: Well I think that may be an issue more related to reimbursement
for senior geriatric care. So what you’re having is a lot of people don’t want
to go into geriatric care because of reimbursement rates. Specifically, the
Medicare reimbursement rates are very low, so they go into other residencies
that provide them with I think better pay. But the Department of Health
numbers that we received from them in the last three years is that there has
been a thirty percent increase in physicians in the state of Florida.
Rep. Horner: My question wasn’t the rationale. Do we have the lowest ratio
of doctors per senior in the nation?
Ms. Tejedor: I am not really sure about that statistic.
Rep. Horner: Do we have the lowest number of surgeons per resident in the
nation?
Ms. Tejedor: Representative, I am not sure about that statistic.
Rep. Horner: One final. Would you know whether or not the national average
for emergency room residents in the nation is 12 per million residents and in
Florida it’s 6 per million for emergency rooms. Would that
— does that sound like an accurate figure?
Ms. Tejedor: Oh sorry. I do not know about the figure but I also do know that
there is a residency program shortage in the state of Florida whereby many
medical school students are wanting to take residencies in the state of Florida
and there just isn’t enough residency programs, | think that may be part of
the problem as well.
Rep. Horner: With those numbers characterized a shortage of physicians if
we have the lowest ratio per seniors, the lowest ratio of surgeons and we are
at half the national average for emergency room residents. Does that sound
like perhaps we have a shortage of physicians?
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Ms. Tejedor: With all respect, also, we also have a high elderly population
compared to other states so that might also be contributing to the ratio.
Rep. Kreegel: Thank you Madam. And since you brought up the issue of
neurologic injury in children, are you — and you feel that there is no shortage
of physicians, are you aware of how many hospitals in the state that will not
have a neuro surgeon available for a pediatric case?
Ms. Tejedor: Those are, the thirty percentage increase in physicians in
Florida is what the Department of Health is reporting it, and those are not my
numbers that is what the Department of Health is reporting. But I don’t think
there is a neuro surgeon shortage, there is certainly not a OB/GYN shortage
in the state of Florida.
Rep. Kreegel: Final follow up. Just to give you the figure, four out of five
hospitals in the state do not have a neuro surgeon who will show up for a
pediatric case and the reason why is medical malpractice.
(Fla. H.R. Comm. on Approp., recording of proceedings, at 2:05:35-2:09:00 (Mar. 24,
2011), https://thefloridachannel.org/videos/3241 1 -house-appropriations-committee/).
During the March 31, 2011 House Session, Representative Robert Schenck
explained that the Medicaid recipient caps amendment was intended to “bring cost stability
to the Medicaid program.” (Fla. H.R., recording of proceedings, at 2:34:35-
2:34:50 (Mar. 31, 2011), https://thefloridachannel.org/videos/3311 1-house-session/).
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And during the May 5, 2011 Senate floor debate, Senator Joe Negron explained that
damages caps were a tradeoff to Florida physicians who accept Medicaid patients for
reduced fees:
As far as the damages, I made the case earlier, that as a trade off to the
physicians and the hospitals and these practitioners that are accepting and
treating our Medicaid patients, which is our responsibility as a government,
just as we have physician outfits in many of our communities that volunteer,
we have volunteers in medicine for instance in Martin County, and they have
immunity because they are providing at no charge. Now admittedly that’s
different than Medicaid, but Medicaid they are providing at a reduced fee
and so I feel like that we have reached a delicate balance by having only a
$200,000, $300,000-dollar cap. And in the case you mentioned, if there is a
wrongful act and there’s egregious misconduct, that cap can be pierced. So I
feel like the language we have is a fair trade off and reaches that delicate
balance.
(Fla. S., recording of proceedings, at 5:37:40-5:38:40 (May 5,
2011), https://thefloridachannel.org/videos/55 1 1 -senate-session/).
These legislative materials demonstrate that the Legislature had a legitimate goal of
protecting the viability of the Medicaid program and ensuring the availability of physicians
to treat Florida’s growing Medicaid population. It was the judgment of the Legislature that
the application of a cap on noneconomic damages to Medicaid recipients would encourage
more medical providers to accept and treat Medicaid patients and that, in light of the
physician shortages and projected increase in Medicaid enrollees, this trade-off would
benefit the citizens of the State. See Pinillos v. Cedars of Lebanon Hosp. Corp., 403 So.
2d 365, 368 (Fla. 1981) (It is a “legitimate state interest [to protect] the public health by
ensuring the availability of adequate medical care for the citizens of this state.”); Mizrahi
v. N. Miami Med. Ctr., Ltd., 761 So. 2d 1040, 1043 (Fla. 2000) (provision in wrongful
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death statute barring recovery of noneconomic damages in medical malpractice cases
by surviving adult children was rationally related to state's interest in controlling healthcare
costs and accessibility, and thus did not violate equal protection guarantees of either
United States or Florida Constitutions); Mayo v. Wisconsin Injured Patients & Families
Comp. Fund, 914 N.W.2d 678, 684-97 (Wis. 2018) (statutory cap on non-economic
damages in medical malpractice actions is rationally related to legislative goal of keeping
health care affordable and does not violate equal protection).
Accordingly, because the Medicaid noneconomic damage caps clearly serve a
legitimate governmental purpose, and the Florida Legislature reasonably believed they
would promote the multiple goals of ensuring provider availability and bringing cost
stability to the Medicaid program, section 766.118(6) is constitutional and does not violate
equal protection.
B. McCall and Kalitan Did Not Pass on the Constitutionality of Section
766.228(6) and Do Not Support Plaintiff’s Position
The Florida Supreme Court in McCall and Kalitan ruled solely on the
constitutionality of the noneconomic damages caps in subsections 766.118(2) and (3) for
personal injury or wrongful death of a claimant—entirely different subsections of the
statute that were enacted in 2003, eight years before subsection (6) became law.
Subsections 766.118(2) and (3) were passed in response to what the Legislature deemed a
medical malpractice insurance crisis caused by the high cost of medical malpractice claims.
Neither McCall nor Kalitan passed on the constitutionality of subsection (6), which has
entirely different legislative underpinnings.
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In McCall, the Florida Supreme Court addressed the statutory caps on wrongful
death noneconomic damages found in section 766.118(2). In a plurality opinion, the
Supreme Court held that section 766.118(2) violates the equal protection clause of the
Florida Constitution because it “imposes unfair and illogical burdens on injured parties
when an act of medical negligence gives rise to multiple claimants.” McCall, 134 So. 3d at
901. Further, the Court concluded that “the statutory cap on wrongful death noneconomic
damages 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.” Jd.
After undertaking an independent analysis of the Legislature’s findings regarding a
medical malpractice insurance crisis, the plurality opinion held that the “conclusions
reached by the Florida Legislature as to the existence of [the] crisis are not fully supported
by the available data.” /d. at 906. The Court then explained that “[e]ven if these conclusions
by the Legislature are assumed to be true, and Florida was facing a dangerous risk of
physician shortage due to malpractice premiums” the statute still violates Florida’s Equal
Protection Clause because the available record evidence fails to establish a direct
correlation between damages caps and reduced malpractice premiums. Jd. 909-910.
Finally, the plurality concluded that even 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.” Jd. at 914.
In Kalitan, the Supreme Court addressed section 766.118(2) and additionally
section 766.118(3), which applied noneconomic damage caps to the negligence of non-
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practitioner defendants, in a personal injury case involving a claimant whom the jury found
to have suffered a catastrophic injury. The Supreme Court analyzed the constitutionality of
subsections (2) and (3) under the same rationale as McCall, holding that the noneconomic
damages caps “arbitrarily reduce damage awards for plaintiffs who suffer the most drastic
injuries” and that there is no rational relationship between the personal injury noneconomic
damage caps in section 766.118 and alleviating this purported [medical malpractice]
crisis.” Id. at 59.
Plaintiff will likely contend McCall and Kalitan hold that all statutory caps on
noneconomic damages in medical malpractice actions violate equal protection under
Florida’s Constitution. But neither McCall nor Kalitan ever expressly addressed the
constitutionally of subsection (6), nor could they. See S. Florida Tr. Co. v. Miami Coliseum
Corp., 133 So. 334, 336 (Fla. 1931) (“It has been repeatedly held in this state that portions
of an act may be declared unconstitutional and the rest held valid, and that courts will not
pass upon the constitutionality of a portion of an act not before it.”); Palm Beach Mobile
Homes, Inc. v. Strong, 300 So. 2d 881, 883 (Fla. 1974) (“[I]t is a fundamental principle
that courts will not pass upon the validity of a statute or even a part of an act in a proceeding
which does not involve the act or wherein the case may be disposed of upon any other
ground.”).
Moreover, the holdings in McCall and Kalitan that subsections 766.118(2) and (3)
do not pass the rational basis test do not support a similar finding as to subsection (6). As
explained above, subsection (6) was passed because of the anticipated pressures on
Florida’s Medicaid system brought about by federal healthcare reform—a consideration
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entirely different from the medical malpractice insurance crisis that precipitated the
passage of subsections 766.118(2) and (3) eight years prior. Subsection (6) has an entirely
different legislative history which shows that the Legislature had a legitimate goal of
ensuring the viability of the Medicaid program, including addressing a shortage of
physicians to treat Florida’s growing Medicaid population.
Accordingly, this Court should find that section 766.118(6) is constitutional and,
because there is no genuine of issue of material fact that Plaintiff was a Medicaid recipient
at the time of the alleged incident and that the section 766.118(6) caps apply to any
noneconomic damages recovered by Plaintiff.
C. The Ninth Circuit Has Directly Addressed this Issue
In Russell v. Adventist Health System/Sunbelt, et al., Orange County Circuit Case
No. 2017-CA-004662-0 the damages caps at issue here were found to be constitutional.
As Judge Strowbridge recognized in her Order, once the movant has produced affirmative
evidence that meets its burden of proof demonstrating an absence of genuine issue of
material fact, the nonmovant must present some specific facts showing there is a genuine
issue for trial. (February 1, 2024 Order Denying Plaintiffs Motion for Summary Judgment
and Granting in Part/Denying in Part Defendants’ Motions for Summary Judgment, pg. 3,
attached as Exhibit BB). There is no affirmative evidence to suggest that Ms. Calzada
and/or Jariel were not Medicaid recipients. To create a genuine issue of material fact,
Plaintiff must “do more than simply show that there is some metaphysical doubt as to the
material facts.” (Exhibit BB, pg. 5 (citing Matsushita Elec. Indus. Co., Ltd, 475 U.S. at
586).
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Further, the application of the rational basis test by Justice Lewis in McCall was not
joined by Justices Pariente, Quince, or Perry, who concurred in the result only. (Exhibit
BB, pg. 7-8). Thus, a majority of the Supreme Court disagreed that courts have any basis
to substitute their own opinion for the Legislature’s determination that a piece of legislation
is rationally related to a legitimate government interest. (Exhibit BB, pg. 7-11).
Cc The Eighteenth Circuit Has Directly Addressed this Issue
The Eighteenth Judicial Circuit has recently addressed the constitutionality of the
noneconomic damages cap codified in section 766.118(6), Fla. Stat. Grant v. Rockledge
HMA, et al., 2015-CA-048229, 2022 WL 19005564. (Exhibit CC). In an Order issued by
Judge Dugan, the Court in Grant held that “[a]lthough the Florida Supreme Court ruled
Florida Statute Section 766.118(2) is unconstitutional under McCall v. United States, 134
So.3d 894 (2014) and Florida Statute Section 766.118(3) is unconstitutional under N.
Broward Hosp. Dist. v. Kalitan, 219 So.3d 49 (2017), the Court finds that Florida Statutes
§766.118(6) is not unconstitutional.” /d. *1. The Court found “the class limited [by the]
noneconomic damages under Subsection (6) of Florida Statute Section 766.118, i.e.,
Medicaid recipients, is more tightly limited than the classes under Subsections (2) and (3).”
Id. The Court also finds that the legislative intent or rationale supporting the noneconomic
damages caps in Subsection (6) was more sound than the general rationale applied to
Subsections (2) and (3). /d. Consequently, the Court in Grant concluded that since
“Subsection (6) has not been explicitly found unconstitutional by any appellate authority,
the Court must defer to the legislature and follow the law as the legislature intended.” Jd.
In addition to Judge Dugan, Judge Naberhaus has also come to exact same conclusion about
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the constitutionality of 766.118(6), Florida Statutes. Taylor v. Ford, 2019-CA-31968; (See
Composite Exhibit DD).
The analysis provided by Judge Dugan is equally applicable the present case. This
Court, for the same well-articulated reasons provided by Judge Dugan, should concluded
766.118(6), Florida Statute
Preview
Filing # 199408894 E-Filed 05/29/2024 04:28:47 PM 2004-591 IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA ASHLEY CALZADA and JUAN L. CALZADA, individually and on behalf of JARIEL LUIS CALZADA OYUELA, a minor, CASE NO.: 2017-CA-000174 MP Plaintiff(s), vs. OSCEOLA REGIONAL HOSPITAL d/b/a OSCEOLA REGIONAL MEDICAL CENTER, ERIC FRENDAK, CRNA., OSCEOLA OB/GYN, MICHAEL R. DENARDIS, D.O., OB HOSPITALIST GROUP, LLC., EZER A. OJEDA, M.D., OSCEOLA ANESTHESIA ASSOCIATES, PL., RODNEY DEL VALLE, M.D., JMJ FAMILY PRACTICE, INC., JOSE RAMON FERNANDEZ, M._.D., MID- FLORIDA WOMAN'S CENTER, INC., BHUPENDRAKUMAR M. PATEL, M.D., PEDIATRIX MEDICAL GROUP, INC., PEDIATRIX MEDICAL GROUP OF FLORIDA, INC., MEDNAX, INC., JOSE I. GIERBOLINI, M.D., JUAN LONGHI, M.D., HCA, _INC., HCA HEALTH SERVICES OF FLORIDA, INC., AND HCA HEALTHCARE SERVICES- FLORIDA, INC., Defendant(s). / DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT. REGARDING THE APPLICATION OF THE SECTION 766.118(6) CAPS ON NONECONOMIC DAMAGES Case No.: 2017-CA-000174 MP COME NOW Defendants, ERIC FRENDAK, CRNA, RODNEY DEL VALLE, M.D. and OSCEOLA ANESTHESIA ASSOCIATES, PL, by and through the undersigned attorneys, and, pursuant to Fla. Stat. § 766.118(6) and Rule 1.510 Fla. R. Civ. P., file this Motion for Partial Summary Judgment Regarding the Application of the Section 766.118(6) Caps on Noneconomic Damages, and in support thereof states as follows: This is a medical malpractice action arising from Defendants’ alleged negligent labor and delivery treatment of Plaintiff, Ashley Calzada (nee Oyuela) (“Ms. Calzada’) and her unborn baby Jariel Luis Calzada Oyuela (“Jariel’”’) in connection with medical care she received at Defendant Osceola Regional Hospital d/b/a Osceola Regional Medical Center (““ORMC”) at various times during 2012, in particular, during Ms. Calzada’s presentations on April 30, 2012, and June 1, 2012, an admission from July 8-10, 2012, an admission from July 12,15, 2012, during which Jariel was born, and then Jariel’s admission from July 12, 2012 through August 6, 2012. The irrefutable evidence in this case is that at the time of care in question Ms. Calzada was a Medicaid Recipient. In this regard, Defendants refer to and rely upon the following evidence: Re: Ms. Calzada April 30, 2012 Presentation a. Ms. Calzada’s “‘facesheet” from her April 30, 2012, presentation (a/k/a Account # XXXXXXX9626) for obstetrical care wherein it is referenced that ORMC verified that she was insured by “Medicaid Florida Secondary” under “Policy #: 7479155994” See Exhibit A. 4892-7844-7809, v. 1 Case No.: 2017-CA-000174 MP b. The ORMC itemized billing statement associated with her April 30, 2012, presentation for obstetrical care, which identifies Ms. Calzada’s “Patient No.” as “XXXXX9626"! and her Med[ical] Recf[ord] No.” as “XXX205,” and that further references a total charge amount of $2,720.25 for that presentation. See Exhibit B. Cc. The UB-04 (a/k/a CMS form 1450) associated with Ms. Calzada’s April 30, 2012, presentation that references that she was insured by “Medicaid Florida Secondary” under “Health Plan ID” 99990006” and “Insurance Group No” 9999, that her “Policy #” or Insured Unique ID” is 7479165994, that the “Group Name” is “Medicaid” and the total charges of $2,720.25. See Exhibit C. d Screen shot of ORMC’s electronic “Transaction History” re Ms. Calzada’s April 30, 2012, presentation reflecting “Pt. #;” XXXXX9626” and her Med{[ical] Rec[ord] No.” as “XXX205,” her “Medicaid Florida Secondary” as “Payer No. 03802” and “Ttl Chg” a/k/a “Total Charges” of $2,720.25. See Exhibit D. e. “Financial Transaction Listing” re Ms. Calzada’s April 30, 2012, presentation reflecting her “Patient No.” a/k/a “Acct. Number” XXXXX9626” and a “- 100.00” payment, contractual adjustment (a/k/a “CA”) or discount from “Payer” 03802, with a “Comment” that reads “Post 2ndary CA.” See Exhibit E. June 1, 2012 Presentation ! Personal identifying information such as Ms. Calzada’s home address and phone numbers, as well as the Social Security Numbers of her “Guarantors” and “Next of Kin” home address and phone numbers have been completely redacted. Identifying numbers for Ms. Calzada, including her Social Security Number, date of birth, “Account #s” a/k/a “Patient #’s,” Unit #s” a/k/a “Medical Records #s” have been partially redacted, showing only the past four (4) digits for ease of reference and cross-reference. 3 4892-7844-7809, v. 1 Case No.: 2017-CA-000174 MP f. Ms. Calzada’s “facesheet” from her June 1, 2012, presentation (a/k/a Account # XXXXXXX1820) for obstetrical care wherein it is referenced that ORMC verified that she was insured by “Medicaid Florida Secondary” under “Policy #: 7479155994” See, Exhibit F. & The ORMC itemized billing statement associated with her June 1, 2012, presentation for obstetrical care, which identifies Ms. Calzada’s “Patient No.” as “XXXXX1820” and her Med{[ical] Rec[ord] No.” as “XXX205,” and that further references a total charge amount of $7,545.35 for that presentation. See Exhibit G. h. The UB-04 (a/k/a CMS form 1450) associated with Ms. Calzada’s June 1, 2012, presentation that references that she was insured by “Medicaid Florida Secondary” under “Health Plan ID” 99990006” and “Insurance Group No” 9999, that her “Policy #” or Insured Unique ID” is 7479165994, that the “Group Name” is “Medicaid” and the total charges of $7,545.35. See Exhibit H. 1 Screen shot of ORMC’s electronic “Transaction History” re Ms. Calzada’s June 1, 2012, presentation reflecting “Pt. #;” XXXXX1820” and her Medfical] Rec[ord] No.” as “XXX205,” her “Medicaid Florida Secondary” as “Payer No. 03802” and “Ttl Chg” a/k/a “Total Charges” of $7,454.35. See Exhibit I. J “Financial Transaction Listing” re Ms. Calzada’s June 1, 2012, presentation reflecting her “Patient No.” a/k/a “Acct. Number” XXXXX1820” and a ‘“-100.00” payment, contractual adjustment or discount from “Payer” 03802, with a “Comment” that reads “M SP CA.” See Exhibit J. July 8-12, 2012 Admission 4892-7844-7809, v. 1 Case No.: 2017-CA-000174 MP k. Ms. Calzada’s “facesheet” from her July 8-10, 2012, admission (aka Account # XXXXXXX4241) for obstetrical care wherein it is referenced that ORMC verified that she was insured by “Medicaid Florida Secondary” under “Policy #: 7479155994” See Exhibit K. 1 The ORMC itemized billing statement associated with her July 8-10, 2012, admission for obstetrical care, which identifies Ms. Calzada’s “Patient No.” as “XXXXX4241” and her Med[ical] Rec[ord] No.” as “XXX205,” and that further references a total charge amount of $12,723.43 for that presentation. See Exhibit L. m, The UB-04 (a/k/a CMS form 1450) associated with Ms. Calzada’s July 8-10, 2012, admission that references that she was insured by “Medicaid Florida Secondary” under “Health Plan ID” 99990006” and “Insurance Group No” 9999, that her “Policy #” or Insured Unique ID” is 7479165994, that the “Group Name” is “Medicaid” and the total charges of $12,723.43. See Exhibit M. Nn. Screen shot of ORMC’s electronic “Transaction History” re Ms. Calzada’s July 8-10, 2012, admission reflecting “Pt. #;” XXXXX4241” and her Medfical] Rec[ord] No.” as “XXX205,” her “Medicaid Florida Secondary” as “Payer No. 03802” and “Ttl Chg” a/k/a “Total Charges” of $12,723.43. See Exhibit N. 0. “Financial Transaction Listing” re Ms. Calzada’s July 8-10, 2012, admission reflecting her “Patient No.” a/k/a “Acct. Number” XXXXX9626” and a “-100.00” payment, contractual adjustment (a/k/a “CA”) or discount from “Payer” 03802, with a “Comment” that reads “M SPCA.” See Exhibit O. July 12-15, 2012 Admission 4892-7844-7809, v. 1 Case No.: 2017-CA-000174 MP P. Ms. Calzada’s “facesheet” from her July 8-10, 2012, admission (aka Account # XXXXXXX5811) for obstetrical and post-partum care wherein it is referenced that ORMC was advised that she was insured by “Medicaid Florida Secondary” under “Policy #: 7479155994” See Exhibit P q The ORMC itemized billing statement associated with her July 12-15, 2012, admission for obstetrical and post-partum care, which identifies Ms. Calzada’s “Patient No.” as “XXXXX5811” and her Med[ical] Rec[ord] No.” as “XXX205,” and that further references a total charge amount of $27,731.65 for that presentation. See Exhibit Q. Ir. The UB-04 (a/k/a CMS form 1450) associated with Ms. Calzada’s July 12- 15, 2012, admission that references that she was insured by “Medicaid Florida Secondary” under “Health Plan ID” 99990006” and “Insurance Group No” 9999, that her “Policy #” or Insured Unique ID” is 7479165994, that the “Group Name” is “Medicaid” and the total charges of $27,721.65. See Exhibit R. S. Screen shot of ORMC’s electronic “Transaction History” re Ms. Calzada’s July 12-15, 2012, admission reflecting “Pt. #;” XXXXX5811” and her Medfical] Rec[ord] No.” as “XXX205,” her “Medicaid Florida Secondary” as “Payer No. 03802” and “Ttl Chg” a/k/a “Total Charges” of 27,721.65. See Exhibit S. t “Financial Transaction Listing” re Ms. Calzada’s July 12-15, 2012, admission reflecting her “Patient No.” a/k/a “Acct. Number” XXXXX35811” and a “- 250.000” payment, contractual adjustment (a/k/a ““CA”’) or discount from “Payer” 03802, with a “Comment” that reads “MSPCA.” See Exhibit T. Jariel Calzada (a/k/a “Oyuela, BB-Ashley”’) 6 4892-7844-7809, v. 1 Case No.: 2017-CA-000174 MP July 12, 2012 to August 6, 2012 U. The “facesheet” from Jariel Calzada’s July 12, 2012, to August 6, 2012, admission (aka Account # XXXXXXX5893) for neonatal care wherein it is referenced that ORMC was advised that she was insured by “Medicaid Florida Secondary” under “Policy #: 097789959” with the “Insured” identified as Ms. Calzada whose “Rel[ationship] to Pt” listed as “Mother.” See Exhibit U Vv. The ORMC itemized billing statement associated with his July 12, 2012to August 6, 2012, admission for neonatal care, which identifies Jariel Calzada’s “Patient No.” as “XXXXX5893” and his Med[ical] Rec[ord] No.” as “XXXXXX1857,” and that further references a total charge amount of $86,713.29 for that admission. See Exhibit V. W. The UB-04 (a/k/a CMS form 1450) associated with Jariel Calzada’s July 12, 2012, to August 6, 2012, admission that was created on August 13, 2012, references that he was or would be insured by “Medicaid FL Pend Auth” under “Insurance Group No” 99999, that his “Policy #” or Insured Unique ID” is 9519185046” and the total charges of $86,713.29. See Exhibit W. X, The UB-04 (a/k/a CMS form 1450) associated with Jariel Calzada’s July 12, 2012, to August 6, 2012, admission that was created on August 21, 2012, references that he was insured by “Medicaid FL Retro PV” under “Insurance Group No” 99999, with a “Group Name” of Medicaid” and that his “Policy #” or Insured Unique ID” is 9519185046” and the total charges of $86,472.54.? See Exhibit X. ? The difference in the total charges between Exhibits W and X is $240.75 and which on Exhibit Z, infra, was characterized as a “Non-Billable Adj.” 4892-7844-7809, v. 1 Case No.: 2017-CA-000174 MP y. Screen shot of ORMC’s electronic “Transaction History” re Jariel Calzada’s July 12, 2012, to August 6, 2012, admission reflecting “Pt. #;” XXXXX5893” and his Med{ical] Rec[ord] No.” as “XXXXXX1857,” his insurer was “Medicaid FL Retro PV” as “Payer No. 038837” and “Ttl Chg” a/k/a “Total Charges” of $86,713.29. See Exhibit Y Z. “Financial Transaction Listing” re Jariel Calzada’s July 12, 2012, to August 6, 2012, presentation reflecting his “Patient No.” a/k/a “Acct. Number” XXXXX5893” a $25,098.24, payment from “Payer” 03837, with a Comment that reads “ERAMDP 08/29/12.” Then there’s a $240.75 “Non-Billable Adj[ustment]”* followed by additional “Contractual Adj[ustments]” of $61,383.30 associated with “Payer” 03802, with a “Comment” that reads “MSPCA.” See Exhibit Z. Pertinent to this Motion and to the applicability of the cap on noneconomic damages, a “Medicaid recipient” has the same meaning as provided in § 409.901. Fla. Stat. § 766.118(6)(a). Under § 409.91(19), “Medicaid recipient” “means an individual whom the Department of Children and Families, or, for Supplemental Security Income, by the Social Security Administration, determines is eligible, pursuant to federal and state law, to receive medical assistance and related services for which the agency may make payments under the Medicaid program. For the purposes of determining third-party liability, the term includes an individual formerly determined to be eligible for Medicaid, an individual who has received medical assistance under the Medicaid program, or an individual on whose behalf Medicaid has become obligated.” (emphasis added). “Medical assistance” means “any provision of, payment for, or liability for medical services by Medicaid to, or on behalf of, any recipient.” Fla. Stat. § 409.91(21). 3 See footnote 2 supra. 4892-7844-7809, v. 1 Case No.: 2017-CA-000174 MP The Florida Department of Children and Families (“DCF”) is the administrative agency responsible for making eligibility determinations and rules related thereto. Fla. Stat. § 409.902, 409.19. Consistent with that authority, 65A-1.702(1)(c), Fla. Admin. Code was enacted, which makes a newborn presumptively eligible for Medicaid from the date of birth and continues for one year, unless one of several events not relevant to this case occurs (or the child is formally enrolled). As confirmed by Exhibits A through T referenced above, Ms. Calzada was a “Medicaid recipient” at all times material. As such, and as evidenced by Exhibits U through Z above, at the time of birth Jariel Calzada became a “Medicaid recipient” under Florida Law. Applying §§ 766.118, 409.91, and 65A-1.702(1)(c) to the facts of this case, both Ms. Calzada and Jariel were Medicaid recipients to whom the noneconomic damages cap applies. Because Ms. Calzada’s maternity care was covered by Medicaid, Jariel was presumptively eligible to receive care from the time he was born and became a “recipient” by virtue of his eligibility and receipt of care that Medicaid was obligated to pay. As such, Plaintiffs’ recovery in this case is subject to the limitations on damages set forth in section 766.118(6), Florida Statutes, which cap a Medicaid recipient’s recovery of noneconomic damages to $300,000 per claimant and provide that no practitioner will be responsible for more than $200,000 in noneconomic damages per incident. For the reasons set forth below, section 766.118(6) is constitutional and applies under the facts of this case. In anticipation of the argument likely to be raised by Plaintiff, Florida Supreme Court’s decisions in Estate of McCall v. United States, 134 So. 3d 894 9 4892-7844-7809, v. 1 Case No.: 2017-CA-000174 MP (Fla. 2014) and North Broward Hospital District v. Kalitan, 219 So. 3d 49 (Fla. 2017) do not hold otherwise. McCall and Kalitan addressed different subsections of the noneconomic damages cap statute that were enacted eight years prior to subsection (6) and were premised on entirely different legislative findings. Thus, the holdings in McCall and Kalitan that section 766.118 fails the rational basis test have no bearing on the constitutionality of the Medicaid recipient caps. SUMMARY JUDGMENT STANDARD A summary judgment on any claim or part of such claim is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Rule 1.510(a), Fla. R. Civ. P. Where, like here, the non- movant bears the ultimate burden of persuasion on a particular issue, the requirements imposed on the moving party are “not onerous” and can be “regularly discharged with ease.” In re: Amendments to Fla. Rule of Civ. Pro. 1.510, 317 So. 3d 72, 77 (Fla. 2021), (citing Modrowski v. Pigatto), 712 F.3d 1166, 1168 (7th Cir. 2013) and Bedford v. Doe, 880 F.3d 993, 996 (8th Cir. 2018). ARGUMENT The section 766. 118(6), Florida Statutes, cap on noneconomic damages of Medicaid recipients is a constitutional limitation on damages and does not violate equal protection under the law. Section 766.118(6) provides in pertinent part: 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 10 4892-7844-7809, v. 1 Case No.: 2017-CA-000174 MP 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. § 766.118(6), Fla. Stat. In short, subsection (6) includes a “per claimant cap” that limits an individual claimant’s noneconomic damage recovery to $300,000 and a “per incident/aggregate cap” that provides that no practitioner will be liable for more than $200,000 in noneconomic damages. The caps can be pierced if the claimant pleads and proves by clear and convincing evidence that the practitioner acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety or property. § 766.118(6)(c), Fla. Stat. Florida law is well settled that “statutes come clothed with a presumption of constitutionality and must be construed whenever possible to effect a constitutional outcome.” Lewis v. Leon County, 73 So. 3d 151, 153 (Fla. 2011). “[S]hould any doubt exist that an act is in violation ... of any constitutional provision, the presumption is in favor of constitutionality. To overcome the presumption, the invalidity must appear beyond reasonable doubt, for it must be assumed the legislature intended to enact a valid law.” Franklin v. State, 887 So.2d 1063, 1073 (Fla.2004) (quoting State ex rel. Flink v. Canova, 94 So.2d 181, 184 (Fla.1957)). 11 4892-7844-7809, v. 1 Case No.: 2017-CA-000174 MP Plaintiff cannot meet this high burden of proving that subsection (6) is unconstitutional. A Section 766.118(6), Florida Statutes Passes the Rational Basis Test Section 766.118(6), Florida Statutes readily passes the rational basis test. Where, as here, there is no fundamental right or protected class involved, “equal protection requires only that a distinction which results in unequal treatment bear some rational relationship to a legitimate state purpose.” See Hechtman v. Nations Title Ins. of N.Y., 840 So. 2d 993, 996 (Fla. 2003) (rejecting equal protection challenge). “To properly apply the rational basis test, [the Court] must determine (1) whether the statute serves a legitimate governmental purpose, and (2) whether it was reasonable for the Legislature to believe that the challenged classification would promote that purpose.” /d. “‘[I]t would be proper to sustain an equal protection challenge to a statute only if ‘the Legislature could not have had any reasonable ground for believing that there were public considerations justifying the particular classification and distinction made.’” Jd. Further, “[iJt is not [the Court’s] task ‘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.’” Samples v. Florida Birth-Related Neurological Injury Comp. Ass'n, 114 So. 3d 912, 916-19 (Fla. 2013) (rejecting equal protection challenge to NICA's $100,000 parental award per claim provision) (quoting Loxahatchee River Envtl. Control Dist. v. Sch. Bd. of Palm Beach Cnty., 496 So.2d 930, 938 (Fla. 4th DCA 1986)). “The burden is upon the party challenging the statute ... to show that there is no conceivable factual predicate which would rationally 12 4892-7844-7809, v. 1 Case No.: 2017-CA-000174 MP support the classification under attack. Where the challenging party fails to meet this difficult burden, the statute ... must be sustained.” The Fla. High Sch. Activities Ass'n, Inc. v. Thomas, 434 So.2d 306, 308 (Fla. 1983) (rejecting equal protection challenge) (emphasis in original). “A State, moreover, has no obligation to produce evidence to sustain the rationality of a statutory classification.” Heller v. Doe by Doe, 509 U.S. 312, 320 (1993). See Lucas v. Englewood Cmty. Hosp., 963 So. 2d 894, 895-96 (Fla. 1st DCA 2007) (there is “no obligation to prove that the legislature’s assumptions about the benefits of the statutory distinction at issue would be realized, nor does such evidence have to be present in the record for the legislation to survive the challenge”); Tiedemann v. Dep’t of Mgmt. Servs., 862 So. 2d 845, 846 (Fla. 4th DCA 2003) (holding that the state is not required to “produce evidence to support the classification” in its laws under a rational basis review). Indeed, as the United States Supreme Court has recognized, the rational basis inquiry “employs a relatively relaxed standard reflecting the Court’s awareness that the drawing of lines that create distinctions is peculiarly a legislative task and an unavoidable one.” Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307, 314 (1976); Hechtman, 840 So. 2d 993, 997 (Fla. 2003) (“It is not within [the Court’s] authority to pass upon the wisdom of the Legislature’s classification. [Courts] must only consider whether there are any reasonable facts to support the classification attempt made by the Legislature.”); Gallagher v. Motors Ins. Corp., 605 So. 2d 62, 69 (Fla. 1992) (holding that an equal protection challenge must be rejected if there is a “plausible reason for the classification”). 13 4892-7844-7809, v. 1 Case No.: 2017-CA-000174 MP Here, Plaintiffs cannot show that the section 766.118(6) caps fail the rational basis test, and certainly not by relying on McCall and Kalitan. Although Florida’s statute capping non-economic damages in medical malpractice actions was originally enacted in 2003, the subsection (6) Medicaid cap was added to the statute years later in June of 2011. Unlike the remainder of the statute, section 766.118(6) was passed as part of Florida’s comprehensive overhaul of the Medicaid program brought about by the passage of the federal Patient Protection and Affordable Care Act (“ACA”) in 2010: The U.S. Congress passed the Patient Protection and Affordable Care Act (PPACA), and President Barack Obama signed the bill into law on March 23, 2010. Key policy areas of reform include: mandated individual coverage; mandated employer offers of coverage; expansion of Medicaid; individual cost-sharing subsidies and tax penalties for non-compliance; employer tax penalties for non-compliance; health insurance exchanges; expanded regulation of the private insurance market; and revision of the Medicare and Medicaid programs. Several of these changes will affect the Florida Medicaid program. (Fla. H.R., HHSC, HB 7109 (2011), Final Bill Analysis 5, June 28, 2011, https://www.myfloridahouse. gov/Sections/Documents/loaddoc.aspx?FileName=h7109z. HHSC.DOCX&DocumentType=Analysis&BillNumber=7 109&Session=2011 ) (footnotes omitted). As the Final Bill Analysis for House Bill 7109 (which included the provision ultimately codified as subsection (6)) provides, the passage of the ACA, including the federal mandate to purchase health insurance, was expected to result in a significant increase in participation in the Medicaid program: 14 4892-7844-7809, v. 1 Case No.: 2017-CA-000174 MP Medicaid currently focuses on covering low-income children, pregnant women, and adults who are elderly or have a disability. The federal reform act increases the mandatory population to all adults, regardless of whether they are disabled or elderly, up to 133 percent of the poverty level. The reform law would finance the expansion by raising the federal match rate for the new groups. States would still have to pay a share for the new groups, but it would be smaller than for existing groups. However, the additional federal match is time-limited. In addition, the federal reform law imposes a mandate on individuals to buy insurance, or pay a tax penalty. Currently, many uninsured individuals are eligible for Medicaid coverage, but are not enrolled. The existence of the federal mandate to purchase insurance will result in many eligibles coming forward and enrolling in Medicaid who had not previously chosen to do so. While these eligibles are currently entitled to Medicaid coverage, their participation will result in increased costs and would not likely have occurred without the catalyst of the federal mandate. Id. The Analysis further notes: The costs of federal reform to Florida Medicaid will be significant. Florida is expected to have over 708,000 new enrollees from the expanded federal reform population in 2014, at a cost of $2.8 billion (of which $150 million will be paid by the state), bringing the total cost of Medicaid that year to $24.9 billion. By 2019, Florida Medicaid will have over 1.7 million additional enrollees, at an additional cost of over $7 billion (of which $1 billion will be paid by the state). In subsequent years, the state share may increase. (Id. at 6) (footnotes omitted). Since subsection (6) was enacted, participation in Florida’s Medicaid program has indeed grown considerably. There were 2.9 million Medicaid enrollees in Florida when subsection (6) was enacted (id. at 2), and over 5.4 million by August 2023*. (Exhibit AA). 4 See Agency for Health Care Administration, https://ahca.myflorida.com/medicaid/finance/data_analytics/enrollment_report/index.shtml (last visited May 23, 2024), 15 4892-7844-7809, v. 1 Case No.: 2017-CA-000174 MP Although the individual mandate, which required most individuals to maintain a minimum amount of health insurance coverage or pay a monetary penalty was repealed by Congress in 2019 (Pub.L. 115-97, Title I, § 11081(a)(2)(B)), participation in Florida’s Medicaid program has continued to grow: as of March 2022, there were over 5.4 million participants in Florida’s Medicaid program. See Agency for Health Care Administration, supra, note 1. The Final Bill Analysis makes clear that HB 7109 was intended to address the anticipated influx of Medicaid participants caused by the passage of the ACA. Further, the Florida House of Representatives Appropriations Committee hearings, as well as the Florida House and Senate floor debates on HB 7109, demonstrate that the Florida Legislature was concerned about a shortage of physicians within the state and the potential reluctance of health care providers to render care to Medicaid patients due to the fact that 1) medical services provided to Medicaid recipients are generally reimbursed at rates considerably lower than by private insurance and patients who self-pay and 2) the providers would be subject to unlimited liability for noneconomic damages. During public testimony by Maria Tejedor, Esq., in opposition to the Medicaid cap provision, Representatives Mike Horner and Paige Kreegel commented on the shortage of doctors in Florida available to treat Medicaid patients: Rep. Horner: The presenter just testified that we do not have a doctor shortage problem in the state. Would it be accurate to say that we have the worst ratio of doctors per senior population in the country? Would that be an accurate statement? 16 4892-7844-7809, v. 1 Case No.: 2017-CA-000174 MP Ms. Tejedor: Well I think that may be an issue more related to reimbursement for senior geriatric care. So what you’re having is a lot of people don’t want to go into geriatric care because of reimbursement rates. Specifically, the Medicare reimbursement rates are very low, so they go into other residencies that provide them with I think better pay. But the Department of Health numbers that we received from them in the last three years is that there has been a thirty percent increase in physicians in the state of Florida. Rep. Horner: My question wasn’t the rationale. Do we have the lowest ratio of doctors per senior in the nation? Ms. Tejedor: I am not really sure about that statistic. Rep. Horner: Do we have the lowest number of surgeons per resident in the nation? Ms. Tejedor: Representative, I am not sure about that statistic. Rep. Horner: One final. Would you know whether or not the national average for emergency room residents in the nation is 12 per million residents and in Florida it’s 6 per million for emergency rooms. Would that — does that sound like an accurate figure? Ms. Tejedor: Oh sorry. I do not know about the figure but I also do know that there is a residency program shortage in the state of Florida whereby many medical school students are wanting to take residencies in the state of Florida and there just isn’t enough residency programs, | think that may be part of the problem as well. Rep. Horner: With those numbers characterized a shortage of physicians if we have the lowest ratio per seniors, the lowest ratio of surgeons and we are at half the national average for emergency room residents. Does that sound like perhaps we have a shortage of physicians? 17 4892-7844-7809, v. 1 Case No.: 2017-CA-000174 MP Ms. Tejedor: With all respect, also, we also have a high elderly population compared to other states so that might also be contributing to the ratio. Rep. Kreegel: Thank you Madam. And since you brought up the issue of neurologic injury in children, are you — and you feel that there is no shortage of physicians, are you aware of how many hospitals in the state that will not have a neuro surgeon available for a pediatric case? Ms. Tejedor: Those are, the thirty percentage increase in physicians in Florida is what the Department of Health is reporting it, and those are not my numbers that is what the Department of Health is reporting. But I don’t think there is a neuro surgeon shortage, there is certainly not a OB/GYN shortage in the state of Florida. Rep. Kreegel: Final follow up. Just to give you the figure, four out of five hospitals in the state do not have a neuro surgeon who will show up for a pediatric case and the reason why is medical malpractice. (Fla. H.R. Comm. on Approp., recording of proceedings, at 2:05:35-2:09:00 (Mar. 24, 2011), https://thefloridachannel.org/videos/3241 1 -house-appropriations-committee/). During the March 31, 2011 House Session, Representative Robert Schenck explained that the Medicaid recipient caps amendment was intended to “bring cost stability to the Medicaid program.” (Fla. H.R., recording of proceedings, at 2:34:35- 2:34:50 (Mar. 31, 2011), https://thefloridachannel.org/videos/3311 1-house-session/). 18 4892-7844-7809, v. 1 Case No.: 2017-CA-000174 MP And during the May 5, 2011 Senate floor debate, Senator Joe Negron explained that damages caps were a tradeoff to Florida physicians who accept Medicaid patients for reduced fees: As far as the damages, I made the case earlier, that as a trade off to the physicians and the hospitals and these practitioners that are accepting and treating our Medicaid patients, which is our responsibility as a government, just as we have physician outfits in many of our communities that volunteer, we have volunteers in medicine for instance in Martin County, and they have immunity because they are providing at no charge. Now admittedly that’s different than Medicaid, but Medicaid they are providing at a reduced fee and so I feel like that we have reached a delicate balance by having only a $200,000, $300,000-dollar cap. And in the case you mentioned, if there is a wrongful act and there’s egregious misconduct, that cap can be pierced. So I feel like the language we have is a fair trade off and reaches that delicate balance. (Fla. S., recording of proceedings, at 5:37:40-5:38:40 (May 5, 2011), https://thefloridachannel.org/videos/55 1 1 -senate-session/). These legislative materials demonstrate that the Legislature had a legitimate goal of protecting the viability of the Medicaid program and ensuring the availability of physicians to treat Florida’s growing Medicaid population. It was the judgment of the Legislature that the application of a cap on noneconomic damages to Medicaid recipients would encourage more medical providers to accept and treat Medicaid patients and that, in light of the physician shortages and projected increase in Medicaid enrollees, this trade-off would benefit the citizens of the State. See Pinillos v. Cedars of Lebanon Hosp. Corp., 403 So. 2d 365, 368 (Fla. 1981) (It is a “legitimate state interest [to protect] the public health by ensuring the availability of adequate medical care for the citizens of this state.”); Mizrahi v. N. Miami Med. Ctr., Ltd., 761 So. 2d 1040, 1043 (Fla. 2000) (provision in wrongful 19 4892-7844-7809, v. 1 Case No.: 2017-CA-000174 MP death statute barring recovery of noneconomic damages in medical malpractice cases by surviving adult children was rationally related to state's interest in controlling healthcare costs and accessibility, and thus did not violate equal protection guarantees of either United States or Florida Constitutions); Mayo v. Wisconsin Injured Patients & Families Comp. Fund, 914 N.W.2d 678, 684-97 (Wis. 2018) (statutory cap on non-economic damages in medical malpractice actions is rationally related to legislative goal of keeping health care affordable and does not violate equal protection). Accordingly, because the Medicaid noneconomic damage caps clearly serve a legitimate governmental purpose, and the Florida Legislature reasonably believed they would promote the multiple goals of ensuring provider availability and bringing cost stability to the Medicaid program, section 766.118(6) is constitutional and does not violate equal protection. B. McCall and Kalitan Did Not Pass on the Constitutionality of Section 766.228(6) and Do Not Support Plaintiff’s Position The Florida Supreme Court in McCall and Kalitan ruled solely on the constitutionality of the noneconomic damages caps in subsections 766.118(2) and (3) for personal injury or wrongful death of a claimant—entirely different subsections of the statute that were enacted in 2003, eight years before subsection (6) became law. Subsections 766.118(2) and (3) were passed in response to what the Legislature deemed a medical malpractice insurance crisis caused by the high cost of medical malpractice claims. Neither McCall nor Kalitan passed on the constitutionality of subsection (6), which has entirely different legislative underpinnings. 20 4892-7844-7809, v. 1 Case No.: 2017-CA-000174 MP In McCall, the Florida Supreme Court addressed the statutory caps on wrongful death noneconomic damages found in section 766.118(2). In a plurality opinion, the Supreme Court held that section 766.118(2) violates the equal protection clause of the Florida Constitution because it “imposes unfair and illogical burdens on injured parties when an act of medical negligence gives rise to multiple claimants.” McCall, 134 So. 3d at 901. Further, the Court concluded that “the statutory cap on wrongful death noneconomic damages 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.” Jd. After undertaking an independent analysis of the Legislature’s findings regarding a medical malpractice insurance crisis, the plurality opinion held that the “conclusions reached by the Florida Legislature as to the existence of [the] crisis are not fully supported by the available data.” /d. at 906. The Court then explained that “[e]ven if these conclusions by the Legislature are assumed to be true, and Florida was facing a dangerous risk of physician shortage due to malpractice premiums” the statute still violates Florida’s Equal Protection Clause because the available record evidence fails to establish a direct correlation between damages caps and reduced malpractice premiums. Jd. 909-910. Finally, the plurality concluded that even 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.” Jd. at 914. In Kalitan, the Supreme Court addressed section 766.118(2) and additionally section 766.118(3), which applied noneconomic damage caps to the negligence of non- 21 4892-7844-7809, v. 1 Case No.: 2017-CA-000174 MP practitioner defendants, in a personal injury case involving a claimant whom the jury found to have suffered a catastrophic injury. The Supreme Court analyzed the constitutionality of subsections (2) and (3) under the same rationale as McCall, holding that the noneconomic damages caps “arbitrarily reduce damage awards for plaintiffs who suffer the most drastic injuries” and that there is no rational relationship between the personal injury noneconomic damage caps in section 766.118 and alleviating this purported [medical malpractice] crisis.” Id. at 59. Plaintiff will likely contend McCall and Kalitan hold that all statutory caps on noneconomic damages in medical malpractice actions violate equal protection under Florida’s Constitution. But neither McCall nor Kalitan ever expressly addressed the constitutionally of subsection (6), nor could they. See S. Florida Tr. Co. v. Miami Coliseum Corp., 133 So. 334, 336 (Fla. 1931) (“It has been repeatedly held in this state that portions of an act may be declared unconstitutional and the rest held valid, and that courts will not pass upon the constitutionality of a portion of an act not before it.”); Palm Beach Mobile Homes, Inc. v. Strong, 300 So. 2d 881, 883 (Fla. 1974) (“[I]t is a fundamental principle that courts will not pass upon the validity of a statute or even a part of an act in a proceeding which does not involve the act or wherein the case may be disposed of upon any other ground.”). Moreover, the holdings in McCall and Kalitan that subsections 766.118(2) and (3) do not pass the rational basis test do not support a similar finding as to subsection (6). As explained above, subsection (6) was passed because of the anticipated pressures on Florida’s Medicaid system brought about by federal healthcare reform—a consideration 22 4892-7844-7809, v. 1 Case No.: 2017-CA-000174 MP entirely different from the medical malpractice insurance crisis that precipitated the passage of subsections 766.118(2) and (3) eight years prior. Subsection (6) has an entirely different legislative history which shows that the Legislature had a legitimate goal of ensuring the viability of the Medicaid program, including addressing a shortage of physicians to treat Florida’s growing Medicaid population. Accordingly, this Court should find that section 766.118(6) is constitutional and, because there is no genuine of issue of material fact that Plaintiff was a Medicaid recipient at the time of the alleged incident and that the section 766.118(6) caps apply to any noneconomic damages recovered by Plaintiff. C. The Ninth Circuit Has Directly Addressed this Issue In Russell v. Adventist Health System/Sunbelt, et al., Orange County Circuit Case No. 2017-CA-004662-0 the damages caps at issue here were found to be constitutional. As Judge Strowbridge recognized in her Order, once the movant has produced affirmative evidence that meets its burden of proof demonstrating an absence of genuine issue of material fact, the nonmovant must present some specific facts showing there is a genuine issue for trial. (February 1, 2024 Order Denying Plaintiffs Motion for Summary Judgment and Granting in Part/Denying in Part Defendants’ Motions for Summary Judgment, pg. 3, attached as Exhibit BB). There is no affirmative evidence to suggest that Ms. Calzada and/or Jariel were not Medicaid recipients. To create a genuine issue of material fact, Plaintiff must “do more than simply show that there is some metaphysical doubt as to the material facts.” (Exhibit BB, pg. 5 (citing Matsushita Elec. Indus. Co., Ltd, 475 U.S. at 586). 23 4892-7844-7809, v. 1 Case No.: 2017-CA-000174 MP Further, the application of the rational basis test by Justice Lewis in McCall was not joined by Justices Pariente, Quince, or Perry, who concurred in the result only. (Exhibit BB, pg. 7-8). Thus, a majority of the Supreme Court disagreed that courts have any basis to substitute their own opinion for the Legislature’s determination that a piece of legislation is rationally related to a legitimate government interest. (Exhibit BB, pg. 7-11). Cc The Eighteenth Circuit Has Directly Addressed this Issue The Eighteenth Judicial Circuit has recently addressed the constitutionality of the noneconomic damages cap codified in section 766.118(6), Fla. Stat. Grant v. Rockledge HMA, et al., 2015-CA-048229, 2022 WL 19005564. (Exhibit CC). In an Order issued by Judge Dugan, the Court in Grant held that “[a]lthough the Florida Supreme Court ruled Florida Statute Section 766.118(2) is unconstitutional under McCall v. United States, 134 So.3d 894 (2014) and Florida Statute Section 766.118(3) is unconstitutional under N. Broward Hosp. Dist. v. Kalitan, 219 So.3d 49 (2017), the Court finds that Florida Statutes §766.118(6) is not unconstitutional.” /d. *1. The Court found “the class limited [by the] noneconomic damages under Subsection (6) of Florida Statute Section 766.118, i.e., Medicaid recipients, is more tightly limited than the classes under Subsections (2) and (3).” Id. The Court also finds that the legislative intent or rationale supporting the noneconomic damages caps in Subsection (6) was more sound than the general rationale applied to Subsections (2) and (3). /d. Consequently, the Court in Grant concluded that since “Subsection (6) has not been explicitly found unconstitutional by any appellate authority, the Court must defer to the legislature and follow the law as the legislature intended.” Jd. In addition to Judge Dugan, Judge Naberhaus has also come to exact same conclusion about 24 4892-7844-7809, v. 1 Case No.: 2017-CA-000174 MP the constitutionality of 766.118(6), Florida Statutes. Taylor v. Ford, 2019-CA-31968; (See Composite Exhibit DD). The analysis provided by Judge Dugan is equally applicable the present case. This Court, for the same well-articulated reasons provided by Judge Dugan, should concluded 766.118(6), Florida Statute