Medical Malpractice Case Dissolves State Caps On Non-Economic Damages

A case recently decided in a South Florida appeals court could start to unravel the limitations placed on collecting pain and suffering damages in medical malpractice suits. Specifically, the court ruled that placing limits on the amount of non-economic damages an injured plaintiff can collect in a personal injury lawsuit is unconstitutional.

The Medical Malpractice Case

Susan Kalitan filed the case in 2008 when anesthesia was used to put her to sleep for outpatient carpal-tunnel surgery. Tubes were inserted into her mouth and esophagus in order to administer the anesthesia, however, she suffered chest and back pain immediately after the procedure, and was rushed back to the hospital the next day with a perforated esophagus. Kalitan then had to undergo chest and neck surgery to fix the perforation, and was in a drug-induced coma for three weeks recovering.

For her suffering, the jury awarded Kalitan $4.7 million, $4 million of which was for non-economic damages (pain and suffering). Pursuant to the state limit on the cap on non-economic damages (as passed by the state legislature in 2003), the award was significantly reduced, even though Kalitan was determined to have suffered a “catastrophic injury.”

On appeal, the court focused on the broad issue of the constitutionality of damage limits, specifically stating that caps discriminate between classes of medical malpractice victims, and are thus unconstitutional because they deny equal protection of the laws.


This opinion followed a decision made last year by the Florida Supreme Court similarly rejecting the malpractice law’s limits on non-economic damages in a wrongful death case. The Court reasoned that placing a cap on these damages violates equal protection rights. Following in the Supreme Court’s footsteps, the appeals court applied the same reasoning to Kalitan’s personal injury suit.

Case of First Impression. Could Louisiana Follow Suit?

The ruling presented an issue of first impression, and could lead to a similar challenge in a state like Louisiana. In Louisiana, regardless of what a jury determines a victim of medical malpractice should receive for pain and suffering, there is an overall cap on all of the damages that can be collected, and that cap is limited to $500,000. Any amount over $100,000 is paid through the state’s Patient Compensation Fund, which is similar to insurance for doctors and medical providers.

Although the Louisiana Supreme Court upheld the constitutionality of the cap in 2012, recent decisions in other states could lend to a new decision in Louisiana as well, particularly since both Florida and Louisiana similarly placed the cap at $500,000, and did so legislatively.

Harrell & Nowak

The Louisiana attorneys at Harrell & Nowak have been representing victims of medical malpractice in successful cases for years. Our attorneys have the experience, knowledge, and commitment necessary to pursue these claims and represent you for any suffering you have incurred as the result of medical error. Contact our New Orleans law firm today for a free, confidential consultation.