For more than a decade, Florida imposed strict caps on the amount of money that medical malpractice victims could recover for pain and suffering, loss of enjoyment of life, and other noneconomic losses. Those caps — which arbitrarily limited what the most catastrophically injured patients could receive — were a source of significant controversy and legal challenge from the moment they were enacted.
Today, those caps are gone.
A series of landmark Florida Supreme Court decisions struck them down as unconstitutional. Florida malpractice victims can now seek full noneconomic damages without an artificial ceiling cutting off their recovery.
Understanding how we got here — and what it means for your case — is important if you or a loved one has been harmed by medical negligence in Florida. This page explains the history of the damages cap, the court decisions that dismantled it, and what noneconomic damages you may be entitled to recover today.
What Are Noneconomic Damages in a Medical Malpractice Case?
In a Florida medical malpractice case, the damages you can recover fall into two broad categories:
Economic Damages (No Caps)
These are the quantifiable financial losses caused by the malpractice. There is no cap on economic damages in Florida. They include:
- Past and future medical expenses
- Lost wages
- Loss of future earning capacity
- Cost of long-term care
Noneconomic Damages (The Focus of the Caps)
Noneconomic damages compensate for the human losses that cannot be reduced to a receipt or a paycheck. They include:
- Physical pain and suffering (past and future)
- Mental anguish and emotional distress
- Loss of enjoyment of life
- Loss of capacity to enjoy life
- Inconvenience
- Physical impairment or disfigurement
- Loss of consortium (the impact on a spouse or family relationship)
These are often the most significant damages in a catastrophic malpractice case. A patient left permanently incontinent, paralyzed, or cognitively impaired by a preventable medical error suffers losses that go far beyond their medical bills. Noneconomic damages are the law’s attempt to acknowledge and compensate those deeply personal harms.
The 2003 Cap: Florida Statute 766.118
In 2003, the Florida Legislature passed Florida Statute 766.118, which imposed strict dollar caps on noneconomic damages in medical malpractice cases. The stated rationale was to address a perceived malpractice insurance crisis — arguing that unlimited noneconomic damages were driving up premiums and causing physicians to leave Florida.
The caps worked as follows:
- For claims against individual practitioners:
- $500,000 per claimant in most cases.
- $1,000,000 per claimant in cases of catastrophic injury or wrongful death.
- For claims against non-practitioner defendants (hospitals, facilities):
- $750,000 per claimant in most cases.
- $1,500,000 per claimant in cases of catastrophic injury or wrongful death.
These were hard limits. No matter how severe the injury, how egregious the negligence, or how devastating the impact on the patient’s life, noneconomic damages could not exceed the cap. A patient left with permanent paralysis received the same noneconomic damages ceiling as someone with a much less severe injury.
From the moment the law passed, patient advocates and malpractice attorneys argued that it was unconstitutional.
The 2014 McCall Decision: Caps Fall for Wrongful Death Cases
The first major constitutional blow came in 2014 when the Florida Supreme Court decided Estate of McCall v. United States.
The McCall case arose from the death of Michelle McCall, a young woman who died after giving birth due to negligent medical care. Her family’s noneconomic damages were capped under Florida Statute 766.118 — even though the jury had found that their actual losses far exceeded the cap.
The Florida Supreme Court ruled 5-2 that the noneconomic damages cap in medical malpractice wrongful death cases violated the equal protection guarantee of the Florida Constitution.
The Court’s Reasoning: The Court found that the cap arbitrarily and irrationally discriminated against those who suffered the most — the families of patients who died — by limiting their recovery while placing no such limit on victims of other types of negligence. The Court also noted that the cap “does not bear a rational relationship to the stated purpose of reducing malpractice premiums” because evidence showed the cap had not actually achieved those goals.
After McCall, the cap was unconstitutional for wrongful death cases. But personal injury cases — where the victim survived — remained subject to the cap. That changed three years later.
The 2017 Kalitan Decision: Caps Fall for Personal Injury Cases
In 2017, the Florida Supreme Court completed what McCall had started. In North Broward Hospital District v. Kalitan, the Court extended its constitutional analysis to personal injury malpractice cases.
Susan Kalitan suffered severe injuries during a routine outpatient procedure. The jury awarded substantial noneconomic damages that were reduced by the trial court to comply with the statutory caps.
Applying the same equal protection analysis from McCall, the Court ruled that the noneconomic damages cap in personal injury malpractice cases was also unconstitutional. The Court ruled that those who suffered the most grievous, life-altering injuries received the same artificial ceiling as those with far less severe harm, with no rational justification.
The Result: After Kalitan, Florida’s noneconomic damages cap in medical malpractice cases is unconstitutional across the board. Florida Statute 766.118 remains on the books but cannot be constitutionally enforced.
The Major Exception: Florida’s “Free Kill” Law (2026 Legislative Update)
While the McCall and Kalitan decisions struck down arbitrary dollar caps for eligible malpractice victims, there is a glaring, highly controversial exception still active in Florida law today.
Known by patient advocates as the “free kill” law, a 35-year-old provision in Florida’s Wrongful Death Act entirely blocks certain surviving family members from recovering any noneconomic damages (pain and suffering) in a medical malpractice wrongful death case.
Under this law, you cannot recover noneconomic damages for medical malpractice if:
- You are an adult child (age 25 or older) who lost a parent to medical negligence.
- You are a parent who lost an adult child (age 25 or older) who was unmarried and had no dependents.
Because noneconomic damages are usually the largest part of a wrongful death settlement, this law effectively shields negligent providers from full accountability and leaves grieving families without the court-based remedies available to other personal injury victims.
The Ongoing 2026 Legislative Battle (HB 6003 & SB 1700):
This law was the subject of a fierce, ongoing debate in the Florida Legislature during the 2026 Session, creating a clash between patient rights and the medical insurance lobby — a debate that once again ended without a repeal.
- The 2025 Veto: The legislature successfully passed a repeal of this provision last year, but Governor Ron DeSantis vetoed the bill, citing concerns that removing the restriction without imposing new damage caps would lead to skyrocketing malpractice insurance premiums.
- The 2026 House Vote and Senate Inaction: Patient advocates and lawmakers pushed back. On January 15, 2026, the Florida House passed HB 6003 (an identical repeal bill) by a sweeping 88-17 vote. Its Senate companion, SB 1700, was filed but never received a committee hearing, and it died when the 2026 Legislative Session ended in March without a floor vote.
- The Core Conflict: The Florida Hospital Association is heavily lobbying against the repeal without caps, warning of “nuclear verdicts.” However, the bill’s sponsors rightly point out that adding caps back into the law to appease insurers makes no sense, because the Florida Supreme Court has already deemed such caps unconstitutional (as established by the McCall and Kalitan decisions detailed above).
As of mid-2026, the “free kill” law remains in effect. For the second consecutive year, a repeal passed the House with overwhelming bipartisan support only to fail in the Senate, meaning the earliest lawmakers could take it up again is the 2027 Session.
Because this legal landscape is volatile and actively changing, it is more important than ever to have your case reviewed by a Florida wrongful death attorney who tracks this legislation daily. Even under current restrictions, an estate may still be able to recover certain economic damages.
What This Means for Florida Malpractice Victims Today
The practical impact of McCall and Kalitan is massive: If you or a loved one has been seriously harmed by medical negligence in Florida, there is no longer an arbitrary cap limiting what you can recover for your pain, suffering, and loss of enjoyment of life.
This matters most in cases involving catastrophic, permanent injuries — exactly the cases where the old cap did the most damage. Consider what these decisions mean for patients who have suffered:
- Permanent loss of bladder or bowel function (e.g., from Cauda Equina Syndrome)
- Paralysis or significant loss of motor function
- Permanent cognitive impairment following a surgical error or anesthesia mistake
- Disfigurement from a negligent procedure
- Loss of a spouse or child to a preventable medical error
- Permanent nerve damage from dental malpractice
Today, a jury can award what the evidence actually supports. While damages aren’t “unlimited” (juries still decide what is reasonable, and courts review excessive verdicts), the unconstitutional artificial ceiling is gone.
(Learn more about what compensation you may be entitled to recover in a Florida malpractice case).
Does This Apply to Cases Filed Before the Decisions?
The retroactive reach of McCall and Kalitan has been heavily litigated. Generally speaking:
- Finalized Cases: Cases where a judgment had been entered, appeals exhausted, and time for further review had passed are not affected by the subsequent constitutional rulings.
- Pending Cases: Cases that were pending on appeal at the time of the decisions, or where the constitutional issue had been preserved, may have been entitled to the benefit of the rulings.
If you had a malpractice case resolved before 2014 or 2017 in which your noneconomic damages were reduced by the cap, whether you have any avenue for relief depends on the specific procedural posture of your case. This requires an attorney’s analysis.
Sovereign Immunity Caps for Government-Run Facilities
The McCall and Kalitan decisions removed the noneconomic damages cap for malpractice claims generally. But if your case involves a government-run facility such as a county or state-owned hospital, a public health clinic, or another government healthcare provider, a separate, older limit still applies: Florida’s sovereign immunity caps.
Under Florida Statute 768.28, claims against government entities are capped regardless of the severity of the injury, at levels last set in 2010: $200,000 per person and $300,000 per incident. Any recovery above those limits requires the Legislature to pass a special “claims bill,” a lengthy, uncertain process separate from the courts.
The 2026 Legislative Effort:
Lawmakers made their most serious push in over a decade to raise these caps this session. House Bill 145, sponsored by Rep. Fiona McFarland, and its Senate companion, SB 1336, would have increased the caps to $350,000 per person and $500,000 per incident — the first increase since 2010.
The bill passed both chambers with broad bipartisan support and went to Governor Ron DeSantis. He vetoed it, stating that even a moderate increase to the caps would work against the goal of discouraging unmeritorious lawsuits.
What This Means for Malpractice Victims Today:
If your medical malpractice claim is against a public hospital, county-run facility, or other government healthcare provider, the outdated $200,000/$300,000 sovereign immunity caps remain in effect, unchanged. This is separate from — and in addition to — the “free kill” restriction discussed above, and it can significantly affect both your recoverable damages and, in some cases, whether an attorney is able to take your case, since capped recoveries limit contingency-fee-based compensation. Claims exceeding these caps still require pursuing a legislative claims bill.
Because a bill to raise these caps failed for the second time in recent years, lawmakers are not expected to revisit the issue again until at least the 2027 Legislative Session.
4 Steps to Take If You Have Been Harmed by Medical Negligence
1. Understand the full scope of your damages.
In a serious malpractice case, noneconomic damages can represent a substantial portion of your total recovery. Do not accept a settlement that undervalues your noneconomic losses based on an insurer’s attempt to artificially limit what you are owed.
2. Work with an attorney who understands the current damages landscape.
An attorney who understands what it takes to win a malpractice lawsuit in Florida — and how to present noneconomic damages persuasively to a jury — is essential to maximizing your recovery.
3. Get your medical records early.
Your medical records are the foundation of your damages case. The more thoroughly your injuries, treatments, and ongoing limitations are documented in the record, the stronger your noneconomic damages presentation will be. (Learn more about why getting your medical records early is critical).
4. Act within Florida’s statute of limitations.
Florida’s medical malpractice statute of limitations gives you generally two years from the date you discovered — or should have discovered — the malpractice to file a claim, subject to a four-year outer cap. Do not wait to seek legal advice.
Frequently Asked Questions About Florida Malpractice Noneconomic Damages
Get the Full Compensation You Deserve
The elimination of Florida’s unconstitutional malpractice damages cap was a landmark victory for patients. But knowing the cap is gone is only the beginning — maximizing your noneconomic damages recovery requires an attorney who knows how to build a compelling case for the full human cost of what you have suffered.
Lisa Levine has spent her career fighting for Florida malpractice victims and understands how to present the true scope of a client’s losses to achieve the best possible outcome.
If you or a loved one has been harmed by medical negligence in Fort Lauderdale, Weston, or anywhere in Florida, protect your rights.
Call Levine & Levine Attorneys, P.A. today at (954) 256-1820 for a free, confidential consultation. There is no fee unless we win your case.