Are there caps on the amount of damages recoverable in malpractice actions?


Florida Statutes §766.118, limits non-economic (pain and suffering type) damages. The limits vary depending upon the type of health care provider, the seriousness of the injury and other factors. These caps range from $150,000 to $1,500,000. Whether these caps violate the Florida Constitution is presently before the Florida Supreme Court in the case of McFall v. United States.

However, there are other situations in which the amount of non-economic damages is definitely capped.

First, if during the presuit screening procedures, a prospective defendant offers to admit liability and submit to binding arbitration then damages will be capped as to that defendant. If the patient accepts the offer and proceeds to binding arbitration, the cap on non-economic damages is $250,000.00. If the patient refuses the offer of binding arbitration, he or she is entitled to proceed to trial, but in that event, the non-economic damages are capped at $350,000.00.

The second instance in which damages are capped is a certain class of cases in which infants receive brain damage during the birth or delivery process. Under the Neurological Injury Compensation Act, which applies in these cases, intangible damages are generally limited to $100,000.00. However, it is not necessary to prove fault.

The third area in which damages are capped is in cases in which governmental bodies or their employees or agents are sued Under Florida’s Waiver of Sovereign of Immunity Act, Florida Statutes, §768.28, the most that can be recovered against a governmental entity, without the legislature passing a special claims bills, or the governmental entity agreeing to a higher settlement, is $200,000.00 per claimant and $300,000.00 per occurrence.