Category Archives: Florida

July 2017 Newsletter

  Ailing liability system not fair to deserving patients Even as the prospects for larger efforts to reform our nation’s health care system remain uncertain, there’s hope that medical liability reform could make incremental progress on reducing costs and restoring fairness to deserving patients. An editorial this month highlights the progress made by the House of Representatives in passing the Protecting Access to Care Act in order to align a patchwork of state liability laws and ensure full compensation of medical bills and lost wages to patients who are the victims of medical negligence. Unfortunately, personal injury attorneys continue to stand in the way of full passage of medical liability reform by the Senate. According to the editorial, “fairness is elusive,” particularly to patients, who are subject to a system that adds billions of dollars in health care spending each year, lost to defensive medicine and sky-high premiums that reduce access to care. With the ball now in the court of the Senate, “lawmakers who say they’re committed to addressing ‘affordable’ health care need to stop dancing around malpractice tort reform and address what’s grown into a significant, if not inordinate, cost driver,” the editorial concludes. To read more about…

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Commentary: Florida Supreme Court crowns itself fact-finder and policymaker on malpractice

On June 8, in North Broward Hospital District v. Kalitan, the Florida Supreme Court ruled that caps on noneconomic damages (pain and suffering) in medical malpractice lawsuits violated the equal protection clause. Mostly, the court said that the caps did not pass the “rational basis test,” where a challenged law must be rationally related to a legitimate government interest. By deciding the Legislature had no rational basis for imposing the caps, the court crowned itself fact-finder and policymaker, rejecting all of the Legislature’s work and its role under our system of government. Under the rational basis test, the court is supposed to defer to the Legislature if there is any “rational basis” in the record. Here, the court found there was no conceivable rational basis for the Legislature’s action. Let’s take a look at the record. In 2002, the Governor’s Select Task Force on Healthcare Professional Liability Insurance spent months traveling around the state, listening to all interested parties, gathering relevant data, and analyzing trends. What they observed and documented was alarming: In 2002, the average liability premium per doctor in Florida was 55 percent higher than the national average. For the period from 1996 to 2002, average insurance premiums in Florida…

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June 2017 Newsletter

  Patient access to care scores a win in Washington The passage of comprehensive medical liability reform legislation this week in Washington gives patients and physicians a win on access to affordable care. H.R. 1215, the Protecting Access to Care Act of 2017, passed the House by a vote of 218 to 210, and enacts reasonable limits on non-economic damages while modeling the common-sense reforms of states like Texas and California. According to the Congressional Budget Office, the comprehensive medical liability reforms included in H.R. 1215 would lead to cost savings of $44 billion over the 2017-2026 period for federal health care programs such as Medicare and Medicaid, and reduce the national deficit by almost $50 billion over the same 10-year period. The Protect Patients Now grassroots network was activated over the past month and was instrumental in gathering support for the bill. Nearly 650 emails were sent to members of Congress, with many others taking to Facebook and Twitter to advocate for support of medical liability reform. “Our broken medical liability system is one step closer to more efficiently and equitably compensating deserving patients and reducing the medical lawsuit abuse that undermines the physician-patient relationship,” said HCLA Chair Mike…

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Florida patients face uncertainty after liability reforms deemed unconstitutional

On Thursday, in a 4-3 decision by the Florida Supreme Court, a 2003 law setting caps on medical malpractice damages in personal injury cases was declared unconstitutional. The law, which was strongly supported by then governor Jeb Bush, limited non-economic damages in malpractice cases in which a patient was injured to $500,000, or $1 million if the injuries were catastrophic. At the time the legislation was passed Florida physicians were faced with skyrocketing malpractice insurance premium rates with many exiting practice in the state. The decision comes three years after the court struck down caps in cases where malpractice resulted in death. The four-member majority ruled that the caps on “non-economic” damages violated equal-protection rights, that the caps were arbitrary and that there is no proof that they reduced malpractice insurance rates. They also said that there is no existing malpractice insurance “crisis” to justify the caps. “We conclude that the caps on noneconomic damages … arbitrarily reduce damage awards for plaintiffs who suffer the most drastic injuries,” said the majority opinion shared by Chief Justice Jorge Labarga and justices Barbara Pariente, R. Fred Lewis and Peggy Quince. The three dissenting justices, Ricky Polston, Alan Lawson and Charles Canady, issued…

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Tort reform group again slams Florida as ‘judicial hellhole’

A newly released report by the American Tort Reform Association finds that residents of the Sunshine State are living in a very warm place indeed. The 2016-2017 Judicial Hellholes rankings are out, and Florida came in at an ignoble 4th.  Florida follows St. Louis, Missouri; California; and New York City Asbestos Litigation as home to the most unfair civil courts in the nation. The report specifically singles out the Florida Supreme Court for what ATRA president Tiger Joyce called in a statement accompanying the report “liability-expanding decisions that ignore state lawmakers’ prerogatives and motivate South Florida’s plaintiffs’ bar to become even more aggressive.” One area of focus is the Florida Supreme Court’s rulings on workers’ compensation cases.   In the April decision for Castellanos v. Next Door Co., the court made it possible for plaintiffs’ lawyers to collect large fees for filing relatively small worker’s comp claims.  The Florida Supreme Court’s ruling overthrew the legislature’s previous efforts at normalizing fee structures. “No state high court in recent years has been more brazenly inclined to disregard the will of the legislative and executive branches of the government, and thus disregard the will of the voters who elect those lawmakers, than has the…

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August 2016 Newsletter

Florida lawsuit challenges timely resolution of claims A challenge has been mounted in Florida that could threaten the ability of patients and physicians to resolve medical liability lawsuits in a timely manner. Being considered by the Florida Supreme Court is a case, ruled valid by a trial court and the Florida First District Court of Appeals, that seeks to scale back the requirement that a plaintiff authorize the release of relevant health information as a condition of bringing forward a lawsuit. When passed in 2013, the amendment to the Florida Medical Liability Act was supported by defendants and claimants as a way to eliminate frivolous lawsuits and move forward more quickly towards a resolution for those with merit. It allows for a more informal process of gathering information ahead of a trial, due to the fact that a formal deposition can lead to physicians spending more time in the courtroom – and more time away from patients in the exam room. Writing an amicus brief in support of the law as it stands is the Litigation Center of the AMA and State Medical Societies. “If the right to this informal discovery is removed,” the brief said, “the result will be…

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Challenge to medical liability law could complicate pre-suit process

A medical liability case, even if successful, can cause financial, emotional and reputational harm to a physician—and also to the patient who brings the suit. A 2013 amendment to the Florida Medical Liability Act, which requires the plaintiff to release relevant health information to determine whether a claim for medical liability is meritorious, is under threat in the Florida Supreme Court. At stake in Weaver v. Myers is whether the Florida Medical Malpractice Act, which requires the plaintiff to authorize the release of otherwise confidential health information as a condition of bringing a lawsuit for medical liability, is valid. Both a trial court and the Florida First District Court of Appeals confirmed the amendment’s validity. Florida’s pre-suit investigation process was intended to allow both claimants and potential defendants the opportunity to determine whether a medical liability claim has merit and to encourage early resolution of claims between the parties. This process can avoid costly and time-consuming proceedings through a less complicated pre-suit process that allows both parties to examine the evidence. What happened Emma Weaver, widow and representative of Thomas C. Weaver, sued her late husband’s physician, Stephen C. Myers, MD, for medical liability. However, she did not want to…

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State Attorney General Bondi defends medical malpractice limits

Pointing to the Legislature’s efforts to address a “crisis,” Attorney General Pam Bondi’s office is urging the Florida Supreme Court to uphold a key part of a controversial 2003 medical-malpractice law. A friend-of-the-court brief filed by Bondi’s office signals the potential high stakes of a pending Supreme Court case that could further eliminate limits on damages in medical-malpractice cases. Then-Gov. Jeb Bush, insurers, doctors and hospitals battled to pass the limits on pain-and-suffering damages in 2003, arguing that the state was in a crisis because of high medical-malpractice insurance rates. But this summer, the 4th District Court of Appeal ruled that the limits were unconstitutional in malpractice personal-injury cases — after the Supreme Court earlier ruled against the limits in wrongful-death cases. Bondi’s office filed a 23-page brief late Monday seeking to rebut the appeals court’s ruling, which came in the case of dental assistant Susan Kalitan, who went into surgery for carpal-tunnel syndrome and ended up suffering a perforated esophagus after tubes were inserted into her mouth and esophagus as part of the anesthesia process. “Kalitan failed to rebut any of the exhaustive research, testimony, or data supporting the conclusion that a non-economic damages cap is a critical, necessary…

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High-spending doctors less likely to be sued

Providing more care than necessary may work to lower a doctor’s risk of being accused of malpractice, suggests a new U.S. study. Although the results can’t prove extra expenditures are due to so-called defensive medicine, the researchers found that doctors in Florida who provided the most costly care between 2000 and 2009 were also least likely to be sued between 2001 and 2010. “By no means would I consider it to be conclusive, but it does signal to us that defensive medicine could work in lowering malpractice risk, but more research is needed to know if that’s true or not,” said lead author Dr. Anupam Jena, of Massachusetts General Hospital and Harvard Medical School in Boston. He and his colleagues write in The BMJ that critics of the U.S. malpractice system suggest it encourages defensive medicine, which is when doctors provide more healthcare than necessary in order to stave off lawsuits. “If you ask physicians what’s the number one concern they have when you talk to them about their careers, I would say malpractice will come up as one of their top concerns,” Jena said. While it’s commonly accepted that doctors practice defensive medicine, the researchers write, no studies have…

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Florida’s culture of medical malpractice claims isn’t good for health care

Florida has the highest loss rate among states when it comes to settling medical malpractice claims, according to a new study from Aon Risk Solutions and the American Society for Healthcare Risk Management. The cost of settling and defending medical malpractice claims in Florida is 2.9 times the national average. That high cost of settling or defending malpractice claims – $8,190 on average – does not indicate a thriving health care industry. “It’s a high expense item compared to others states and it hurts the health care mission of providing a high level of care,” said Erik Johnson, director and actuary of Aon Global Risk Consulting. The trend in the health care industry is to become more efficient in providing quality care, and in doing so, save money. But a malpractice claim in a state where the cost of such an action is so steep can disincentive doctors from setting up practice. Doctors may also order extra tests to cover all bases in avoiding malpractice action and those added costs filter down to the patients. In 2014, the average amount for medical malpractice claims that resulted in a payment to the claimant was $299,800 in Florida. The nationwide average was…

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