DON BROWN: Inaccuracy in damages a problem in Florida

By Don Brown Florida Source

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  • December 20, 2018

SOURCE: Northwest Florida Daily News

No doubt, Florida has its fair share of litigious problems. We are, after all, one of the nation’s most notorious “Judicial Hellholes” according to the American Tort Reform Foundation. Just recently, Florida was ranked number two on their 2018-2019 list, namely for assignment of benefits abuse and expansion of medical liability.

However, one of the worst judicial plagues facing our state is the persistent over-inflation of medical damages. As explained by the Florida Justice Reform Institute, medical providers typically bill for much more than what they are actually willing to accept in payment, therefore resulting in medical invoices that exceed the real costs of treatment. In the courtroom, plaintiffs only present to the jury a cost summary of medical expenses billed rather than the amount paid, which results in a vicious cycle of over-inflation of medical damages awarded.

Furthermore, these inflated costs are exacerbated by the fact that Florida prohibits juries from seeing the payments made to plaintiffs by outside parties such as insurance companies. In simple terms, when juries are making decisions regarding damages, they are unable to properly consider the compensation the plaintiff has already received. As a result, the plaintiff is commonly compensated twice for the same damage.

William Large, with the Florida Justice Reform Institute, also points out that letters of protection can be used to grossly misrepresent the real costs of a procedure. Letters of protection are used by insurance companies to show doctors a certain amount they will be payed once a court verdict is handed down.

This is a problem because insurers will often pledge amounts that are far beyond actual costs. For example, in one case, a letter of protection promised a payment of $100,000 for a $30,000 medical service. When medical costs are presented to a jury, they only see the inflated amounts that are outlined in the letter of protection.

Another factor to consider is that letters of protection are intended to reflect only past medical expenses. Juries also consider the potential for future expenses when making their decisions. Consequently, not only will compensation for past expenses be inflated, but the compensation for anticipated future expenses will be exaggerated as well.

Unfortunately, the Florida Legislature has failed to adequately address this problem when presented the opportunity to do so. In the past, legislation filed to deal with this issue of over-inflated medical damages almost always dies in a Committee before it ever makes it to the Floor for a vote. The Legislature must take action to solve this dilemma before it gets worse.

The first, and most obvious solution, is to allow juries to see any outside compensation received by the plaintiff for treatment. This alone could save large sums of money as plaintiffs would no longer be compensated twice for the same services by both insurance companies and defendants dealing with noneconomic damages.

Another crucial element would be to prohibit the submission of any bills to the jury that do not reflect the amount actually paid by a plaintiff after they receive related outside compensation. The current process seriously misleads juries and wrongly harms defendants. If the amount actually expended by the plaintiff was properly presented, compensation awarded by a jury would better reflect the appropriate and fair cost of damages. Of course, simply disallowing the submission of billed amounts and mandating only the amounts paid would avoid confusion from the onset.

It is evident that Florida is in dire need of lawsuit reform, especially when it comes to accuracy in medical damages and the gross over-inflation of medical expenses. Our legal system is responsible for keeping fairness and justice a top priority because, without it, Florida businesses will continue to suffer.