Category Archives: Florida

March 2019 Newsletter

Supreme Court changes could improve Florida’s liability climate The liability climate may be changing for the better in Florida, where access to care advocates are optimistic that new state Supreme Court justices will rule in favor of reform. Recently dubbed as the nation’s second worst “judicial hellhole” by the American Tort Reform Association, prior sitting justices voted in 2014 and 2017 to overturn medical liability legislation passed by the state legislature. With three new justices recently appointed to the court, advocates across the state have reason to be hopeful. State Rep. Tom Leek hopes that comprehensive medical liability reforms, including reasonable limits on non-economic damages, will bring justice to deserving patients and help keep health care costs affordable for the state’s aging population. With medical liability reform, “you provide predictability,” Leek said. “You allow insurance carriers to have a better understanding of what their exposure is and with that they can set premiums that are reasonable.” Leek’s recently introduced legislation is supported by the state business community thanks to the positive impact it would have on health care affordability and reduced medical lawsuit abuse, but still faces a high hurdle of opposition. To read more about the renewed push for…

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New Supreme Court emboldening Florida lawmakers to push tort reform — again

SOURCE: Herald-Tribune The Florida Supreme Court has consistently struck down caps on how much a person who is injured through others’ negligence can receive in financial compensation for their pain and suffering. In 1986 the Legislature adopted a $450,000 cap on so-called “noneconomic damages” in all personal injury cases. It was overturned the next year. In 2003 the Legislature put caps on noneconomic damage awards in medical malpractice cases. The caps were overturned by the court in 2014 and 2017. Now lawmakers want to try again. A bill that advanced in the Florida House Wednesday would reinstate a cap on noneconomic damages in all personal injury cases. The bill is another sign that a new-look Supreme Court packed with conservative justices is emboldening lawmakers to revive ideas that had been deemed unconstitutional in the past. Abortion and school vouchers are two other areas where the court has stifled the GOP-controlled Legislature but there is renewed activity this year. Republican Gov. Ron DeSantis’ appointment of three new Supreme Court justices is giving GOP lawmakers reason to be hopeful about such issues. State Rep. Tom Leek, R-Ormond Beach, who works as an attorney for the Daytona Beach insurance firm Foundation Risk Partners,…

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December 2018 Newsletter

An opinion on collateral source reform in Florida A recent op-ed by a former Florida legislator highlighted the dysfunction in the state’s liability system, including how the lack of collateral source reform in medical liability cases has led to inflated and unnecessary costs. Don Brown, previously a representative in the Florida House, weighed in on Florida’s recent number two position on American Tort Reform Association’s “Judicial Hellholes” list – and on one of the driving factors of increased liability across the state. “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,” Brown wrote. The issue at hand is the collateral source rule, where a defendant is prohibited from introducing in court any evidence of payments received by the plaintiff, from sources other than the defendant, which might remedy some of the plaintiff’s economic losses. The result is double recovery of damages by plaintiffs since both the defendant and another party, such as an insurance company, pay for the same loss. “The first, and most obvious solution, is to allow juries to see any outside compensation received by the plaintiff for treatment,” Brown suggested….

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DON BROWN: Inaccuracy in damages a problem in Florida

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…

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Legal reform advocates point to medical malpractice figures in New York, Pennsylvania

ALBANY, N.Y. (Legal Newsline) – Experts who have watched medical malpractice lawsuits skyrocket in states like New York, Rhode Island and New Jersey say lawmakers have made it too easy and attractive to sue and reform must happen. “New Yorkers once again pay more for medical liability than anywhere in America,” Tom Stebbins, executive director of Lawsuit Reform Alliance of New York told Legal Newsline. “Sadly, Albany recently made matters worse by approving legislation that expands liability and makes it easier to file lawsuits.” The “2018 Medical Malpractice Payout Analysis” released March 1 by Diederich Health Care, a medical liability insurance and consulting company based in Carbondale, Illinois, includes figures comparing medical malpractice rates among states. Among Northeast states, New York topped the list for the most malpractice cases with a total approximate $617,973,000 in payouts with Pennsylvania second at $342,093,300, and New Jersey third with $267,913,250. The lowest in the Northeast were the District of Columbia with $11,498,500, Delaware with $8,253,250 and Vermont at the bottom with $1,536,500. Among Midwestern states, Illinois was far in the lead with $300,790,050 in payouts with Michigan second at $77,072,200. The lowest Midwestern states were Wisconsin at $13,527,100, North Dakota with $3,505,000 and…

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December 2017 Newsletter

Year-end report sheds light on “Judicial Hellholes” The American Tort Reform Association (ATRA) end-of-year “Judicial Hellholes” report offers a public glimpse at the most unfriendly jurisdictions for those defending themselves against civil litigation, including medical liability lawsuits. At the top of the list this year was Florida, where once-strong medical liability reforms have been continuously rolled back at the expense of patients seeking affordable and accessible care. “This year, thanks to a state high court majority’s barely contained contempt for the policy-making authority of the legislative and executive branches of government, and a notoriously aggressive and sometimes lawless plaintiffs’ bar, Florida earns the ignominious #1 ranking among eight Judicial Hellholes…” said American Tort Reform Association president Tiger Joyce. Also high on the list was St. Louis, where “antiquated rules have made it a favorite of personal-injury lawyers shopping for big-money verdicts” resulting in $300 million in awards since 2015. However, recent changes in state government, including a governor in support of changes to the liability system, do hold promise for much-needed reform in the coming year. To read more about ATRA’s “Judicial Hellholes” executive summary and report on the where physicians and defendants fare the worst when it comes to…

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Top cases show physicians had a forceful ally in the courts

One thing physicians from Florida to Hawaii had in common in 2017 was that the Litigation Center of the American Medical Association and State Medical Societies had their backs. The Litigation Center was involved in legal battles that helped prevent an insurance mega-merger, protected physicians’ right to free speech, and fought back on multiple fronts against attempts to sidestep or peel back established state liability reforms. But it was a case involving the staff at a hospital in rural California that may have attracted the most attention. Case signaled threat to end medical staff independence in California. In Tulare Regional Medical Center Medical Staff v. Tulare Local Healthcare District et al, the Litigation Center provided significant legal and financial support after the hospital’s board of directors voted to terminate the medical staff organization, remove elected medical staff officers, install a slate of appointed officers and approve new medical staff bylaws and rules without staff input. “This case serves as an existential threat to independent hospital medical staffs,” said Long Do, California Medical Association (CMA) legal counsel and director of litigation. Just before closing arguments were scheduled in October, Tulare filed for Chapter 9 bankruptcy. As part the process, the hospital…

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High Court’s Contempt for Lawmakers’ Authority, Lawsuit Rackets Place Florida atop Latest ‘Judicial Hellholes’ List

WASHINGTON, D.C., December 5, 2017 – The American Tort Reform Foundation issued its 2017-2018 Judicial Hellholes® report today, naming courts in Florida, California, Missouri, New York, Pennsylvania, New Jersey, Illinois and Louisiana among the nation’s “most unfair” in their handling of civil litigation. “With both this annual report and a year-round website, our Judicial Hellholes program since 2002 has been documenting troubling developments in jurisdictions where civil court judges systematically apply laws and court procedures in an unfair and unbalanced manner, generally to the disadvantage of defendants,” began American Tort Reform Association president Tiger Joyce. “This year, thanks to a state high court majority’s barely contained contempt for the policy-making authority of the legislative and executive branches of government, and a notoriously aggressive and sometimes lawless plaintiffs’ bar, Florida earns the ignominious #1 ranking among eight Judicial Hellholes, even as authorities have begun to crack down on some of the lawsuit industry’s most obviously fraudulent rackets. “Ranked #2 is perennial hellhole California, where lawmakers, prosecutors and plaintiff-friendly judges inexorably expand civil liability at the expense of businesses, jobseekers and those desperately in need of affordable housing,” Joyce explained. “The good news is the U.S. Supreme Court in June reversed a…

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November 2017 Newsletter

Physician opinions: medical liability lawsuits and impact on care Holding strong opinions about the current liability climate, its impact on patient care, and the way to discourage medical lawsuit abuse, physicians weighed in on the way toward comprehensive medical liability reform. Surveying over 4100 physicians across more than 25 specialties currently practicing in the US, Medscape captured the prevailing thoughts of physicians who bear the brunt of a broken system that costs too much, takes too long, and undermines their relationship with their patients. With 55 percent of those taking part in the survey responding that they had been named in a medical liability lawsuit, specialists across surgery and OB/GYN practices were found to be most likely to be sued. Eighty-five percent of respondents in each specialty noted that at one point or another in their careers, they were forced to spend countless hours on defense preparation and in court for lawsuits, that, 40 percent of the time, took between one to two years to resolve. As a result, 45 percent of physicians report that the threat of medical liability lawsuits are on their mind all or most of the time – a driving factor in the practice of defensive…

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Florida Supreme Court tosses out part of state medical malpractice law

TALLAHASSEE– Saying that changes approved by lawmakers “have gashed Florida’s constitutional right to privacy,” a sharply divided Florida Supreme Court on Thursday rejected parts of a controversial 2013 medical-malpractice law. Justices, in a 4-3 decision, said the 2013 law — which involved an issue known as “ex parte” communications between doctors and defense attorneys — could lead to the disclosure of patients’ private health information that is unrelated to malpractice cases. The law dealt with the process in which defense attorneys gather information in medical-malpractice disputes and their conversations with doctors who treat plaintiffs for reasons unrelated to the alleged malpractice. The 2013 law would allow such conversations, at least in certain circumstances, to occur outside the presence of the plaintiffs’ attorneys. Opponents of the law argued that such “ex parte” communications could lead to violations of patient privacy. “Even the possibility that a person’s extremely sensitive private medical information will be exposed is the type of governmental intrusion that the Florida Constitution protects against because it is impossible to know if an inadvertent disclosure occurred when the meetings are not only ex parte and without a judge, but also secret without a record,” Justice R. Fred Lewis wrote in…

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