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

By Nina Lincoff Florida, News Source

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  • October 23, 2015

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 $242,000.

“In such a high-risk venue…the fear of malpractice litigation where such large claims are waiting drives the practice of defensive medicine. That is extra tests to be ultra safe for the fear of medical malpractice litigation, and that is not efficient medicine,” Johnson said.

Florida’s current medical malpractice climate builds on itself, Johnson added. States with high loss rates one year are more likely to have high loss rates in the next.

The medical malpractice environment in Florida is driven by a number of factors, including the fact that patients and lawyers are willing to run with malpractice claims.

“Basically, Florida is one of the most litigious states in the country,” said Giselle Lugones, executive vice president, Aon Risk Solutions. A strong legal community for plaintiffs with a lot of money behind it results in an overburden of frivolous claims, she added.

And not only are the plaintiffs lawyers in Florida aggressive, they are extremely skilled.

“As a result of having this strong plaintiffs community, you have a more educated potential plaintiffs where they pursue claims and are more apt and willing to take on the litigation aspect of medical malpractice,” Lugones said. In a climate where there are more willing claimants, it’s logical that the number of claims which result in a payment goes up.

That volume of claims also means that in certain areas of the state, like Miami-Dade County, jury pools are very willing to award high-value settlements, Lugones said.

Those factors, coupled with Florida Supreme Court’s declaration that the caps on non-economic damages of wrongful death claims are unconstitutional and an erosion of the limits on claim filing and awards – tort reform – has created an incubator for medical malpractice claims in Florida.

There is also a trend in Florida to “go bare,” or without medical malpractice insurance. That means that some doctors won’t even consider practicing in the state because the risk is too high, Lugones said.

Previously, many doctors left because of the risk and the cost required to avoid personally paying for medical malpractice claims. “You had an exodus of doctors that were close to retirement, and those in highly specialized fields. They left the state of Florida because they were no longer willing to take the risk,” Lugones said.

That exodus only hurts patients, because it means there is a smaller supply of skilled doctors.

“The cost has been growing recently. Florida has always been a very high state, it has just become more and more high,” Johnson said.

In addition, the number of claims has been increasing in Florida at an average annual rate of 3.3 percent since 2011, and the severity of the claims has been increasing as well, which only drives costs up. And while the immediate victim of a medical malpractice claims would appear to be the medical community, the costs for patients may be just as severe.