Florida Passes Malpractice Reform

Published October 1, 2003

After months of squabbling, the Florida House and Senate have reached agreement on legislation capping medical malpractice damages. On August 13 the House passed the compromise bill by a vote of 87-26, and the Senate passed the measure by a vote of 32-4. Governor Jeb Bush then signed the legislation into law.

The new law does not cap economic damages, such as medical bills and lost pay. The measure does, however, cap non-economic damages, such as pain and suffering, at $500,000 per physician and $750,000 per hospital or health care facility.

Two exceptions to the caps are included in the law. The first exception protects emergency room physicians, capping their non-economic damages at $150,000 per physician and $300,000 total (from all practitioners). The second exception allows greater recovery in the most egregious cases, capping recovery at $2.5 million–$1 million from physicians and $1.5 million from hospitals or other health care facilities.

Notably missing in the final bill was a mandatory reduction in malpractice insurance rates. After contemplating a provision that would require insurance companies to immediately lower malpractice insurance premiums, the legislature decided not to include the requirement, out of fear the mandate would be nullified by the courts for interfering with preexisting contracts between doctors and insurers. Instead, the legislation freezes insurance rates for the remainder of 2003 and allows the legislature to impose mandatory cutbacks after January 1, 2004.

Government Officials Happy

Dr. John Agwunobi, head of the Florida Department of Health, praised the legislation as a much-needed solution to skyrocketing medical malpractice insurance rates.

“It assures that over time our system won’t collapse under the weight of an exploding medical-malpractice crisis,” he said. “We’ll be OK.”

“This situation is especially critical for women in Florida,” Bush had said in a June 9 letter to constituents. “Doctors and hospitals close or limit their obstetrics practices and reduce mammography services. As a result, some women in our state are forced to wait as long as 150 days for access to this important screening procedure, losing the opportunity for early detection of problems.”

“I think in the foreseeable future, it will have a calming effect that we’ve reached a compromise and a bill is now ready to become law,” Bush said of the new legislation. “The access-to-care issues that have become more and more serious, I think, will begin to subside.

“I’m confident there will be a reduction in insurance premiums,” Bush added. “I’m confident that we’ll have a better system to deal with the small number of doctors that commit egregious malpractice.”

“I know this legislation will serve its intended purpose and bring relief to physicians, keep insurance companies writing policies in our state, and protect victims of medical malpractice,” said Senate President Jim King.

Bitter Wrangling Over

Prior to final passage of the bill, King had been a constant thorn in Bush’s side. Bush had spent the better part of a year calling on Florida’s Republican-controlled legislature to pass malpractice reform. While the House supported Bush’s proposal for a $250,000 hard cap on non-economic damages, Senate Republicans preferred not to act on the issue, or to pass weaker legislation capping non-economic damages at closer to $1 million per plaintiff. Only after Bush called three separate summer legislative sessions did the House and Senate agree on a compromise measure.

Frustrated by the Senate’s inaction, word leaked that Bush had encouraged campaign donors to withhold donations to Republicans who were opposing malpractice reform. Nevertheless, once the measure passed King appeared willing to put any bad blood behind him.

“There was a time I wasn’t really sure this would ever occur,” said King. “I hope whatever wounds there are, they are quick to heal.”

“It’s a good bill, a bill with a lot of blood, sweat, and tears in it,” said Rep. Allan Bense (R-Panama City), who is expected to become House speaker in 2004.

Not Everyone Pleased

Although most legislators appeared to be satisfied with the compromise bill, few stakeholders appeared genuinely pleased with the outcome.

Many physicians believed too much was given away in the compromise, such that insurance premiums will remain at or near their current rates.

Robert Cline, a Fort Lauderdale heart surgeon and president of the Florida Medical Association, described the bill as “not ideal. But the bottom line is we think some of the things will help.”

“I absolutely agree we don’t give enough relief to the doctors,” added Senator Mike Bennett (R-Bradenton).

The legislation “is about what I expected,” said Dr. Frank Skilling, a Tallahassee eye surgeon. “I don’t think it’s going to get at the heart of the problem, which is that medical malpractice insurance has become prohibitively expensive.”

Trial lawyers were incensed at the cap on non-economic damages and vowed to challenge the law as soon as possible after it takes effect, on September 15.

“If I sign this bill at 3:45, my guess is that at 3:46 they’ll be in front of a judge somewhere, beginning that process,” Bush told reporters at a news conference. But he expressed confidence the legislation would survive a court challenge.

Miami attorney Neal Roth, a former president of the Academy of Florida Trial Lawyers, predicted insurance companies would simply increase their profits as a result of the legislation and would not lower insurance premiums. Roth also asserted the bill fails to assure adequate compensation for the victims of medical malpractice.

“We will be ready to challenge it at the appropriate time,” asserted Roth. “You have to wait until September 15. A case will emerge sometime after that. If it’s the right case with the right facts and fairly compelling damages, so standing to sue can be established, that’s when it will occur. I hope it won’t be too long.”

James M. Taylor is a lawyer in Florida and managing editor of Environment & Climate News. His email address is [email protected].