Florida Supreme Court Strikes Down State’s Medical Malpractice Reform

Published July 26, 2017

The Florida Supreme Court struck down a state law capping noneconomic damages awarded to clients in medical malpractice lawsuits.

Limiting noneconomic damages to $500,000 in most cases and to $1 million in catastrophic cases is unconstitutional, the court ruled in a 4–3 decision on July 6. Florida enacted the law under former Gov. Jeb Bush in 2003.

Florida doctors pay some of the highest malpractice insurance premiums in the country, Dr. James Palermo reported for SpaceCoastDaily.com on July 10.

The threat of malpractice lawsuits forces doctors to practice defensive medicine by overprescribing services, accounting for a quarter of all medical costs nationally, according to a 2014 op-ed in the Tallahassee Democrat by Julio Fuentes, president of the Florida State Hispanic Chamber of Commerce. Floridians spend more than $40 billion each year on defensive medicine, Fuentes wrote.

Says Expenses Drive Shortage

Sal Nuzzo, vice president of policy and director of the Center for Economic Prosperity at the James Madison Institute, says the court’s decision is judicial activism will hinder health care in the state.

“Whenever judges veer into policymaking, they are pursuing activist agendas,” Nuzzo said. “Regardless of one’s political persuasion, we should all be concerned when unelected judges are making policy from the bench. As long as Florida continues to fail in addressing tort issues, our health care will suffer.”

High medical malpractice insurance and litigation costs deter new doctors from practicing in Florida, Nuzzo says.

“Florida faces a critical shortage of doctors to keep up with our population growth and aging demographics,” Nuzzo said. “In the primary care arena alone, we will need 30,000 more doctors than we currently are expected to have. Among many of the reasons that medical school graduates choose to practice outside of Florida is our atrocious and highly litigious medical malpractice climate.”

Dis(tort)ed System

Dr. Deane Waldman, director of the Center for Healthcare Policy at the Texas Public Policy Foundation, says the medical malpractice system unfairly penalizes doctors.

“The caps were a band-aid used to protect doctors from meritless lawsuits and to increase access to care so doctors would be willing to help high-risk patients,” Waldman said. “But the system should not be automatically blaming doctors for all adverse outcomes.”

Fear of getting sued deters doctors from sharing with other doctors what they have learned from their mistakes, Waldman says.

“The tort system prevents doctors from ever saying they made a mistake and from sharing what they learned,” Waldman said. “In the vast majority of these situations, the only perpetrator is incomplete medical knowledge. We have to look at the whole system and ask why it isn’t improving our ability to learn and why it suppresses medical advancements.”

‘Costs Are Passed On’

Nuzzo says health care will become increasingly unaffordable for patients unless lawmakers change the tort system.

“By negating practical tort reform that protects both patients and providers, medical malpractice premiums will continue to skyrocket and with that the cost of care,” Nuzzo said. “This will ultimately be borne by patients in higher health insurance premiums. The costs are passed on to the ultimate consumers.”

Waldman says judges should let lawmakers reform the tort system so doctors can share knowledge to improve patient care.

“It is very clear to the Florida Legislature there is a medical malpractice crisis, but the Florida high court legislated from the bench,” Waldman said. “This is a fiscal and medical issue, not a judicial one. Doctors need be able to talk to each other freely and share our bad outcomes. People will get better care in a no-fault system.”

Brandon Best ([email protected]) writes from Cedarville, Ohio.

Internet Info:

Hayley Sledge, “House Considers Capping Medical Malpractice Judgments,” Health Care News, The Heartland Institute, June 12, 2017: https://heartland.org/news-opinion/news/house-considers-capping-medical-malpractice-judgments

Veronica Harrison, “States Score Big with Low Medical Malpractice Claims, Few Regulations,” Health Care News, The Heartland Institute, May 18, 2017: https://heartland.org/news-opinion/news/states-score-big-with-low-medical-malpractice-claims-few-regulations

Michael McGrady, “New Jersey Bill Would Expand Malpractice Protection for Charity Care,” Health Care News, The Heartland Institute, June 12, 2017: https://heartland.org/news-opinion/news/new-jersey-bill-would-expand-malpractice-protection-for-charity-care

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