Fla. Lawmakers Find Common Ground in Med-Mal Debate

August 11, 2003

Florida Governor Jeb Bush, Senate President Jim King, and House Speaker Johnnie Byrd announced that state legislators have reached an agreement on key elements of medical malpractice reform.

The governor said the agreement will protect access to health care for Floridians, encourage quality care through preventive strategies and enhanced disciplinary action, reduce ever-increasing insurance premiums for Florida’s physicians, maintain remedies for future victims of medical malpractice, and increase physicians’ access to affordable insurance coverage.

Not all parties involved in negotiations for medical malpractice reform in Florida were completely happy about the bill. The Florida Medical Association issued a statement thanking Bush, the House and the Senate “for their diligence and perseverance in working toward a solution to the crisis facing Florida’s patients.” However, the group was reticent to fully support the bill until certain changes are made.

Provisions in the proposed medical malpractice legislation include:
· Providing reasonable caps for emergency medical care practitioners and emergency rooms. Specifically, the noneconomic damage caps agreed upon are:
· ER practitioner caps of $150,000 per claimant, with aggregate to $300,000 and no piercing.
· ER facility caps of $750,000 per claimant with aggregate to $1.5 million with no piercing and full setoffs for practitioner payments.
· Providing for caps on noneconomic damages based on two categories: practitioners and non-practitioners. Practitioners include physicians, advanced registered nurse practitioners, dentists, and other licensed health care practitioners. Non-practitioner defendants include hospitals, ambulatory surgery centers, hospices, managed care companies, laboratories and others. Liability would continue to be pursued against the nurse’s employer, which could be a practitioner or a non-practitioner. Non-practitioner defendants are subject to their own cap even if the theory of liability is vicarious liability. Setoffs would be for noneconomic damages within the same category, except emergency room situations where the hospital will have a full setoff of payments made by a practitioner. Specifically, the amounts of the agreed upon caps are:
· Non-practitioner caps of $750,000 per claimant, with aggregate for all claimants and piercing to $1.5 million for death, permanent vegetative state, or limited catastrophic injuries.
· Practitioner caps of $500,000 per claimant with aggregate for all claimants to $1 million, but no single practitioner shall be liable for more than $500,000 regardless of the number of claimants; piercing available up to $1 million regardless of the number of claimants or defendants for death, permanent vegetative state, or limited catastrophic injuries.
· Maintaining current law regarding who can bring suit for bad faith and how much they can recover. Providing a “safe harbor” promotes greater exchange of information and quicker resolutions without being subject to bad faith litigation that would encourage insurance companies to settle claims without being subject to bad faith litigation, and specifying considerations that may be used to resolve bad faith cases outside the safe harbor. This would protect both Florida’s doctors and future victims.
· Providing an immediate insurance rate freeze for physician premiums until new reduced rates could be filed and approved for January 1st which would roll back premiums based on the cost savings derived from the legislation.

“The reforms outlined in this latest proposal will protect access to care for the people of this state, which is our primary goal,” Gov. Bush said. “This legislation will create stability in the insurance market and provide insurance relief for doctors. I commend the Legislature for their continued efforts to reach agreement on a very complex issue that has a direct impact on every Floridian.”

The FMA said that although there are provisions in the legislation that will help solve the the problem in hospital emergency rooms and trauma centers, the exceptions to the $500,000 practitioner cap “that increases to $1,000,000 will not provide the relief necessary to ensure access to high quality care for all Floridians.”

The group expressed hope that the lawmakers would “make the necessary changes to the cap language that will allow physicians to remain in their practices.”

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