2012 National and Florida Medical Malpractice Legislation Commentary

The most recent Florida legislative session concluded just over a month ago. Once again, both the House and Senate of the Florida legislature considered bills to further protect doctors and healthcare providers. Year after year, the legislators in Tallahassee draft bills designed to immunize what is likely the most protected group of citizens in this state. Yet, they do nothing to benefit the other side, the victims and families of those injured by medical negligence.

In addition, not only do we constantly see laws designed to protect doctors and healthcare providers in the state of Florida, but the trend is continuing on the national level as well.

United States House Resolution 5 is a piece of legislation that passed out of the Unites States House of Representatives earlier this year and which would drastically affect medical malpractice all throughout the country. While H.R. 5 was already passed by the House of Representatives, the House Energy and Commerce Committee and the House Judiciary Committee are presently meeting in their respective committees to continue debating and possibly amending the bill.

Purportedly, the goal of H.R. 5 is to stabilize medical malpractice insurance rates. But, where is the evidence? This argument is constantly made, yet there is simply no factual support. Placing a cap on victims’ recoveries will not magically keep medical malpractice insurance rates from rising. Rather, placing a cap on victims’ recoveries will further immunize and protect hospitals, nursing homes, physicians, pharmaceutical companies, medical device companies, and insurance companies. H.R. 5 would impose an arbitrary and unfair cap of $250,000 on non-economic damages and would override and preempt states with laws more protective of patients’ rights. The autonomy of the states to control medical liability matters has long been a hallmark of the justice system. While efforts are currently being made via amendments to remove the most egregious and catastrophic cases from the $250,000 cap on non-economic damages, nothing is guaranteed. In addition, the bill would shorten the time a patient has to file a lawsuit and limit the fees for patients’ attorneys while providing no limits on the opposing side’s attorney fees. Medical malpractice cases are some of the most expensive, complicated and risky cases to pursue. By the time a catastrophic injury case involving medical malpractice reaches the courtroom, hundreds of thousands of dollars could be spent and endless hours, weeks, months and possibly years of work. H.R. 5 would severely limit, if not eliminate, a plaintiff’s attorney from taking on a medical malpractice case with significant non-economic damages, but little economic damages. While the bill still has an uphill battle because it must be passed by the United States Senate and then signed by the President, the concern continues on the national level as the United States legislature tries to expand its role into the realm of the state judicial system.

The protections for doctors continue yet again on the state level here in Florida. While the most recent Florida legislative session may have proven to be successful on some fronts to Florida medical malpractice victims based on certain bills that did not pass, there is still need to be concerned. The bills considered this year if they had passed, would have further impeded the rights of medical negligence victims throughout Florida. Although they did not pass, there is no reason to relax. We are dealing with a recurrent cycle and these bills discussed herein, as well as others intending to protect doctors and harm victims, will almost certainly come to the forefront once again next session.

Florida House Bill 385 included provisions that would grant sovereign immunity to emergency room physicians. This bill would have imposed a $200,000 cap on all damages for a patient injured by the hands of an emergency room physician. This cap on all damages, economic and non-economic: the past and future medical expenses of a patient, lost wages, the mental anguish and pain and suffering, would in no way compensate those victims who are seriously injured due to the actions of emergency room physicians.

In addition, by its very meaning, sovereign immunity would provide the protection of the government even over private hospitals and private health care providers. This makes absolutely no sense. Why should healthcare providers who are in no way affiliated with the government be provided with the additional protection of the government? All costs related to the defense of these particular cases would be paid by the government and that means by Florida taxpayers. Furthermore, while the arbitrarily capped amount of $200,000 would be the responsibility of the negligent physician, any amount in excess of that by way of a claims bill or if the $200,000 was uncollectable from the physician, would also be the responsibility of the Florida government and therefore, Florida taxpayers.

Should this law have passed, we would have seen an unparalleled interference of the government into the realm of private healthcare. Why are taxpayer dollars being utilized to protect privately funded healthcare institutions and its providers? Not only would this law have had extensive impacts on the ability of victims to bring claims against emergency room physicians to be fully compensated for injuries sustained, but imagine the potential monetary impact on the state with this added responsibility to protect and provide for these private healthcare providers.

Florida Senate Bill 1506 included provisions that would grant sovereign immunity to emergency room physicians like HB 385 above. This bill also included provisions creating a clear and convincing burden of proof for supplemental diagnostic testing as well as allowing for ex parte communications with treating physicians.

SB 1506 would provide a special immunity to doctors by raising the burden of proof for the failure to order, perform, or administer supplemental diagnostic testing from a “greater weight of the evidence” standard to a “clear and convincing standard.” This would require evidence “that is precise, explicit, lacking in confusion, and of such weight that it produces a firm belief or conviction, without hesitation, about the matter in issue.” What demonstrative evidence is there that this type of standard is now needed? Are there immense numbers of frivolous lawsuits being brought for issues pertaining to supplemental diagnostic testing? No need for such an increase in the burden of proof is provided for in the law.

Not only does this place a higher burden on the medical malpractice victim, but it also creates an ambiguity. What is meant by “supplemental diagnostic test?” There is no definition provided for “supplemental diagnostic test.” How far would the health care providers go to argue that something is a supplemental diagnostic test and therefore requiring this higher standard? Extremely far.

Where does protection for doctors stop? Does SB 1506 provide the starting point for what is to be seen down the road? Will all healthcare providers be provided with such immense insulation by way of a higher burden of proof required to prove a case of medical negligence?

What’s more, SB 1506 also contained a provision allowing for ex parte communication with treating physicians. This means that the health care provider being sued or his or her legal representatives could communicate or meet with a medical malpractice victim’s treating physicians outside of the presence of the patient or their attorney. This would effectively destroy one of the most fundamental rights of patients, the doctor-patient privilege. Patients divulge information and share their most intimate issues to physicians trusting that such information will not be divulged. Should this law have passed, there truly would have been a complete invasion of the rights of patients throughout the state.

Florida Senate Bill 1316 had provisions adopting the language pertaining to the clear and convincing standard for supplemental diagnostic testing and ex parte communications as described above. SB 1316 also included provisions relating to arbitration. The bill allows for doctors, dentists, optometrists or hospitals to demand that patients sign away their rights to a jury trial and instead mandating arbitration be utilized should a medical malpractice victim choose to pursue a claim. Incredibly, the bill would actually allow the healthcare provider to arbitrarily choose a cap on all damages, economic and non-economic. The bill provided no parameters whatsoever regarding the limitation to the award of damages in such an arbitration award.

Imagine for a moment that you were given a stack of paperwork to fill out before being operated on that said somewhere in fine print that any damages due to any alleged medical negligence would be capped at $50,000. The victim and his or her family would be left with $50,000 even after suffering a catastrophic injury. This is completely unjust and would destroy the right of medical malpractice victims and their families to be even remotely compensated for their injuries.

Additionally, this bill states that the arbitration papers can be signed when a claim currently exists or which may accrue in the future. Therefore, this bill would effectively allow a doctor to have his or her patient sign documentation mandating arbitration be utilized after the doctor is aware of his or her errors or mistakes, but prior to the patient becoming aware of the doctor’s errors or mistakes. These tactics, while completely inappropriate and unfair, would almost certainly be utilized by healthcare providers to take advantage of their patients and their mistakes.

Doctors and insurance companies will continue to fight for more restrictive legislation. They will continue to fight to place doctors in a class by themselves, with their own laws, above every other type of citizen in this state. Maybe their end game is to manipulate the system to a point where no attorney will be able to pursue a medical malpractice case. The burden may be too high - or the caps are too severe - or patients lose all rights to pursue a case in a jury trial - or maybe all private healthcare providers are granted governmental sovereign immunity. Where does it stop?