So, it’s over. Another legislative session. For the 15th time in 15 years, the Florida Legislature debated "tort reform" seeking to restrict or eliminate the rights of Floridians maimed or killed due to medical neglect. (I leave "tort reform" in quotes because it is less about reform and more about eliminating rights.) This year they did it again. This year they passed more "tort reform." Thanks in large part to a state representative named Matt Gaetz, R-Fort Walton Beach, the Florida legislature made it more difficult for patients injured due to medical neglect to bring claims or to succeed in claims for money damages.
For some, this is a good thing. Doctors, hospitals, and the liability insurance companies who insure them are obviously content. Those who believe that “greedy trial lawyers” and “runaway juries” are a threat to our economy, welfare, and health care system, are also content.
For years, big business, big insurance, and the health care industry have inundated us with the myth that the civil justice system is not trustworthy and/or that it is damaging our economy.
But the facts don’t jive with the “tort reform” message. As I have pointed out elsewhere in these pages, juries are not out of control and the civil justice system is causing little, if any, increased costs. In fact, the civil justice system is an essential aspect of a public policy seeking safety and excellence in medical care. See "For Safety's Sake: Doctors Expose Medical Malpractice Myths."
What is certain is that every time the legislature makes it more difficult to bring a case, the civil justice system grows less capable of dispensing justice, and less capable of protecting us or giving us safer medical care.
This year, the new law makes it more difficult to retain expert witnesses to testify about what went wrong. Ignoring the fact that medicine is interdisciplinary and interdependent, the Bill just passed now prohibits overlapping medical specialties from offering expert opinions about what went wrong in a case. Even if two physicians are trained to perform the exact same procedure the exact same way, and even where they work together, hand in glove, on the procedure or the patient’s condition, they cannot opine on the care rendered if their background or training is in different specialties. In a world where negligence and wrongdoing have no consequences, negligence and wrongdoing thrive.
In hospital quality assurance committees throughout the country, such physicians give their advice and opinions about each other’s care all the time. They publish peer reviewed literature together all the time.
But in Florida courtrooms, they are now muzzled. So a neurosurgeon and an orthopedic surgeon may be trained to perform spinal surgeon the exact same way for the exact same patient, but as it relates to each other, they are muzzled. A chest surgeon and a cardiologist, both trained to do catheterization type procedures, can work together, can publish together, can treat the exact same condition with the exact same procedure, but in a Florida courtroom, they are muzzled.
All of this is cynically constructed to make it harder for patients to find experts. Already constrained by the so-called “conspiracy of silence” in which physicians are naturally reluctant to testify against their colleagues, plaintiff’s lawyers and their clients now have an even smaller pond from which to find qualified experts. There is no rational basis for this legislation. It is, instead, a mean spirited attempt to stack the deck further against the injured patients and their lawyers.
Indeed, the irrational nature of this legislation is proven in the American Medical Association's model statutes published and disseminated for state legislatures and lobbyists throughout the country. The AMA itself recommends legislation that allows for testimony by health care providers about the standard of care so long as they have appropriate experience treating the condition or performing the procedure. The AMA goes out of its way to prevent arbitrarily limiting the expert to "same" specialty; the AMA recognizes, as it should and as the Florida legislature should, that modern medicine and the standard of care are about the disease, condition or procedure, not what title or specialty a given physician was trained in long ago.
The other aspect of the new law is to allow “ex parte” communications with patients’ treating physicians. Where it used to be that the defendant doctor’s lawyer could not speak with the patient’s treating physicians outside the presence of the patient or her lawyer, the new law will allow this practice. Privacy rights have been sacrificed in order to further stack the deck against the injured patient.
The Florida legislature finds favor in these types of laws. They, and many of their constituents, still believe in the “tort reform” myths. They fear, or find political refuge in, the bogeyman, which to them is “greedy trial lawyers” or the runaway jury. The real bogeyman is no fantasy, but instead a very real, and very dangerous problem: unsafe medical care. One hundred thousand (100,000) people a year die in hospitals due to medical malpractice. Many more suffer catastrophic injures like quadriplegia, amputations, brain injuries, loss of organs, and blindness. When is the last time the Florida legislature did anything to protect patients? To enhance and increase safety at Florida hospitals? Has it ever? It is high time we found a new way of thinking and a new way of doing business in Tallahassee.