Medical Liability Reform

Problem

In state civil justice systems that lack reasonable limits on liability, multi-million dollar jury awards and settlements in medical liability cases have forced many insurance companies to either leave the market or substantially raise costs.  Increasingly, physicians in these states are choosing to stop practicing medicine, abandon high-risk parts of their practices, or move their practices to other states. 

ATRA's Position:

To help bring a degree of predictability and fairness to the civil justice system that is critical to solving the growing medical access and affordability crisis, ATRA recommends a medical liability reform packages that includes: (1) a $250,000 limit on noneconomic damages; (2) a sliding scale for attorney’s contingent fees; (3) periodic payment of future damages; and (4) abolition of the collateral source. 

Opposition Opinion:

The personal injury bar likes to argue that only insurance companies are to blame for the current medical liability crisis.  Pointing to significant declines in the stock market, they blame insurance companies for raising rates to make up for allegedly irresponsible investing practices.  But market fluctuations cannot fully explain the sharp increases in medical liability insurance pricing, especially since insurance companies invest only 13% of their total investments in stocks.  A better explanation of why insurance companies have raised rates is that they have had to cover the cost of increased claim payments, which have risen almost three times the rate of inflation in recent years.

Medical Liability Reform: H.B. 479 (2011)

Florida|2011

Requires an M.D., D.O., or D.D.S. licensed in another state

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  • Requires an M.D., D.O., or D.D.S. licensed in another state to obtain an expert witness certificate before being able to provide expert testimony in Florida.
  • Gives the Boards of Medicine, Osteopathic Medicine, and Dentistry the specific authority to discipline any expert witness, both those licensed in state and those with an expert witness certificate, who provide deceptive or fraudulent expert witness testimony.
  • Requires the Board of Medicine and the Board of Osteopathic Medicine to create a standard informed consent form that sets forth the recognized risks related to cataract surgery. Provides that an incident resulting from a recognized specific risk is not considered an adverse incident.
  • Deletes the provision in current law that prohibits an insurance company from selling a malpractice insurance policy to a physician that gives the physician the authority to control settlement decisions.
  • Excludes from evidence in any medical negligence action any information regarding an insurer’s reimbursement policies or reimbursement determinations.
  • Provides that the breach of, or failure to comply with, any federal requirement is not admissible as evidence in a medical negligence case.
  • Provides that the expert witness who submits the pre-suit verified expert medical opinion is no longer immune from discipline.
  • Creates a new pre-suit form, the “authorization for release of protected health information.” This will make it easier for a physician to obtain the patient’s health care information in a malpractice suit.
  • Provides that volunteer team physicians are immune from suit when gratuitously rendering care at a school athletic event.

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Unchallenged

Medical Liability Reform: Expert Evidence: H.B. 7015 (2013)

Florida|2013

Provides that a witness qualified as an expert by knowledge, skill,

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Provides that a witness qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion as to the facts at issue in a case under certain circumstances.  It requires the state to interpret and apply the principles of expert testimony in conformity with the United States Supreme Court’s decision in the Daubert case.


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Medical Liability Reform: Noneconomic Damages Reform: CS SB 2-D (special session 2003).

Florida|2003

Provides for emergency room practitioner limits on noneconomic damages of

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Provides for emergency room practitioner limits on noneconomic damages of $150,000 per claimant, with an aggregate of $300,000.  Provides for emergency room facility limits on noneconomic damages of $750,000 per claimant, with an aggregate of $1.5 million and full setoffs for practitioner payments.  Provides for non-practitioner limits on noneconomic damages of $750,000 per claimant, with an aggregate for all claimants.  Provides for practitioner limits on noneconomic damages of $500,000 per claimant, with an aggregate limit for all claimants of $1 million, but no single practitioner shall be liable for more than $500,000 regardless of the number of claimants.


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Medical Liability Reform: Nursing Homes: Punitive Damages: SB 1202 (2001).

Florida|2001

Requires a plaintiff to prove punitive damages by clear and

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Requires a plaintiff to prove punitive damages by clear and convincing evidence in cases against nursing home facilities.  Limits punitive damages against nursing home facilities to the greater of three times the award of compensatory damages or $1 million.  Limits punitive damages against nursing home facilities to the greater of $4 million or four times the award of compensatory damages, where conduct is proven to be motivated by financial gain.  Sets no limit on the award of punitive damages against nursing home facilities, where intentional harm is proven.


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Medical Liability Reform: Noneconomic Damages: CS/SB6 (1988): Fla. Stat. §§ 766.207, 766.209.

Florida|1988

Limits noneconomic damages in medical liability cases to $250,000 in

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Limits noneconomic damages in medical liability cases to $250,000 in arbitration.  Limits noneconomic damages in medical liability cases to $350,000, if the plaintiff refuses to arbitrate.  Sets no limit on noneconomic damages in medical liability cases, where neither party demands binding arbitration, or where the defendant refuses to arbitrate.


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