Florida Issues

Legal Services Advertising

Reforms

Legal Advertising – H.B. 1205

Florida|2023

Florida – 2023

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Prohibits a person or entity issuing a legal services advertisement from doing specified things, including presenting the advertisement as a medical alert or as offering advice from a state or federal governmental entity.
Requires a person or entity issuing a legal services advertisement to solicit clients who may allege injury from an FDA-approved prescription drug or medical device to include specified statements and information in the advertisement, in the manner specified in the bill.
Prohibits a person or entity from using, causing to be used, obtaining, selling, transferring, or disclosing a consumer’s protected health information to another person or entity for the purpose of soliciting the consumer for legal services without the consumer’s written authorization, except to an individual’s legal representative under specified circumstances.
Provides that a violation of the bill is a FDUTPA violation.
Specifies that the bill does not limit or otherwise affect the Florida Bar’s authority to regulate the practice of law, enforce its rules of professional conduct, or discipline any person admitted to the practice of law.
Specifies that the bill does not apply to an advertisement that has been reviewed and approved by a Florida Bar ethics or disciplinary committee in accordance with its rules of professional conduct.

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Unchallenged

Attorney General Sunshine / Private Attorney General Sunshine

Reforms

Attorney General Sunshine: H.B. 437; Fla. Stat. § 16.0155

Florida

Prohibited the Department of Legal Affairs of the Office of

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Prohibited the Department of Legal Affairs of the Office of the Attorney General from entering into contingency fee contracts with private attorneys unless the Attorney General made a written determination prior to entering into such a contract that contingency fee representation was both cost effective and in the public interest. Required the Attorney General, upon making his or her written determination, to request proposals from private attorneys to represent the Department of Legal Affairs on contingency-fee basis unless the Attorney General determined in writing that requesting such proposals were not feasible under the circumstances. Provided that written determination did constitute final agency action, and provided that requests for proposals and contract awards were not subject to challenge under the Administrative Procedure Act. Required maintenance of specified records, limited the amount of contingency fee that may be paid to private attorney pursuant to contract with the Department of Legal Affairs, and required Internet posting of specified information

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Appeal Bond Reform: SB 2198 (2009)

Florida|2009

Limits the amount a defendant can be required to pay

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Limits the amount a defendant can be required to pay to secure the right to appeal to $200 million. The limit applies to Engle progeny litigation, and creates an overall appeal bond cap for all of these cases combined. The entities covered by the statute include signatories to the Master Settlement Agreement, successors, and affiliates.

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Unchallenged

Appeal Bond Reform: H.B. 841 (2006); Fla. Stat. § 45.045

Florida|2006

Limits the amount a defendant can be required to pay

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Limits the amount a defendant can be required to pay to secure the right to appeal in any civil action, except for certified class actions subject 768.733, to $50 million.

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Unchallenged

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Class Action Reform: S.B. 2198 (2009)

Florida|2009

Provides that a stay of judgment is executed during interlocutory

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Provides that a stay of judgment is executed during interlocutory appeal.

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Unchallenged

Class Action Reform: H.B. 7529 (2006)

Florida|2006

Prohibits out-of-state residents from filing lawsuits in Florida courts unless

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Prohibits out-of-state residents from filing lawsuits in Florida courts unless the claim occurred or emanated from the state. Requires claimants to prove actual damages in order to maintain certain types of class actions. Would not preclude the Attorney General from bringing a class action to cover statutory penalties.

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Unchallenged

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Joint and Several Liability Reform: H.B. 145 (2006); Fla. Stat. § 768.36, Fla. Stat. § 768.098; Amending Fla. Stat. § 768.81.

Florida|2006

Bars application of joint and several liability in the recovery

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Bars application of joint and several liability in the recovery of all damages.

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Joint and Several Liability Reform: HB 775 (1999); Fla. Stat. Ann. § 768.81.

Florida|1999

Bars application of the rule of joint and several liability,

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Bars application of the rule of joint and several liability, where the plaintiff is at fault, and where the defendant is 10% or less at fault. Limits joint liability to $200,000, where the plaintiff is at fault, and where the defendant is more than 10% but less than 25% at fault. Limits joint liability to $500,000, where the plaintiff is at fault, and where the defendant is at least 25% but not more than 50% at fault. Limits joint liability to $1 million, where the plaintiff is at fault, and where the defendant is more than 50% at fault. Bars application of the rule of joint and several liability, where the plaintiff is not at fault, and where the defendant is less than 10% at fault. Limits joint liability to $500,000, where the plaintiff is not at fault, and where the defendant is at least 10% but less than 25% at fault. Limits joint liability to $1 million, where the plaintiff is not at fault, and where the defendant is at least 25% but not more than 50% at fault. Limits joint liability to $2 million, where the plaintiff is not at fault, and where the defendant is more than 50% at fault.

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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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Challenged and Struck Down

The Florida Supreme Court held the limit on noneconomic damages unconstitutional in Estate of McCall v. United States, 134 So. 3d 894 (Fla. 2014).

Automobile Liability Reform: HB 775 (1999).

Florida|1999

Limits the liability of an owner or lessor of an

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Limits the liability of an owner or lessor of an automobile to $100,000 per person or $300,000 per incident for bodily injury, and $50,000 for property damage. Limits the liability of an uninsured or under-insured person to $500,000 for economic damages only. The reform does not apply in cases involving commercial vehicles used in the ordinary course of business and the transportation of hazardous materials.

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Government Rules Defense: H.B. 775 (1999)

Florida|1999

Provides a rebuttable presumption of liability if the product violated

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Provides a rebuttable presumption of liability if the product violated any such standards. Provides a rebuttable presumption that a product is not defective if the product met federal or state standards.

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Unchallenged

State of the Art Defense: H.B. 775 (1999)

Florida|1999

Requires a jury to consider the state of the art

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Requires a jury to consider the state of the art of scientific and technical knowledge that existed at the time when the product was manufactured.

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Unchallenged

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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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Punitive Damages Reform: HB 775 (1999)

Florida|1999

Limits punitive damages to the greater of three times the

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Limits punitive damages to the greater of three times the award of compensatory damages or $500,000. Limits punitive damages to he greater of four times compensatory damages or $2,000,000, where the defendant’s wrongful conduct was motivated by an unreasonable financial gain or the likelihood of injury was known. Prohibits the award of multiple punitive damages awards based on the same act or course of conduct unless the court makes a specific finding that earlier punitive damages awards were insufficient. Requires a plaintiff to prove by clear and convincing evidence that a defendant acted with intentional misconduct or gross negligence for the award of punitive damages. Outlines circumstances when an employer is liable for punitive damages arising from an employee’s conduct. The reform does not apply to cases involving abuses to the elderly or children, or cases where the defendant is intoxicated.

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Unchallenged

Miscellaneous

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Assignment of Benefits / Auto Glass Repair – S.B. 1002

Florida|2023

Florida – 2023

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Prohibits repair shops from offering an inducement to a customer in exchange for making an insurance claim for motor vehicle glass repair and also prohibits a policyholder or other person from entering into an assignment of post-loss benefits for motor vehicle glass repair, including for calibration or recalibration of advanced driver assistance systems.

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Unchallenged

Comprehensive Tort Reform – H.B. 837

Florida|2023

Florida – 2023

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Provides uniform standards to assist juries in calculating the accurate value of medical damages in personal injury or wrongful death actions and addresses letters or protection.
Changes Florida’s comparative negligence system from a pure comparative negligence system to a modified system, except for medical negligence cases, so that a plaintiff who is more at fault for his or her own injuries than the defendant may not generally recover damages from the defendant.
Modifies Florida’s “bad faith” framework to:
- Allow an insurer to avoid third-party bad faith liability if the insurer tenders the policy limits or the amount demanded by the claimant within 120 days after receiving actual notice of the claim.
- Clarify that negligence alone is not enough to demonstrate bad faith.
- Require a claimant to act in good faith with respect to furnishing information, making demands, setting deadlines, and attempting to settle the insurance claim.
- Allow an insurer, when there are multiple claimants in a single action, to limit the insurer’s bad faith liability by paying the total amount of the policy limits at the outset.
Provides that a contingency fee multiplier for an attorney fee award is appropriate only in a rare and exceptional circumstance, adopting the federal standard.
Provides that Florida’s one-way attorney fee provisions for insurance cases apply in limited situations.
Requires the trier of fact in certain negligent security actions to consider the fault of all persons who contributed to the injury, establishes a presumption against negligent security liability in specified situations, and expands immunity for a property owner defending a lawsuit against a criminal actor who is injured on the property.
Reduces the statute of limitations for general negligence cases from 4 years to 2 years.

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Unchallenged

New Florida Bill to Regulate Misleading Legal Services Ads on Pharmaceutical Drugs and Medical Devices

Press Releases

ATRA’s Latest Data Reveals $271.8 Million Spent on Legal Services Advertising in Florida in 2022; Florida Accounted for Nearly 20% of Radio Ad Spending Nationwide

Florida Lawmakers Pass Landmark Legal Reform

Press Releases

HB 837 heads to Governor’s desk

Legal Services Advertising

Phantom Damages Reform

Attorney General Sunshine / Private Attorney General Sunshine

Appeal Bond Reform

Class Action Reform

Joint and Several Liability

Judgement Interest Reform

Medical Liability Reform

Noneconomic Damages Reform

Product Liability

Punitive Damages

Miscellaneous

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