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Florida enacts tort reform; medicine disappointed with $500,000 cap

Physicians take a wait-and-see approach to the law, the 10th state medical liability measure to pass in the last year.

By Tanya Albert, amednews staff. Sept. 1, 2003.

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After a long and sometimes contentious debate, Florida last month joined a growing list of states that have passed tort reform packages without the $250,000 noneconomic damages cap long sought by physicians.

The Florida Legislature in August approved a compromise bill that includes a $500,000 cap on noneconomic damages against individual physicians in most cases and a $1 million noneconomic damages cap that one or more plaintiffs can collect against multiple physicians.

As has been the case nationwide, physicians and Republicans in Florida saw a $250,000 cap as the most effective way to rein in liability insurance premiums that can exceed $200,000 for some obstetricians. But trial lawyers and Democrats saw insurance law reform as the answer.

Neither side got entirely what it wanted.

The bill passed after 10 months of heated debates and three special legislative sessions. Gov. Jeb Bush -- who sided with the Florida Medical Assn. as a strong supporter of a $250,000 noneconomic damages cap -- signed the measure a day after the Legislature adopted it. The law is set to take effect Sept. 15.

The FMA says the package is not the ideal solution but that some of its provisions might help.

"The bill includes patient safety measures, a $150,000 cap for emergency room physicians and requires annual rate filing, along with freezing rates," said FMA President Robert Cline, MD. "We will have to wait and see what happens."

Florida is one of the 19 states that the American Medical Association says is in the middle of a medical liability crisis because physicians there are leaving the state, retiring early or discontinuing high-risk services because they can't afford or obtain insurance. During the political debate, the FMA delivered affidavits to state legislators from 1,600 doctors saying they were limiting their practices or planning to close shop if things didn't get better.

"Hopefully it's going to work, but only time will tell," said pediatrician Carolyn Carter, MD, president of the Alachua County Medical Society, of the new law. "If it doesn't work, we'll be back to the drawing board."

Others are more direct in their assessment.

"The bill is terrible," said Jack Seddon, executive director of the Tallahassee, Fla.-based Federation of Physicians and Dentists. "Although the bill touts a $500,000 cap, you can pierce the cap too easily. It's a sham. If they think they are going to appease the doctors, they're crazy."

Confusing cap

The cap enacted under the 117-page bill is a complicated one.

Individual physicians will be protected by a $500,000 limit on noneconomic damages, no matter how many plaintiffs join the lawsuit.

But there are several situations in which the cap can be "pierced."

In cases involving wrongful death or permanent vegetative state, a single plaintiff can recover up to $1 million in noneconomic damages from a single physician. However, if there is more than one physician involved in the patient's care, the cap still stands at $1 million total, not $1 million per physician. Also, if there is more than one plaintiff, the noneconomic damages cap still stands at $1 million total, not $1 million per plaintiff, according to the FMA.

The cap also can be exceeded in cases in which a trial court found that a "manifest injustice" would occur if the lower cap were used and a catastrophic injury (for example, severe paralysis, amputation or severe burns) had occurred. In that case, an injured patient could recover up to $1 million in noneconomic damages.

The law also:

• Extends sovereign immunity -- the government's immunity to lawsuits -- to team physicians who contract with state colleges or state universities to provide intercollegiate athletes with medical services.
• Requires that expert witnesses be in the same or similar specialties as the defendants and have been in the active practice of medicine in the past three years, involved in teaching or in a clinical research program.
• Mandates that experts who sign pre-suit affidavits that allow lawsuits to be filed have the same qualifications as experts who testify at trial.
• Freezes insurance rates in effect on July 1, 2003, until new rates are calculated that take into account the new law's impact. The new rates are to take effect no later than Jan. 1, 2004.

But the legislation does not contain several provisions favored by physicians, including a specific rollback of insurance rates, which was discussed in earlier versions of the bill. It also fails to establish joint and several liability.

When the legislation is looked at as a whole, physicians don't come out with a solution to their insurance problem, said Neal Roth, a past president of the Academy of Florida Trial Lawyers and co-chair of the organization's medical liability committee.

"While I have respect for members of the Legislature, at the end of the day, politics prevailed over good public policy," he said. "In the final analysis, [doctors] lose."

Roth said insurance reform is needed to solve the liability crisis, and that physicians and trial lawyers need to form an alliance to find a way for doctors to get better reimbursement and better leverage in HMO negotiations so that physicians can pass along liability insurance costs.

How Florida's law stacks up

The Sunshine State joins Arkansas, Georgia, Mississippi, Nevada, Ohio and Pennsylvania as states that have passed tort reform packages in the past year with no cap or one higher than $250,000. Nevada's and Ohio's reforms included $350,000 caps; Mississippi enacted a $500,000 limit. Georgia, Arkansas and Pennsylvania did not include any cap. Both Arkansas' and Pennsylvania's constitutions prohibit award limits.

To date, Texas has been the only state without an existing noneconomic damages cap to pass a $250,000 limit. Anticipating that the cap will be challenged in court and thrown out, as had happened before, the Legislature called for a public vote on whether the limit is legal, with a vote scheduled for Sept. 13. The Idaho and West Virginia Legislatures this year rolled back their existing noneconomic damages caps to $250,000.

In many states that passed reform without a $250,000 cap, physicians have seen the changes as a first step. As doctors digest Florida's new law, a similar attitude prevails.

"It's difficult to know what the impact will be," said John G. Clarkson, MD, dean of the University of Miami School of Medicine and senior vice president for medical affairs. "It's better to have something than nothing, but it fell short of everyone's goals."

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