State: Bush laments high malpractice costs

TALLAHASSEE -- Gov. Jeb Bush said Wednesday that a looming crisis in medical malpractice is driving doctors out of the state and is tied with dealing with classroom size as the No. 1 problem facing Florida.

Bush said it should be one of the top issues the Legislature tackles next year, and House and Senate leaders agree that how much doctors must pay to insure themselves against lawsuits and jury awards must be addressed.

A measure to cap damages for pain and suffering in malpractice cases is likely to surface in the session, which begins in March.

"We have a looming crisis that will impede or impact the quality of care and so we have to act," Bush said, speaking with reporters. "Some degree of litigation reform is necessary to attract insurance into the state. The scarcity of insurance is what drives the rates."

Six companies write medical malpractice insurance in Florida. Four years ago there were more than 40, according to the Florida Insurance Council, a trade group.

But lawyers who represent victims of malpractice say the increase in jury awards is a myth, and that if there are problems it's with the insurance companies and the quality of care that doctors provide.

They say the number of claims has been level in recent years and, taking inflation into account, jury awards have actually gone down.

While doctors cite headline-making seven-figure verdicts as evidence that juries are out of control, malpractice lawyers cite state figures showing the average payout for negligence is about $250,000.

The awards are "not out of control, they're not out of kilter, and the juries are doing their job," said Debra Zappi-Henley, deputy executive director of the Florida Academy of Trial Lawyers. "Do they ever make a mistake? Certainly. That's why the judges are there, to reduce those awards."

But fear of lawsuits is also driving doctors to limit what they do, and in some cases to order unneeded tests, said John Saranko, president of the Florida Academy of Family Physicians and a member of the Coalition to Ensure Patient Access, which wants caps on malpractice awards.

Sen. Anna Cowin, R-Leesburg, said a number of issues are being looked at by a task force set up by Bush, but that caps on pain-and-suffering damages would likely be part of any bill the Senate takes up.

The House also will look at the issue, said Speaker Johnnie Byrd.

Caps on pain and suffering awards "probably would be one of the many solutions that would come up," said Byrd, R-Plant City.

Other parts of the problem should also be looked at, said Byrd and Cowin. Among them: how to make an arbitration system work and whether there should be changes in the rules for lawsuits, such as who can testify as a witness.

Attorneys blame the insurance industry for charging doctors unfair rates.

"If the insurance companies don't want to charge doctors reasonable rates, the state needs to set up a fund that will help doctors get reasonable insurance," said Zappi-Henley.

Sam Miller, a spokesman for the Florida Insurance Council, said insurance companies can't be blamed -- they're losing money on medical malpractice. Insurers also support a cap on damages.

"Last year we paid out $1.36 for every dollar in premium we collected," Miller said. "Every year for the last five years we have paid out more in claims than the premiums we've collected. . . . What's driving the rates is the total amount of money we're paying out, and the vast majority of that is lawsuit driven."

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Lucy Morgan

From the Times state desk