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Panel: Cap malpractice awards

Among its proposals to curb the malpractice insurance crisis, a task force wants damages limited for pain and suffering.

By LUCY MORGAN, Times Tallahassee Bureau Chief

© St. Petersburg Times
published February 5, 2003

TALLAHASSEE -- Florida should cap damages for pain and suffering at $250,000, toughen discipline of doctors and improve patient care to ease a medical malpractice insurance crisis, a task force recommended Tuesday.

John Hitt, president of the University of Central Florida and the chairman of a task force appointed by Gov. Jeb Bush, outlined many of the task force's 60 recommendations.

"Is it a crisis?" Hitt asked. "We believe it does rise to the level of a crisis."

Bush praised some of the task force's key proposals, including the cap on damages for pain and suffering. The recommendations set the stage for another battle between doctors and lawyers during the legislative session that starts March 4.

Three years ago, Florida had 66 insurance companies writing medical malpractice insurance for the state's doctors. All but 12 are gone, and only three or four will write insurance for new doctors.

Hitt estimated more than 12,000 of the state's 47,000 doctors are working without insurance. Without insurance, patients who are the victims of malpractice stand a slimmer chance of collecting damages, he said.

Other doctors are cutting back on high risk procedures or those, such as obstetrics, that tend to attract more lawsuits. Hitt said some doctors are leaving the state.

The Academy of Florida Trial Lawyers immediately labeled the recommendations "a charade" and called the task force "a pretense ... to rubber-stamp a $250,000 cap."

At a news conference, Bush and Hitt defended the recommendation for a cap on damages for pain and suffering, also known as noneconomic damages. They said it was modeled after one that is working in California.

"Their opposition to this relates more to their own pocketbooks than the pocketbooks of everyday Floridians," Bush said of the trial lawyers. "Let's not be surprised that they are fighting something that would limit their gigantic incomes."

Hitt said he reluctantly agreed to the cap after hearing evidence that reforms have worked to lower costs only in situations where damages for pain and suffering are capped.

"I feel a little like Winston Churchill when he said a democracy is the worst of all systems, except for all the others," Hitt added. "I think caps are a necessary evil."

But caps are not all Hitt wants.

The task force says the state needs to establish a patient safety authority that would require mandatory reports of all serious mistakes and voluntary reporting of "near misses" so the information can be analyzed by experts who would recommend ways to reduce them.

The state also should require doctors to use an electronic system to keep medical records and order medication, the report said. Many of the errors made in hospitals involve medication mistakes, and many of those are made because a doctor didn't write legibly or an order was misunderstood, Hitt noted.

The state also should improve the way it disciplines doctors, in part by having experts determine the "standard of care" required of doctors instead of leaving it to a state hearing officer who has no medical training, the report said.

The task force said the state needs to ease the standard of proof required before a doctor can be disciplined. In a civil trial a plaintiff must provide "the greater weight of evidence" instead of the tougher "clear and convincing proof" standard required in regulatory proceedings.

Hitt discounted the suggestion that the insurance industry's financial woes are tied to their losses in the stock market. He said insurers can invest no more than 15 percent of their income in the market.

"If the market was in good shape," Hitt said, "they would still be paying out more than they are taking in today."

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