The medical malpractice bill proposed by Gov. Bushneeds improvement, and a four-day special sessionis not enough time to fix it.
Published June 4, 2003
No good can result from the forthcoming special session on the medical malpractice insurance crisis if Gov. Jeb Bush insists on holding the Legislature to only four days. That's hardly enough time to make a better bill out of the unsatisfactory one he proposed last week. But it would do for a session designed to fail, as some people suspect this one is.
"What they've cut ain't dried, if it's the bill they sent me," says Sen. Durrell Peaden, R-Crestview, a retired physician who has crafted much of the Senate's position on the issue.
Whatever the game, the Senate is the target. It's the only place in the Capitol where leaders dare to ask the right questions. The four-day timetable appears meant to pressure the Senate into swallowing a bad bill, as it did over worker's compensation session last week, for fear of being blamed for failure and for the escalating doctor strikes that would follow. The real fault, of course, would belong to those who had refused to negotiate.
There is still no sign of compromise on the part of the governor and the doctors over the $250,000 cap on noneconomic damages that the insurance lobby has sold to them as a magic bullet. The cap is arbitrary and puts an unreasonably low value on human life. Now there is evidence that it may do nothing for the doctors whom it's supposed to help.
That comes in the form of an economic analysis asserting that such caps save money for insurance companies but not for doctors. The study, by Weiss Ratings Inc., a Palm Beach Gardens firm that has no dog in the fight, said that insurance premiums have been rising faster in states with caps than in states without them.
That's one issue, but hardly the only one, that waits to be explored during a five-hour informal hearing with which Senate President Jim King tentatively plans to open the special session June 16. Given the gravity and complexity of the issue, five days would not be too many.
The governor, for example, wrote to legislators to tout what he called a formal commitment by First Professionals Insurance Co. Inc., the state's largest malpractice underwriter, to cut premiums "by 20 percent" if the Legislature passes the bill exactly as Bush proposed it. What the company actually said, however, is that it would reduce its rates "by an overall average of 20 percent . . . (emphasis added)." Legislators have the two letters and should pay close attention to the difference.
So should obstetricians, neurosurgeons and the other high-risk, high-premium specialists who might not get any relief at all. The same loophole appears in the provision of the governor's bill that ostensibly requires a reduction "by an aggregate factor of 20 percent." Moreover, a company could avoid even that simply by saying that it couldn't afford it, and the burden would fall on state regulators to prove that it could. To call this a rollback is, to put it kindly, disingenuous.
Bush's bill compares poorly in at least four major respects to malpractice bills that the Senate and House passed separately during the regular session:
It would override a Florida Supreme Court decision that said HMOs are potentially liable if they influence medical decisions in ways that harm patients. That ruling offers enormous protection for doctors as well as their patients, and only the insurance industry has anything to gain from repealing it. Florida's doctors ought to be wondering why their lobbyists have signed off on this. No legislative committee has even heard testimony on this issue, and it should not even be considered during the special session.
Both houses had proposed a reinsurance fund that would have offered doctors an affordable alternative to commercial insurance. Peaden considered that "the most important thing." It's not in Bush's bill. Again, only the insurance industry stands to benefit from his decision.
The Senate bill created a statewide Patient Safety Authority. Bush's bill, like the House during the regular session, calls only for a study.
Bush's bill would put the burden on doctors to decide for themselves whether to settle malpractice claims, effectively relieving insurance companies of their financial responsibility to negotiate in good faith. Doctors have as much to lose as patients if this becomes the law because they would be exposed to many more excess judgments.
Sen. Rod Smith, D-Gainesville, calls Bush's proposal "basically an insurance company's bill of rights." Yet the governor has threatened to call special sessions all summer if that's what it takes to get a malpractice bill. If by that he means only his bill, the Senate had better prepare to wait him out.
