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Legislators can't make good laws without asking the right questions. Many of the right questions were being asked in Tallahassee this week as the Legislature returned to the medical malpractice controversy, but there were more good questions than good answers.
Among those still begging for a satisfactory answer: Why doesn't Florida regulate the insurance industry as strictly as California does? Why are Florida's doctors letting the insurance industry, whose interests are definitely not the same as theirs, dictate their lobbying agenda? Does the Florida Medical Association's $500,000 "endorsement fee" from the largest malpractice underwriter cloud its judgment? Where is the proof that an inflexible $250,000 limit on noneconomic damages - or any limit, for that matter - would provide rate relief to physicians and hospitals?
The problem is, after all, primarily an insurance crisis. There isn't a shred of evidence that Florida plaintiffs' lawyers are any more aggressive, or physicians and hospitals less prudent, than they used to be. Though medical discipline could and should be improved, as everyone seems to agree that it will be, the immediate problem is that Florida malpractice insurance premiums have been surging for three years and only nine companies are still writing new business. The doctors have a real grievance. But neither they nor the insurance lobbyists have made a persuasive case that it can be helped by restricting the authority of juries to award compensation to people who have been wrongfully injured. The experience in California and other states that have caps is too contradictory to prove anything of the sort.
Even so, the Senate Committee on Health, Aging and Long-Term Care approved a noneconomic damages ceiling in a split vote Tuesday. It's not the flat $250,000 per case that the doctors and the insurance lobby demand, but rather a cap of $500,000 per defendant, which a jury could waive in cases resulting in certain "catastrophic" injuries. This is better, but Senate leaders are clearly responding more to political pressure than to any public evidence that caps alone will accomplish anything. The full Senate, which will vote on the issue today, should think twice about conceding so much and should not give an inch more.
What the insurance industry wants even more than caps is relief from the Florida bad-faith law that is supposed to encourage timely and reasonable settlements. At present, the law makes an insurance company liable for the full judgment, which can be millions of dollars beyond policy limits, if it didn't negotiate in good faith. The Senate committee's bill would allow an insurer to stall for nearly a year after a case is set for trial before offering to pay policy limits. This greatly increases the risk that an angry plaintiff will insist on taking the case to a jury that could leave the doctor or hospital on the hook for a great deal more than the insurance coverage.
The insurance companies are perfectly candid about it: There will be fewer settlements if this change is made. This cannot be in the best interests of the doctors; even so, they are going along with it because they are fixated on the $250,000 cap. It's not just about money. It will discourage lawyers from accepting malpractice cases, as California's experience does demonstrate, and the doctors are taking their conflict with lawyers very personally. But patients will be the ultimate victims of this blood feud.
Tom Lee, the Senate's rules chairman and likely next president, is proposing to sunset three of the bill's most controversial features: the cap, the bad-faith changes and the pre-suit screening panels that many doctors want but the insurance companies and the trial lawyers both oppose. Lee has a point; either these provisions prove their worth, or they go away. How could anyone reasonably object?
Patients will be the ultimate victims of this blood feud.