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TALLAHASSEE - The many months of wrangling over medical malpractice have not gone entirely to waste.
The House and Senate have come to terms on some 50 side issues, including a long overdue crackdown on bad doctors, that would be law by now if Jeb Bush weren't so far out on a limb with the $250,000 cap he promised the doctors. Seldom if ever has policy been so corrupted by symbolism.
But even if nothing else comes of it, Florida will have learned how not to organize a study commission. As to that, there really ought to be a law.
A study commission, or task force, as it is sometimes called, is Tallahassee's shopworn response to any policy issue that is perceived as even moderately difficult to solve. Difficulty is usually defined by the extent to which "stakeholders" - a euphemism for special interests and their lobbyists - disagree on what needs to be done.
Sometimes the study commission is created as a pretext for doing nothing else, or at least not too quickly.
At other times, it is set up in the hope of providing political cover for what someone wants to do. That was John McKay's strategy a few years ago when, as incoming Senate president, he wanted to set a stage for tax reform. It was Bush's strategy for medical malpractice.
McKay's plan came to grief because he was the only one of the appointing authorities who actually believed in tax reform. Study panelists chosen by Bush and the House speaker agreed, unsurprisingly, that Florida needed not fewer tax exemptions but more.
For his malpractice task force, Bush chose members with no equivalent bias. But everything else about it constituted a case study in how not to be objective. He gave the task force only four months to organize, hold hearings and agree on what to do about an infinitely complicated and controversial issue. This process played out against the backdrop of an election campaign in which Bush advocated a limitation on noneconomic damages - the most divisive issue - and was caught saying that he wanted to "whack" the trial lawyers. The task force, given no budget or independent staff, depended entirely on the resources of Bush's Department of Health, whose general counsel, William W. Large, became its staff director.
Poor Large. Could anyone doubt that his head would have rolled had the task force not recommended the $250,000 cap that Bush expressly told the task force he wanted?
The rest of what went wrong came out in Large's interrogation under oath by the Senate Judiciary Committee on July 15. For the entire two-day transcript, see the Senate's Web site, www.flsenate.gov and follow the links to "committees" and "judiciary." It is recommended reading.
Large testified that the task force chose a $250,000 cap because "there was only one laboratory experiment out there that proved that indeed $250,000 would work, and that was the California model." But there is another part to that model, as senators already knew: California's very strict insurance reforms, adopted 15 years ago in Proposition 103. It makes Florida's law look toothless. Bush's task force proposed no equivalent reforms.
The task force had no subpoena power to go after insurance industry documents. But it could have put its witnesses under oath, as the trial lawyers advocated. It did not.
With only a skeleton staff, it relied heavily on "stakeholders," as Large described them, to draft critical sections of the report. In large part, these were lawyers for the insurance companies that had dogs in the fight. For supporting economic data, the task force relied on a disputed study that had been financed by the hospitals.
A State Farm lawyer, for example, wrote the three-page "genesis" of a section proposing changes in Florida's bad-faith law, which is what the insurance industry wants most, to the potential disadvantage of its physician policyholders. State Farm writes no medical malpractice insurance but is keenly interested in precedents for changing the law, which makes insurers liable for entire judgments if a court decides they should have offered to settle for policy limits. All homeowners and motorists could be impacted by any broader changes inspired by the medical malpractice outcome.
"Did it trouble you or any members of the task force," asked Sen. Dave Aronberg, D-West Palm Beach, "that a lot of this material in here was drafted by people with interest in this one side? . . ."
"No," Large replied. "Every issue that came up was stakeholder driven. In other words, we're here today because stakeholders are concerned about this issue, and they've raised that issue. So the task force to some extent acts like a judge."
That is precisely what a task force should not do. It should have its own staff, investigators, economists, actuaries and attorneys. It should develop its own facts and findings. It should be more, much more, than an echo chamber for whatever "stakeholders" have the loudest voice or the most influence at court.