Today legislators could finally enact a medical malpractice bill that includes a compromise on noneconomic award ceilings and new conditions for the insurance industry.
Published August 13, 2003
The Florida Legislature is poised today to enact - finally - a medical malpractice bill that might seem to fit the popular definition of a compromise as something that makes no one happy. Senate negotiators made a huge concession by agreeing to arbitrary ceilings on some lawsuit damages, yet the doctors sound as aggrieved as the trial lawyers because they didn't get the absurdly low caps that they and Gov. Jeb Bush had demanded.
But not everybody is frowning. To figure out who the big winners are, listen to who's not complaining. The sound of silence, as eloquent as any thunderclap, identifies the insurance lobby as, once again, king of the hill.
What the insurers wanted most, and got, was more time in which to decide whether to settle malpractice suits before becoming potentially liable under the law of bad faith for judgments larger than their policy limits. What they wanted least, and did not get, were some of the sharp-toothed regulatory reforms that intrigued senators when they heard testimony about California's Proposition 103. In California, for example, policyholders have the right to intervene before a new rate is imposed. Not here.
Nor is there to be any mandatory rate rollback, for fear that it might be unconstitutional. The companies also managed to eviscerate the Florida Supreme Court's recent decision that health maintenance organizations could be liable under some circumstances for malpractice by the doctors to whom they refer patients. In the few remaining instances, where the provider would actually be an HMO employee, the HMO would benefit like a hospital from the new caps on noneconomic damages.
That said, however, the limits are more reasonable than they might have been had the Senate not resisted the governor's steamroller for $250,000 per case. Thanks to the Senate, the bill instead sets noneconomic damage ceilings of $500,000 for doctors and $750,000 for other providers; both limits could double in cases of death or serious permanent injury.
There are also some important new conditions on the insurance industry, notably including requirements to either roll back malpractice rates or justify not doing so, to refile rates annually under oath, and to adjust them according to each policyholder's claims experience.
Most important, perhaps, are the new contributions to patient safety. Every hospital must have a plan. Every college must teach patient safety. And the medical regulatory boards will have the power they said they needed to set and enforce appropriate standards for patient care. Florida's discipline of bad doctors has been little more than a bad joke. There's no excuse for that any longer.
It is unknown, of course, to what extent - if any - the compromise will actually affect the insurance rates that many doctors say are driving them out of business. The insurance companies can be expected to try to hold back until the Supreme Court, which overturned damage caps in 1986, has the occasion to decide whether to do so again. Thus the Legislature's oversight responsibility is only beginning. As Sen. Tom Lee, a key negotiator, told Republican colleagues Tuesday, they should prepare to "reform the system" next session if they see the insurance companies "gaming the system."
A final point: The compromise could have been achieved months ago if the doctors and the governor had not insisted that the $250,000 cap was non-negotiable. That's simply not the way that a healthy democracy works, and Floridians can thank the Senate that it didn't work that way this time.
