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Malpractice bill heads to Bush

In their third special session on the issue, the state House and Senate approve the measure that would set limits on damages.

Published August 14, 2003

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TALLAHASSEE - After months of bickering, Florida legislators on Wednesday sent Gov. Jeb Bush a bill designed to rein in the high cost of medical malpractice insurance.

But while lawmakers congratulated each other, doctors and nearly every other interest group the legislation is intended to help said it won't work.

The complaints fell on deaf ears as lawmakers quickly passed the deal their leaders crafted last week during private negotiations. Bush is expected to sign the bill today.

House and Senate leaders declared victory Wednesday afternoon after they finished their third special special session on the issue. The House passed the bill 87-26 after the Senate approved it, 32-4.

The House and the governor had insisted for months that only a $250,000 cap on pain and suffering awards would stop spiraling malpractice rates. They wound up accepting caps far higher than that after the Senate refused to budge.

"When it's all said and done, in life as in politics, to your own self be true," said Senate President Jim King, R-Jacksonville. He said the bill "vindicates all of us."

Across the Capitol rotunda, that sentiment was echoed by House leaders.

"We gave some and we put our foot down on some," said Rep. Allan Bense, R-Panama City, a key negotiator.

House Speaker Johnnie Byrd, R-Plant City, promised to keep the issue alive.

"This is just a beginning and a commitment to patient safety," Byrd said.

Bush, who targeted fellow Republicans in the Senate for political retribution for opposing his malpractice proposal, declared himself pleased with the results.

"I think historians will look back and say, "Job well done'," Bush said. "I'm confident this will bring a reduction in insurance premiums."

Still, there's no guarantee. Rates will be frozen for six months while the state figures out what the new rates should be. Insurance companies can then challenge the conclusions.

For nearly a year, the Senate and House, backed respectively by legal and medical interests, battled over how to lower physicians' malpractice insurance rates. Some doctors, especially those in high-risk specialties like obstetrics and neurosurgery, have closed their doors or curbed their services under the weight of astronomical insurance rate increases.

The Florida Medical Association and the state's largest medical malpractice insurer, with whom the FMA has a financial relationship, said the only guaranteed way to bring insurance premiums down was to cap noneconomic damages in medical malpractice lawsuits at $250,000. Trial lawyers and consumer groups balked, saying such caps only hurt the elderly and others who don't qualify for economic damages such as lost wages.

The caps became the flashpoint for the entire debate. King initially refused to consider any cap, saying that would hurt only the victims of the most egregious cases of malpractice.

The compromise: pain and suffering will be capped at $500,000 for doctors in most cases and at $1-million for egregious cases where the malpractice results in death or a severe injury such as permanent vegetative state.

Hospitals and other health care facilities will see a $750,000 cap that can increase to $1.5-million in egregious cases.

Emergency room doctors, and those who consult on emergency cases, will have a much lower cap: $150,000, which can increase to $300,000 for severe malpractice.

"We talk of winning and losing, and I think the people of Florida have won," Byrd said.

Democrats in both chambers complained that the bill did little to reduce insurance rates and tried to include immediate rate rollbacks. They were defeated.

Rep. Dan Gelber, D-Miami Beach, said the bill won't freeze rates as its supporters claim.

"Maybe a chill, maybe a breeze, but certainly not a freeze," the South Florida lawyer said.

Sen. Steve Geller, D-Hallandale, complained that the bill, negotiated almost entirely in secret by House, Senate and Bush aides, was being ramrodded through the Legislature.

"The doctors are not supporting this bill. The lawyers are not supporting this bill. Consumer groups are not supporting this bill," Geller said.

FMA president Robert Cline, a Broward County thoracic surgeon who stopped seeing most patients this year to protest legislative inaction, wasn't happy with the bill but said he would give it a few months.

"What choice do we have?" Cline asked. He plans to return to work in the meantime.

Neal Roth, past president of the Florida Academy of Trial Lawyers, has predicted a court fight, saying a patient severely injured by malpractice will almost certainly challenge the law's constitutionality.

The bill is far more sweeping than the debate about caps. It also covers such things as patient safety and doctor discipline.

All sides agree that better information is needed about malpractice generally and about malpractice lawsuits specifically. Members of the Senate Judiciary Committee grew so frustrated by conflicting testimony that they put witnesses under oath.

Lawmakers have said they are committed to providing patients with more information. Before now, a lawsuit had been the only way some patients could find out what happened to them.

The bill requires hospitals and doctors to tell patients when they have been harmed, and the state will require doctors to report more information about incidents that hurt patients. Much of that information will be available online.

Another special session is possible in October to deal with parental notification for minors seeking abortions and other issues.

- Times staff writer Steve Bousquet contributed to this report.

[Last modified August 14, 2003, 01:32:32]

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