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Florida could use California-style 'communism'

By MARTIN DYCKMAN
Published August 17, 2003

TALLAHASSEE - Sen. Jim Sebesta, R-St. Petersburg, astonished nearly everyone but himself when, after hearing California's famous Proposition 103 explained to a Senate committee, he exclaimed: "That's communism!"

Smiling in silent assent were the insurance lobbyists. Nothing holds so much terror for them as the possibility that Florida might do what California's voters did in 1988. They fear it like vampires dread the dawn.

Ralph Nader has called California's "the strongest proconsumer insurance regulations in the nation." Auto insurance premium rates fell in California even as they were rising nationally. So did premiums for medical malpractice insurance, which is why some Florida legislators wanted to know more about California. But as this curiosity did not fit the script dictated by Gov. Jeb Bush, the medical lobbies and the puppetmasters in the insurance racket, systemic insurance reforms were conspicuously lacking from the 170-page "reform" he signed last week.

The company line: California's lower malpractice premiums owe entirely to that state's $250,000 limit on noneconomic damages. Proposition 103 is only a coincidence; it was, rather, the California Supreme Court's eventual decision to uphold the damage cap that sent malpractice premiums downward.

Inconvenient for that analysis, however, are figures showing that California malpractice rates rose sharply after the court affirmed the caps and turned downward only after Proposition 103 three years later.

This was in the admirable but shamefully overlooked analysis submitted to the Legislature by the University of North Florida's Center for Public Policy and Leadership, which had no dog in the fight other than a perverse belief that public policy ought to be driven by proof, not propaganda.

To even the senators who voted for the compromise last week, the most frustrating aspects were the dearth of insurance reform and the House's insistence on using its "findings" as the truth of the matters behind the legislation.

The "findings" will be important when the Supreme Court eventually decides whether the Legislature was justified in overriding the constitutional guarantee that "The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay."

At least eight of the findings, including the existence "of a medical malpractice insurance crisis of unprecedented magnitude," were either uncorroborated or contradicted by the sworn testimony the Senate took. It would be entertaining to watch House members explain under oath how they came to such conclusions from the unsworn testimony (largely anecdotal and hyperbolic) on which they relied. Let's hope there's a judge with enough guts.

In his closing speech, Sen. Tom Lee, R-Brandon, the chief negotiator, could as easily have been arguing against passage. Conceding the Senate's "frustration or concern over the regulatory system," Lee acknowledged the likelihood that the Legislature hasn't seen the last of doctors driven to despair by outlandish premiums. ". . . Before we take up medical malpractice reform again," Lee said, "there are a number of us who will be insisting on insurance reform."

As president-designate, Jim King's certain successor in November 2004, Lee is the right person to insist on it. Big lobbies don't awe him. He voted against both telephone rate hike bills - the one that got vetoed and the one that didn't. Earlier, Lee more or less singlehandedly derailed electric utility deregulation and tamed the beer distributors' lobby to allow the sale of some 2,000 brands that come in odd sizes. Insurance, however, is the biggest and by far the meanest of all the lobbies. It is the only industry that is totally exempt from federal regulation and federal antitrust laws. It is exempt from Florida's state antitrust laws as well; the Senate threatened at one time to use the malpractice bill to change that but retreated in the face of a certain challenge over the constitutional single-subject rule.

It's difficult at the moment to think of any House leaders who would care to help the Senate take on big insurance. It's also difficult, however, to understand why the rest of Florida's business community, like the doctors, are willing to be taken for such a ride. The high price of insurance may be the one grievance that business has in common with Joe and Jane Lunchbucket, and if we could ever get together Florida, too, could have a Proposition 103.

As to that, here are some key benefits that Californians, but not Floridians, enjoy: Prior approval of all rates. Limits on profits keyed to higher profits for efficient companies. Political donations can't be passed on through premiums. Citizens may intervene to challenge rates at any time, before or after they they go into effect, and can contest them in the courts. State antitrust regulation.

Communism? Baloney! It's common sense.

[Last modified August 17, 2003, 01:32:33]


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