Florida Pro-Provider Laws

It has been said that there is nothing new under the sun, but that is not so in the Sunshine State, where efforts to enact medical malpractice “reform” resemble a religious crusade.

Against the backdrop of incessant tort reform spanning over 20 years that has severely impaired a victim's ability to recover damages, laws passed in the last three years have rendered it difficult for plaintiffs' attorneys to accept any case that does not have elements of overwhelming liability, extensive damages and insurance coverage. However, the state and federal courts may now be pushing back.

Damage caps, presuit screening requirements, the abolition of joint and several liability, the elimination of medical malpractice wrongful death actions for unmarried adults, penalties for agreeing to or not agreeing to arbitrate and a shoddy financial responsibility law that allows doctors to practice without insurance were already in existence when, in 2011, the following laws were enacted: Further damage caps on Medicaid victims; out-of-state expert certification and discipline; private medical school immunity; the lifting of prohibitions against physicians vetoing their insurance carriers' settlement decisions; the inadmissibility of insurers' reimbursement policies; the inadmissibility of evidence of a violation of federal standards; and mandatory authorizations allowing defendants to obtain a patient's medical records during the presuit screening process.

Same Expertise

The year 2012 found the legislature preoccupied with redistricting and reconstituting the Supreme Court of Florida in an effort to strip it of its more liberal wing. However, in 2013, two very significant medical malpractice constrictions were passed. Initially, a law was passed that required a “same” expert as the defendant to be used for a pre-suit affidavit and at trial. No longer could a “similar” expert be utilized. For example, according to the legislative sponsors of the law, neurosurgeons trained in the same spinal surgery fellowship programs as orthopedic spine surgeons would be prohibited from testifying against the latter. However, the law does not define what a “same specialist” is.

Ex-Parte Communications

Secondly, the pre-suit authorization for the release of a victim's medical records was amended to include permission for the defendant to conduct ex-parte communications with the victim's healthcare providers. Contemporaneous with that law's effective date, five lawsuits were filed in state and federal venues. The federal challenge was premised on the law's incompatibility with HIPAA and the state challenges argued that several of Florida's constitutional provisions were being violated, among them, the right to privacy and the court's exclusive dominion over procedural rules. Presently, the Northern District of Florida ruled that the law conflicted with the privacy rights protected by HIPAA. That case, now on appeal to the Eleventh Circuit, is being briefed by the appellees. This law is almost identical to that passed in Texas, which did survive a state court challenge. A motion for summary judgment is pending in one of the state court cases.

Damage Caps

Since it was signed into law in 2003 by Governor Jeb Bush, the cap on damages escaped legal challenges in great part due to insurance companies' reluctance to place the issue before the courts for adjudication. Jury awards in excess of the caps often settled for amounts that exceeded the caps. However, in the case of Evette McCall v. United States of America, 642 F. 3d 944 (11th Cir. 2011), having ruled that the caps did not violate federal constitutional rights, the Eleventh Circuit asked the Florida Supreme Court to decide whether the caps violate any of Florida's constitutional rights, including its provisions promoting access to the courts, equal protection and separation of powers. Unlike insurance companies, which feared such a decision and which were content to deal with each case as it arose, the United States refused to pay a damage award in excess of the caps, leading to one of the most anxiously awaited decisions in the history of Florida's jurisprudence.

The McCall case, SC11-1148, was argued to the Supreme Court of Florida on Feb. 9, 2012. Two years later, no decision has been rendered, and rumors run rampant as every attorney has heard tell of one of the justices' nearest and dearest who “knows” how and when the case will be decided. Notwithstanding, every passing week with no decision proves the rumors false and suggests a monumental struggle among the Florida justices. Further, those who felt that Florida's caps were safe are as concerned as a defense attorney who has been waiting more than three days for a verdict.

Florida's constitution gives its Supreme Court the exclusive authority to enact rules of procedure. Because some rules of evidence are procedural, or a blend of procedural and substantive law, the court reserves the right to disregard evidentiary statutes which contain undesirable procedural components. In what may be a sign of how it may rule in McCall, the Florida Supreme Court recently refused to adopt the expert-certification law as a rule of evidence. In its decision, SC13-98, decided on Dec. 12, 2013, the court declined to accept The Florida Bar Code and Rules of Evidence Committee's recommendation that the court adopt the expert certification statute (Section 766.102(12), Florida Statutes) as a rule of evidence. In doing so, the court said that requiring out-of-state experts to be certified would “have a chilling effect on the ability to obtain expert witnesses, and is prejudicial to the administration of justice.”

Although the expert certification law was not adopted, the court did not declare it unconstitutional ' and it is still the law. But the court's refusal to adopt the law as a rule suggests that future judicial challenges will likely find a sympathetic ear in Tallahassee.

More to Come?

While the courts may be pushing back, the medical malpractice industrial complex continues to find legislative sponsors. Proposals that have failed to gain traction in the past will undoubtedly be recycled in this and future legislative sessions, including sovereign immunity for emergency department treatment; a heightened burden of proof in cases where it is alleged that supplemental diagnostic testing should have been used; and the elimination of vicarious claims against hospitals for non-employee, physician neglect. Florida's medical malpractice attorneys on both sides of the bar look to the courts to hold the line for victims and their families.

Kenneth J. Sobel , a member of this newsletter's Board of Editors, is an attorney with Freedland Harwin, PL, in Fort Lauderdale, FL.

It has been said that there is nothing new under the sun, but that is not so in the Sunshine State, where efforts to enact medical malpractice “reform” resemble a religious crusade.

Against the backdrop of incessant tort reform spanning over 20 years that has severely impaired a victim's ability to recover damages, laws passed in the last three years have rendered it difficult for plaintiffs' attorneys to accept any case that does not have elements of overwhelming liability, extensive damages and insurance coverage. However, the state and federal courts may now be pushing back.

Damage caps, presuit screening requirements, the abolition of joint and several liability, the elimination of medical malpractice wrongful death actions for unmarried adults, penalties for agreeing to or not agreeing to arbitrate and a shoddy financial responsibility law that allows doctors to practice without insurance were already in existence when, in 2011, the following laws were enacted: Further damage caps on Medicaid victims; out-of-state expert certification and discipline; private medical school immunity; the lifting of prohibitions against physicians vetoing their insurance carriers' settlement decisions; the inadmissibility of insurers' reimbursement policies; the inadmissibility of evidence of a violation of federal standards; and mandatory authorizations allowing defendants to obtain a patient's medical records during the presuit screening process.

Same Expertise

The year 2012 found the legislature preoccupied with redistricting and reconstituting the Supreme Court of Florida in an effort to strip it of its more liberal wing. However, in 2013, two very significant medical malpractice constrictions were passed. Initially, a law was passed that required a “same” expert as the defendant to be used for a pre-suit affidavit and at trial. No longer could a “similar” expert be utilized. For example, according to the legislative sponsors of the law, neurosurgeons trained in the same spinal surgery fellowship programs as orthopedic spine surgeons would be prohibited from testifying against the latter. However, the law does not define what a “same specialist” is.

Ex-Parte Communications

Secondly, the pre-suit authorization for the release of a victim's medical records was amended to include permission for the defendant to conduct ex-parte communications with the victim's healthcare providers. Contemporaneous with that law's effective date, five lawsuits were filed in state and federal venues. The federal challenge was premised on the law's incompatibility with HIPAA and the state challenges argued that several of Florida's constitutional provisions were being violated, among them, the right to privacy and the court's exclusive dominion over procedural rules. Presently, the Northern District of Florida ruled that the law conflicted with the privacy rights protected by HIPAA. That case, now on appeal to the Eleventh Circuit, is being briefed by the appellees. This law is almost identical to that passed in Texas, which did survive a state court challenge. A motion for summary judgment is pending in one of the state court cases.

Damage Caps

Since it was signed into law in 2003 by Governor Jeb Bush, the cap on damages escaped legal challenges in great part due to insurance companies' reluctance to place the issue before the courts for adjudication. Jury awards in excess of the caps often settled for amounts that exceeded the caps. However, in the case of Evette McCall v. United States of America , 642 F. 3d 944 (11th Cir. 2011), having ruled that the caps did not violate federal constitutional rights, the Eleventh Circuit asked the Florida Supreme Court to decide whether the caps violate any of Florida's constitutional rights, including its provisions promoting access to the courts, equal protection and separation of powers. Unlike insurance companies, which feared such a decision and which were content to deal with each case as it arose, the United States refused to pay a damage award in excess of the caps, leading to one of the most anxiously awaited decisions in the history of Florida's jurisprudence.

The McCall case, SC11-1148, was argued to the Supreme Court of Florida on Feb. 9, 2012. Two years later, no decision has been rendered, and rumors run rampant as every attorney has heard tell of one of the justices' nearest and dearest who “knows” how and when the case will be decided. Notwithstanding, every passing week with no decision proves the rumors false and suggests a monumental struggle among the Florida justices. Further, those who felt that Florida's caps were safe are as concerned as a defense attorney who has been waiting more than three days for a verdict.

Florida's constitution gives its Supreme Court the exclusive authority to enact rules of procedure. Because some rules of evidence are procedural, or a blend of procedural and substantive law, the court reserves the right to disregard evidentiary statutes which contain undesirable procedural components. In what may be a sign of how it may rule in McCall, the Florida Supreme Court recently refused to adopt the expert-certification law as a rule of evidence. In its decision, SC13-98, decided on Dec. 12, 2013, the court declined to accept The Florida Bar Code and Rules of Evidence Committee's recommendation that the court adopt the expert certification statute (Section 766.102(12), Florida Statutes) as a rule of evidence. In doing so, the court said that requiring out-of-state experts to be certified would “have a chilling effect on the ability to obtain expert witnesses, and is prejudicial to the administration of justice.”

Although the expert certification law was not adopted, the court did not declare it unconstitutional ' and it is still the law. But the court's refusal to adopt the law as a rule suggests that future judicial challenges will likely find a sympathetic ear in Tallahassee.

More to Come?

While the courts may be pushing back, the medical malpractice industrial complex continues to find legislative sponsors. Proposals that have failed to gain traction in the past will undoubtedly be recycled in this and future legislative sessions, including sovereign immunity for emergency department treatment; a heightened burden of proof in cases where it is alleged that supplemental diagnostic testing should have been used; and the elimination of vicarious claims against hospitals for non-employee, physician neglect. Florida's medical malpractice attorneys on both sides of the bar look to the courts to hold the line for victims and their families.

Kenneth J. Sobel , a member of this newsletter's Board of Editors, is an attorney with Freedland Harwin, PL, in Fort Lauderdale, FL.