COMMENTARY

Could This Tort Reform Proposal Work?; Where Caps Stand; More

Wayne J. Guglielmo, MA

Disclosures

April 24, 2014

In This Article

Snatching Victory From the Jaws of Defeat?

It's "never say die" in Florida, according to a March 23 article posted on the Website of the Sun Sentinel.[1]

Three days after the state's high court struck down a 2003 cap on awards for pain and suffering, a major component of noneconomic damages in medical liability suits, Rep Jason Brodeur (R, Sanford) outlined his bill for radically upending the current adversarial system for resolving medical liability claims.

Addressing the Florida House Judiciary Committee, Brodeur proposed replacing this system with one modeled on worker's compensation. Under the new system, med-mal claims would be heard by a panel of physicians authorized to decide whether "avoidable medical harm" had occurred. If it had, the injured patient would be compensated on the basis of a preestablished schedule, with more serious and permanent injuries garnering higher payouts than less serious and more transitory ones.

"Wholesale reform is what needs to happen; we need to quit nibbling at the edges, which is what we've been doing for the last 12 years," Brodeur told his fellow lawmakers. "Let's admit that the system is violently broken."

A key benefit of his proposal, he said, is that it would reduce litigation-related costs and thereby reduce the state's insurance tab. By how much? An expert testifying on behalf of the Brodeur bill estimated that in the 10 years following its effective date, the new system could save Florida employers as much as $66 billion in health insurance costs.

But not everyone buys this arithmetic -- or Brodeur's proposal.

A liability system based on the worker's comp model would actually cause claims to rise by as much as 500% annually, explained Susan Forray of Milliman, an international actuarial firm. In dollar terms, she said, this would increase the state's annual cost of medical liability -- $600 million currently -- by between $340 million and $1.9 billion.

According to Jeff Scott, legal counsel of the Florida Medical Association, which opposes the bill, a revised liability system would cause an "explosion of claims" because of a more expansive view of medical errors -- one that lowers the bar from the higher standard for negligence.

Also opposing the Brodeur proposal are the Florida Chamber of Commerce, the Florida Insurance Council, the Florida Justice Reform Institute, and the Florida Justice Association. The latter 2 groups, it's worth noting, are on opposite sides of the tort reform debate: The Florida Justice Reform Institute was formed by the state chamber of commerce and pushes measures to lower litigation costs for Florida businesses, whereas the Florida Justice Association is the renamed trade group for the state's trial lawyers.

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