Florida House seeks to revive malpractice caps

By Christine Sexton, The News Service of Florida

TALLAHASSEE, Fla. - A Florida House panel Wednesday backed a proposal that would cap damages in medical-malpractice cases and, according to a sponsor, send a message to the state’s highest court.

“This … is clearly the Legislature saying, ‘Hey, the Supreme Court of Florida, you need to respect the separation of powers,’ ” Rep. Tommy Gregory, R-Sarasota, said while describing the bill to the House Civil Justice Subcommittee. “We are telling the court, ‘You decided these cases contrary to our intent.’ ”

The proposal (PCB CJS 19-02) would reinstate caps on noneconomic --- commonly known as “pain and suffering” --- damages in medical malpractice cases that the Legislature initially approved in 2003. A sharply divided Supreme Court in 2017 found the damage limits unconstitutional.

The bill also would put into law a finding that the Supreme Court rulings were “decided contrary to legislative intent and existing case law interpreting the equal protection clauses of the state and federal constitutions.”

Under the 2003 law, which was approved after a fierce political fight, damages were capped at different amounts, depending on factors such as the numbers of claimants in lawsuits and the types of defendants. For example, part of the law included $500,000 and $1 million damage caps for physicians, with lower amounts when cases involved emergency care.

The approval Wednesday was the second time in as many weeks that the Civil Justice Subcommittee supported placing caps on jury awards. The panel last week agreed to cap at $1 million the amount of damages for pain and suffering that can be awarded in personal-injury or wrongful-death lawsuits not stemming from medical malpractice.

Some lawmakers Wednesday supported a proposal by Rep. Amy Mercado, D-Orlando, that would have eliminated a legal restriction that prevents certain adult children and some parents of adult children from recovering damages for wrongful deaths stemming from medical negligence. The amendment was supported by the Florida Justice Association, a plaintiffs’ attorneys group that argued current law devalues human life and protects hospitals and physicians.

Though he supported reinstating the caps on damages for medical malpractice, Rep. Mike Beltran, R-Lithia, also supported Mercado’s amendment.

He said that other changes in the bill should result in lower medical-malpractice insurance premiums for health providers. Eliminating the restriction on wrongful death lawsuits for adult children and parents of adult children, Beltran said, was balanced.

“The purpose of medical malpractice is to incentivize doctors to practice carefully and then to provide compensation when they don’t. By allowing this hole in the malpractice law where these adults aren’t getting compensated if they die, that doesn’t serve that purpose,” he said.

But insurance lobbyist Mark Delegal said allowing adult children and parents of adult children to sue for medical negligence would increase costs, the exact opposite goal of the bill.

“This amendment is a cost increaser,” Delegal said. “I can’t say enough bad about this amendment.”

Ultimately, the amendment failed on a voice vote.

Another Mercado amendment would have eliminated part of the bill addressing “phantom costs” and letters of protection. If that part of the bill becomes law, it also would lower the amount that injured patients could recover in lawsuits.

“Phantom” costs are the difference between what health-care providers charge for services and what they agree to accept for payment. Letters of protection are issued by law firms and can contain “phantom” costs. To combat the increasing use of letters of protection, the proposed legislation would prevent juries from considering what health-care providers charge for services when considering damages in lawsuits. Instead, they only would be able to consider the amounts that hospitals and doctors agree to accept from insurance companies to settle bills.

The committee also beat back an amendment that would have deleted from the bill the findings that the court erred in its 2017 opinion in the case of North Broward Hospital District v. Kalitan. That 4-3 decision was an affirmation of a 2014 ruling known as McCall v. United States.

After taking office in January, Gov. Ron DeSantis appointed three new justices --- Robert Luck, Barbara Lagoa and Carlos Muniz --- who are expected to make the Supreme Court more conservative than it has been in the past. The appointments came after longtime members of a liberal bloc on the court, justices Barbara Pariente, R. Fred Lewis and Peggy Quince, reached a mandatory retirement age.

News Service of Florida