http://www.palmbeachcivic.org/news/polit/fl_leg/030716_med-mal_pbpost.html

Compromise key now for malpractice reform

By Jim Ash, Palm Beach Post Capital Bureau
Wednesday, July 16, 2003
 

TALLAHASSEE -- After six months of scorching debate and agonizing gridlock, the solution to Florida's medical malpractice insurance problem hinges on a political deal that would allow the state's three most powerful Republicans to save face.

"I'm looking for a way that will give him cover and I assume he's looking for a way that will do the same for me," Senate President Jim King, R-Jacksonville, said Tuesday, referring to what he said was a final standoff with Gov. Jeb Bush. House Speaker Johnnie Byrd is the third player in the deal.

Senate Rules Chairman Tom Lee, who is handling most of the negotiations with the House, said the House has tentatively agreed to adopt the Senate numbers on capping non-economic damages in medical malpractice lawsuits, but that the two sides still need to modify that to find something acceptable to Bush.

"They won't pass a bill that the governor will veto," said Lee, R-Bradenton, referring to the House. "He's not going to approve it because he's so far out on a limb with $250,000."

Caps on the amount of non-economic damages, such as those for pain and suffering, that a jury can award injured patients in a lawsuit stand at the center of the medical malpractice debate. Insurance companies have long insisted that it's the only way to bring "certainty" to the market, and Bush had pushed long and hard for a strict $250,000 limit.

The Senate has proposed variations on a higher limit, but has been just as adamant that the cap can be no lower than $500,000 for all doctors involved in a case, with some exceptions for catastrophic damages that would raise the limit to $2 million for doctors, plus more for other medical entities, such as hospitals, involved in a case.

"I'm trying to find things that get me my $500,000 and get (Bush) his $250,000," King said, so that both could claim victory in what has turned into one of the most divisive intra-Republican battles in the state in years.

He said he hoped Bush might agree to a scheme that would extend the $250,000 cap protection to emergency rooms, trauma centers and doctors in the highest risk categories, such as neurosurgeons and obstetricians, in exchange for allowing a $500,000 cap for doctors who are in specialties that are less frequently targeted by lawsuits.

Bush spokeswoman Jill Bratina denied that the governor has become the stumbling block.

"If there is a deal, it has to be real and it has to be meaningful," she said.

Nicole deLara, a spokeswoman for Byrd, R-Plant City, also said no deal had been reached, but hinted that one might be coming soon.

"We're actively negotiating with the Senate, and the governor's participating as well, and we're hopeful we're going to get it done by Friday," she said.

"By Friday," is the operative phrase, however, because the clock expires at midnight tonight on the second special session of the year that Bush has called to deal exclusively with medical malpractice.

While the legislature is technically in session, most members were back in their districts Tuesday while a Senate committee continued to take sworn testimony from all sides in the debate and a handful of powerful committee chairmen continued to negotiate. There is no way to call all the members back to Tallahassee and vote on a deal before midnight. Once lawmakers return, it will take at least a day of floor debate before they can take a final vote on a compromise bill.

King said he was hoping that Bush on Tuesday would extend the deadline to midnight Friday. The House and Senate can extend the session with a two-thirds vote in each chamber, but King said he and Byrd were reluctant to call the members back without a compromise in hand.

"We don't want to spend the money," King said.

But Bush has yet to decide whether there is enough of an agreement to consider extending the session by executive order, Bratina said.

If lawmakers have no deal by late this afternoon, there likely will be no resolution this week, King said. In that case, Bush has vowed to keep lawmakers tied up in special sessions all summer.

Testimony continues

Even as the negotiations were going on Tuesday, the Senate Judiciary Committee continued to take sworn testimony from interest groups, and the committee's members didn't appear convinced of the severity of the situation that has led to the push for lawsuit reform.

Under withering questioning by the committee Monday, a key insurance executive and the head of the state's largest medical association acknowledged that there is no hard evidence of a recent explosion in medical malpractice claims or outrageous jury awards.

On Tuesday, however, some witnesses began fighting back, one with a new definition for frivolous lawsuits.

"We found there was an increase in the frequency of cases, we found there was an increase in the severity of cases," said William Large, who headed a task force appointed by Bush last year to study the situation.

Large said he declined to use the phrase "frivolous lawsuits," and preferred instead to call them "mal-occurrences with an absence of deviation from the accepted standards of care."

Large said the task force, which proposed the $250,000 cap, relied on the most definitive study available of the lawsuit problem. However, he acknowledged that the study was sponsored by the Florida Hospital Association, which in turn used its own estimates after it found that records from the state Department of Insurance were incomplete.

The judiciary committee also heard testimony from a former case analyst with St. Paul Insurance Companies, one of the largest medical malpractice insurers in the nation but one which no longer writes policies in Florida.

Cindy Harris, who now works for a law firm in Orlando, told the committee if legislators change the "bad faith" laws, it would eliminate the incentive for insurance companies to settle promptly.

In Florida, doctors and hospitals can sue their insurance company for bad faith when they are faced with a jury verdict against them that exceeds their insurance policy limits. Injured patients may also sue the doctor or hospital's insurance company when the doctor can't pay the jury award. In both types of situations, the plaintiffs must prove that the insurer could have and should have settled the case prior to it going to the jury.

Insurance companies say that too often they don't have enough information to evaluate a case to determine whether to settle it and, as a result, the threat of lawsuits forces them to settle many cases that shouldn't be settled. So they've asked for limits on how and when doctors, hospitals and patients can sue for "bad faith."

"I think what we find in the Senate judiciary hearings is that when we ask people under oath, we are getting a different story," said Senate Democratic Leader Ron Klein of Boca Raton. "We're getting a different story than we did in the last six months, and it's frustrating."

Klein also asked King on Tuesday to look further into the need for insurance regulation reforms by having the committee invite Chief Financial Officer Tom Gallagher to testify under oath.

King quickly rejected the idea, saying he smelled a political motive for Democrats wanting to grill a powerful elected Republican.

"Nice try, Ron," King said, "but I wasn't born yesterday."

jim_ash@pbpost.com