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Sarasota Herald Tribune

Powerful lobbies butt heads over negligence legislation

By Lloyd Dunkelberger , Herald-Tribune
/ Thursday, April 21, 2011

Injured Floridians' ability to sue nursing homes, doctors and hospitals for compensation when they are hurt by negligence could be curtailed under legislation pitting some of the capital's most powerful lobbying groups against each other.

Doctors, trial lawyers, nursing homes and insurance companies are all vying for influence over an issue that will be decided as the Legislature moves toward its scheduled May 6 adjournment.

Among the most contentious issues is a provision that would limit suits when a nursing home patient dies. The survivors would be limited to a $250,000 cap for non-economic damages -- such as pain and suffering -- although there would be no cap on economic damages, which cover medical bills, funeral costs and related items.

Randolph Gray, a Madison County man who lost both his parents in nursing home incidents, has been lobbying lawmakers to remove the damage cap from a major Medicaid bill (SB 1927) that is ready for a Senate floor vote. He said his father choked to death after a meal, while his mother died because of negligence involving a breathing tube.

"It is wrong to limit the rights of Floridians to have their voices heard in the one place open to all -- the courts," Randolph, who works for the state Department of Financial Services, told the Senate Budget Committee.

Sen. Joe Negron, R-Stuart, the chief architect of the Medicaid bill, called the $250,000 cap a "reasonable amount," noting that survivors could still claim unlimited economic and punitive damages, providing they can prove the nursing home acted wrongfully.

But Negron also said "the policy is certainly debatable."

The issue encapsulates the competing forces lawmakers face as they debate lawsuit limits.

Lawmakers must balance the rights of victims of negligence against the claims that costly litigation is adding to the financial burden of government programs like Medicaid or of Florida businesses from health care companies to auto manufacturers.

"These will always be difficult discussions because you're trying to fit things together that you care about deeply," said Rep. Dennis Baxley, R-Ocala, one of the House leaders on lawsuit limits. "You want victims to be properly cared for. But on the other hand, you don't want to drive up the cost of health care, drive up the cost of the insurance, simply because of a lot of windfall cases that have to be paid."

Other major lawsuit limits moving in the last weeks of the annual session include:

A cap on non-economic damages on claims made by Medicaid patients against doctors or other medical providers. A per-incident cap of $300,000 would be set, with no single health care provider having to pay more than $200,000. Critics say the cap discriminates against Medicaid patients, since other patients can claim up to $500,000 in non-economic damages.

A bill (HB 479 and SB 1590) that is a top priority for the Florida Medical Association would give more legal protections to doctors and hospitals facing malpractice lawsuits. Among the provisions, hospitals would not be liable for most actions by doctors if they were independent contractors. The measure also sets new standards for expert witnesses and allows lawsuit defendants more power to question the medical care of the injured patients.

Trial lawyers say those proposals, as well as the nursing home cap, would shift the balance from the injured patients -- who already face restrictions on lawsuits against hospitals, nursing homes and other medical providers -- to the providers.

"Those rights and the safety of nursing home residents are in great jeopardy if these bills were to become law," said Debra Henley, executive director of the Florida Justice Association, a trial lawyer advocacy group.

"None of what they are considering will bring any jobs to Florida," Henley said. "What it will do instead is it will shift the costs from the health care providers that are responsible for injuring Floridians to the taxpayers."

The lawsuit restrictions are riding a wave of political momentum this spring pushed by a highly conservative Legislature and Gov. Rick Scott, who called the excessive filing of lawsuits part of the "axis of unemployment" blocking the state's economic recovery.

And aside from the legislation related to nursing homes and the health care professionals, several other major "tort" bills remain in play.

Among them is a bill (SB 142), which already passed the Senate, that would shield automakers from paying some damages if they can show the driver was partially negligent for the accident.

The bill would overturn a Florida Supreme Court decision that determined that automakers could be held solely at fault for defective vehicles even if the drivers were partially at fault for the accidents.

Another measure (SB 1694) would cap legal fees in auto-insurance injury cases.

But other tort bills have stalled despite Scott's advocacy for lawsuit limits and the conservative bent of the Legislature. Among them is a bill that would have made it harder for consumers to sue insurance companies if they acted in "bad faith" in paying claims.

Supporters of lawsuit limits say while they remain optimistic that this year's Legislature will eventually agree on many of these bills, they also concede that the fight remains difficult, in large part because of the opposition from the politically influential trial lawyers.

"There are no guarantees in this process," said William Large, head of the Florida Justice Reform Institute. "A lot of people campaigned on tort reform but it turns out getting tort reform across the finish line is a lot harder than just using rhetoric."