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Florida Politics

Hutson LOPs

Christine Jordan Sexton - March 14, 2023

Letters of protection can still be used under the compromise.

The House and Senate appear to have reached an agreement on most issues of a far-reaching bill on lawsuit limits bill that is being fast-tracked through the Legislature and has the support of Gov. Ron DeSantis.

Senate bill sponsor Sen. Travis Hutson detailed the nuances of the agreement between the House and Senate to members of the Senate Judiciary Committee on Tuesday.

“I am going to call some friends in the House right after we are done,” Hutson told committee members assuring them he would continue to hammer out some fine points of the agreement which he later described to Florida PolItics as technical.

The Florida Justice Association, which represents the state’s trial attorneys and their clients, does not support the agreement. The accord has also caught the ire of some Parkland parents and others who say that proposed changes in the bill that would protect property owners and managers of commercial properties from civil suits goes too far.

Specifically, the bill proposes allowing juries to consider the fault of all people — including criminals — who contributed to an injury.

That is part of broader policy changes in the agreement to shift Florida from a state with a pure comparative negligence approach to a state that uses a modified comparative negligence standard. The switch means that plaintiffs who are found to be more than 50% responsible for their injuries or harm may not recover damages.

The chambers agreed that the changes should not impact medical malpractice cases or wrongful death cases against physicians.

“I hold doctors to a higher standard,” Hutson said of maintaining current law for medical malpractice cases.

Florida’s hospitals and health care providers were hoping that the changes would apply to medical malpractice lawsuits.

The chambers also reached a compromise on so-called “truth in medical damages” and letters of protection, or LOPs.

Headed into the 2023 Legislative Session, Florida Justice Reform Institute President William Large said cracking down on letters of protection — a vehicle designed to guarantee payments to certain medical providers ahead of litigation — was a top priority because inflated bills drive excessive jury settlements.

Large and other business groups initially wanted to ban the use of letters of protection and required providers to either accept commercial insurance reimbursement for insured patients or agree to Medicare or Medicaid rates for uninsured patients.

The agreement between the chambers addresses both past and future medical bills. Specific to past bills the agreement allows jurors to see the amount that was paid to settle the bills regardless of the source of payment.

In regard to future medical bills, the agreement allows the jury to see evidence depicting the amount necessary to satisfy unpaid charges for incurred medical treatment. For insured patients whose bills have been paid by their health insurance carrier or HMO, the jury could see evidence of what the health insurer is obligated to pay the health care provider to satisfy the health care bill plus the claimant’s care expenses under the insurance policy.

For insured patients who did not submit bills to the health insurer or HMO to pay and received care under a letter of protection, the jury can see evidence of what the insurer or HMO would have been required to pay plus the claimant’s care expenses under the insurance policy.

And for patients on Medicare or Medicaid, the jury would be told what 120% of the Medicare reimbursement rate is in effect at the time of service. If there is no applicable Medicare rate for a service, 170% of the applicable Medicaid rate will be presented to the jury.

Specific to attorney fees, House and Senate Republicans have agreed to narrow the state’s broad one-way attorney fees statutes to allow the attorney fees to be recovered in declaratory judgments for coverage denial claims.

Regarding bad faith claims, the Senate has agreed to the House’s position to amend current law to make clear that “mere negligence is not bad faith.”

Additionally, the chambers have agreed, Hutson said, to provide a safe harbor against bad faith claims for insurers that give them up to 90 days to pay either an amount covered by a policy or the amount demanded by the person filing the claim, whichever is less.

The overall agreement was embodied in the strike everything amendment that the Senate Judiciary Committee agreed to tag onto SB 236 on Tuesday night and in the lengthy amendment that has been filed to HB 837 by bill sponsor Rep. Tommy Gregory. The House bill will be taken up by the full House on Thursday while Hutson’s bill now heads to the Senate Fiscal Policy Committee.