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Lawmaker seeks to revamp Florida's medical malpractice system

March 23, 2014 | By Tonya Alanez, Sun Sentinel

TALLAHASSEE — Within days of the Florida Supreme Court eradicating medical-malpractice damage limits, a Central Florida Republican laid out his vision for turning the entire system on its ear.

Trial costs would be eliminated, and so would accusations of negligence or medical malpractice. Cases would be resolved within six to nine months. More patients would get their claims heard. And doctors wouldn't be driven to order unnecessary tests to protect themselves from liability.

"This is a big, different idea … It is significant, groundbreaking and some have even suggested, radical," Rep. Jason Brodeur, R-Sanford, told the House Judiciary Committee. "It will save billions for Florida taxpayers and millions for businesses and create thousands of jobs."

Brodeur's plan, partially modeled after workers' compensation, would put claims before a panel of doctors who would determine if "avoidable medical harm" had occurred, and compensation would follow a formulated schedule. Reduced litigation costs would lead to reduced insurance costs, he says.

Opponents – and there are many — say claims would snowball, taking insurance rates with them, physicians would flee the Sunshine state and the state's high court would deem the measure unconstitutional.

Some critics say the notion will never fly. Medical malpractice is so contentious that even minor tweaks are difficult at best, much less an entire revamp of the system, they say.

"Inevitably what you're going to have is an explosion of claims," said Jeff Scott, general counsel for the Florida Medical Association. "I don't think there is any question that this is a dangerous system."

The concept puts doctors – and their insurers – on the hook for medical error, defined more expansively than negligence, and makes them liable for avoidable bad outcomes whether they did anything wrong or not, Scott said.

The judiciary committee heard the proposal (HB 739) in workshop Monday. It did not vote.

Joining the Florida Medical Association in opposition were the Florida Chamber of Commerce, the Florida Insurance Council, the Florida Justice Reform Institute and the Florida Justice Association.

Brodeur's bill is backed by a group called Patients for Fair Compensation, a Georgia-based non-profit that has introduced similar legislation in that state.

The group's executive director, Wayne Oliver, is former vice president of Center for Health Transformation, a healthcare think tank once owned by Newt Gingrich.

Testifying on behalf of Brodeur's proposal was Joanna Shepherd-Bailey of Emory University law school. She calculated that in a decade's time it could save Florida employers as much as $66 billion in health-insurance costs. With those savings, they could hire more workers, she said.

But a consultant specializing in medical liability refuted Brodeur's analysis and cost estimates.

 "The stated intent is mathematically impossible," said Susan Forray, of Milliman, an international actuarial firm.

She estimated the proposed legislation could cause claims to increase by as much as 500 percent and current medical liability costs of $600 million a year could increase by between $340 million and $1.9 billion.

Rep. Cary Pigman, a doctor and Avon Park Republican, testified in support of his fellow House member's idea: "Most doctors would leap at the opportunity to get out of the current confrontational, adversarial system."

But William Large, president of the Florida Justice Reform Institute, warned the Florida Supreme Court would surely overturn the measure and "all your work will be for naught."

Three days before the House panel heard Brodeur's proposal, the Florida Supreme Court on March 14 ruled that a hard-fought 2003 state law limiting pain and suffering damages in medical-malpractice lawsuits was unconstitutional.

By limiting non-economic damages to $500,000 for doctors and $1 million for hospitals and clinics, insurance rates for doctors had leveled off and even started to decline in recent years, according to medical associations.

But Brodeur urged his fellow lawmakers not to retreat from the idea out of fear of the high court.

"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," he said. "Let's admit that the system is violently broken."

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