No clear winners or losers in Florida on tort reform

By LILLY ROCKWELL

THE NEWS SERVICE OF FLORIDA

Posted: 9:26 p.m. Tuesday, May 10, 2011

There were no clear winners or losers on lawsuit reform in this year's legislative session.

In the perennial battle between the powerful business and health care lobbies and trial lawyers, the 2011 session could probably best be declared a tie, with each side walking away with its fair share of victories and defeats.

"We took some dings," said Florida Justice Association spokesman Steve Schale. "We're not going to stand on top of a mountain and scream 'We had a great year.'" The justice association represents trial lawyers. But Schale said with lobbying help from members, the group was able to "moderate or beat back some things."

The session started with dozens of bills that fall seeking to limit large payouts in lawsuits, ranging from extensions of the state's sovereign immunity laws, to new lawsuit limits in medical malpractice cases, nursing home claims and lawsuits against foster care workers.

But only a handful of those proposals became law, and some were weakened from their original version.

The tort reform bills that passed and are poised to become law include:

-SB 142: A reversal of a 2001 Florida Supreme Court decision that now allows juries to consider the cause of the accident as well as the role of the car maker when placing blame for enhanced injuries caused by alleged defects.

-HB 7109: Installs a lower cap for how much a Medicaid patient is entitled to in lawsuits for non-economic damages - generally pain and suffering. The new caps are $200,000 per practitioner and $300,000 per incident. In some circumstances, these caps can be pierced. This proposal was watered down from its original version.

-HB 479: New requirements for out-of-state expert witnesses in medical malpractice cases. Now the Department of Health has to register and approve these expert witnesses.

-SB 1676: Extends a legal protection that local and state governments enjoy that prevents big payouts in lawsuits to teaching hospitals. The bill grants sovereign immunity protections to non-profit private colleges and universities which own or operate a medical school and provide teaching services at hospitals.

Getting that many bills passed dealing with tort reform should be considered a success, argued Teye Reeves, a lobbyist for the Florida Chamber of Commerce. "We did well this session," Reeves said.

Considering the exhaustive agenda the Legislature and governor pursued, from Medicaid reform, to a growth management overhaul to major changes in education policy, Reeves said the chamber was "proud of the effort and progress we made."

Still, there were many attempts at tort reform that fell short. Some of the defeated proposals include:

-HB 391/SB 822: A proposal to establish stricter standards on the type of expert witnesses allowed in trials. The bill would have established the more stringent "Daubert" standard for what expert testimony is admissible.

-HB 661/SB 1396: Places new caps on nursing home wrongful death lawsuits and shields some owners and investors in nursing homes from having to pay up in these lawsuits.

-HB 1019/SB 1500: A cap on lawsuit damages that could be paid by Florida's private community-based care organizations that provide children's welfare services. Under the bill, the caps would be $500,000 per claim, down from $1 million under current law. It also limits claims in cases with multiple providers.

-HB 1187/SB 1592: Changes a law that requires insurers act in good faith in attempting to settle and pay claims. This would change what is called the "bad faith" standard so the insurer's actions have to be proven "arbitrary." Current law only requires proof the insurer did not act "fairly and honestly" toward the insured.

Reeves said some of the bills that failed could be due to "tort fatigue." There were more bills than usual filed this year dealing with tort reform, in part due to the big appetite for lawsuit limits from a Legislature dominated more and more by Republicans and a governor who has emphasized his willingness to help business.

"There were a lot of tort bills. When you get down to the final hours of session, the way a lot of the major issues were pushed, you are getting down to a place where there is only so much they can do," Reeves said.

The Florida Justice Association has a different take on the session: exhaustion.

"It was a tough session. We're pretty tired," Schale said. He attributes the demise of many bills to the efforts plaintiffs lawyers who worked the halls. The association recruited over 100 members to travel to Tallahassee and lobby members. "We had the ability to sit down and plow through issues" using their member-lobbyists, Schale said.

"Every five or six years there seems to be a session where there is great interest in tort issues," Schale said, and this was one of them. "Last year we lost a few things but we also gained a few things last year."

He said this year the association played mostly "defense" on issues.

Meanwhile, the business lobby is already plotting its battle plan for next year's session.

Reeves said the chamber and others would pursue the expert witness bill that establishes stricter standards for what expert witness testimony is allowed in courtrooms aggressively next year. It nearly passed this year, but was stalled in the Senate.