Christine Jordan Sexton – March 16, 2023

A bill that gives insurers, and businesses more protections against lawsuits could pass the House on Friday.

The Florida business community’s top priority for the 2023 Legislative Session — a sweeping bill to limit lawsuits against insurance companies and businesses — was center stage Thursday.

The Senate Fiscal Policy Committee voted 13-6 to pass SB 236 by Sen. Travis Hutson and the full House debated its version of the proposal, HB 837 by Reps. Tommy Gregory and Tom Fabricio, before agreeing to roll the bill to third reading ahead of a likely Friday vote.

While Democrats tried to amend the bills on Thursday, Republican supermajorities in the House and Senate successfully beat back their efforts.

Associated Industries of Florida President & CEO Brewster Bevis issued a statement following the lengthy meeting and vote.

“We applaud members of the Committee on Fiscal Policy for supporting these important policy changes that will help stop out-of-control lawsuit abuse in our state. By rebalancing Florida’s legal system, lawmakers are rightfully putting the interests of businesses and consumers above the profits of billboard lawyers. AIF will continue to stand in strong support of Florida’s leaders as they tackle our state’s toxic tort climate this Session.”

The Fiscal Policy Committee was the third Senate panel to advance SB 236, which now heads to the full Senate.

The high-priority legislation is endorsed by Republican legislative leaders and Gov. Ron DeSantis. Not all Republicans are on board, however.

Port Orange Republican Sen. Tom Wright said Thursday he was voting against the measure after hearing from constituents.

“You have 150 ‘nos’ and three ‘yesses,’” Wright told Hutson. “They voted me in so I will be down on this vote today.”

Other Senate Republicans who previously voted against the bill, such as Sen. Jay Trumbull and Sen. Nick DiCeglie, supported it on Thursday. DiCiegle told the committee that while he had concerns with the bad faith provision in the bill that the bottom line was he wanted to support tort “reform.”

Sen. Linda Stewart, a Democrat from Orlando, also voted for the bill.

Orlando trial attorney and self-described “lifelong Republican” Alexander Clem, told members of the Fiscal Policy Committee that personal responsibility has always been a cornerstone principle of the GOP. Yet the “omnibus” bill, Clem said, abandons that principle.

Clem recalled when his father served in the Legislature in the early 1970s. It was a time, he said, when there were fewer than 30 Republicans serving in the House and Senate.

“(My father) fought for personal responsibility. I know about the political pressure. I can see it. I’ve talked to you all. It’s intense. It is intense and I get it and I am sympathetic to it. But remember this, please. When you make decisions in this body, the laws that you put on the books are there forever. It’s forever time. You are here for a short time, but the laws are on the books for a forever time. This is the time to do what’s right,” he said.

The bills contain many provisions that business associations and insurers have tried to secure for the past two decades.

Included in the bills are provisions to change Florida’s negligence system from a “pure” comparative negligence system to a “modified” comparative negligence system, which would prohibit plaintiffs from collecting damages if they are more than 50% at fault for their own injuries.

The change would not apply to medical malpractice claims.

Juries considering premise liability cases also will be allowed under the bills to consider the fault of all people who contributed to an injury, including criminals.

Specific to attorney fees, the bills build off a decision the Legislature made in a December Special Session to eliminate one-way attorney fees for homeowner claims. While Florida law has long allowed a policyholder who successfully sues their insurance company to recoup their legal fees, the bills eliminate that perk.

There is an exception, however. One-way attorney fees will remain in place for declaratory judgments for coverage denial claims.

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.

Large and other bill proponents maintain that letters of protection, or LOPs, enable plaintiffs’ attorneys to inflate the costs of past medical bills.

Large hypothesizes that LOPs can inflate the costs of settlements by four times the amount. Business groups initially pushed to ban the use of LOPs and require health care providers to either accept commercial insurance reimbursement for insured patients or agree to Medicare or Medicaid rates for uninsured patients.

Ultimately, the bills allow the continued use of LOPs. But the bills would allow juries to see the amount that was paid to settle past medical bills. Additionally, juries would be able to see evidence of what a provider would accept for payment outside of a LOP.

For an insured patient, the jury could see evidence of what the insurer or HMO would have been required to pay, plus the claimant’s care expenses under the insurance policy.

For patients on Medicare or Medicaid, juries could be shown reimbursement rates. The bill allows juries to see reimbursement at 120% of the Medicare rate. If the service isn’t covered by Medicare, the jury would see 170% of the Medicaid rate.

https://floridapolitics.com/archives/596069-lawsuit-limitation-bills-keep-rolling-through-the-process/ 

Christine Jordan Sexton – March 8, 2023

— Medical costs in play —

Medical costs are among a trio of thorny issues in the omnibus tort bills that continue to be hammered out between the legislative chambers according to Sen. Travis Hutson, primary sponsor of SB 236.

“Those issues are not set in stone even as we speak right now,” Hutson told members of a Senate Banking and Insurance Committee Tuesday night who voted 8-3 to advance his lawsuit limits bill to the Senate Judiciary Committee.

Two highly watched bills aim to rein in the use of what are known as “letters of protection” (LOP). LOPs are sent to surgeons who treat injured people. Plaintiffs’ attorneys use LOPs to guarantee the providers’ medical payments from future lawsuits settlement or verdict awards.

Travis Hutson addresses medical costs in his latest bill on changes to Florida’s tort situation.

SB 236 and its counterpart HB 837 would require surgeons and other providers who treat insured patients to accept negotiated reimbursement costs. For uninsured patients, the bills would cap charges at Medicare or Medicaid rates. The Senate bill would cap providers at 120% of Medicare rates in effect at the time or if there is no Medicare rate, 170% of the applicable Medicaid rate.

The House bill also would cap reimbursements at the Medicare rate. But if there’s no applicable Medicare rate, 140% of the Medicaid rate.

Surgeons have come to Tallahassee in droves to testify against both bills, saying the provision would adversely impact the uninsured who won’t be able to find surgeons willing to take their complex cases.

But proponents of the restrictions say LOPs inflate the patient’s medical costs and in turn fuel large jury verdicts. The reason? The higher the costs of past care, the higher the costs of future care and the higher the amount of pain and suffering juries are willing to award

Florida Justice Reform Institute President William Large said tackling the LOPs situation is “the most significant” civil reform that could be made this session. At an Associated Industries of Florida meeting earlier this year, Large said lawsuits with past medical costs of $90,000 or more can yield big verdict returns.

https://floridapolitics.com/archives/593819-diagnosis-for-3-8-23-checking-the-pulse-of-florida-health-care-news-and-policy/

 

Christine Jordan Sexton
February 24, 2023

The Senate has not filed a companion bill to date, but Senate President Kathleen Passidomo has thrown her support behind the move.

The House is pushing ahead with changes that would place new limits on lawsuits and make it harder for people to sue insurance companies or win damages in complicated lawsuits.

The House Civil Justice Subcommittee spent more than four and a half hours discussing HB 837 before passing it by a 12-6 vote. The bill is slated to go to the full Judiciary Committee next.

To date, the Senate has not filed a companion bill, but Senate President Kathleen Passidomo threw her support behind limiting lawsuits, appearing at a press conference with Gov. Ron DeSantis and House Speaker Paul Renner

House subcommittee members rejected five amendments offered by Democrats that would have watered down the far-reaching bill, and adopted amendments offered by bill co-sponsors Tommy Gregory and Tom Fabricio

HB 837 changes Florida’s comparative negligence system from a “pure” comparative negligence system to a “modified” comparative negligence system. The bill also eliminates Florida’s one-way attorney fee provisions for insurance cases, a move that opponents argue will eliminate the ability for low-income individuals and those with average salaries from being able to sue their insurance companies.

“This is sweeping with a very broad bush,” Rep. Mike Beltran said noting that the changes impact personal injury protection, life, property and auto glass cases. “We are taking things that people would probably concede there is some abuse and then we are taking things were there is no abuse. I am not aware of any abuse in life insurance litigation.”
One Gregory amendment adopted Friday morning changes the statute of limitations people have to file a suit against a business from four to two years, a move that some warned will lead to an increase in litigation, not a reduction. 

Beltran, a Republican who voted against the bill, said he hadn’t heard of any complaints about the statute of limitations and said that the change could have unintended consequences, including increasing the number of lawsuits.

The subcommittee also agreed to tag on an amendment offered by Fabricio that would require juries, when considering premise liability, to weigh the fault of all persons who contributed to the injury, even criminals. 

The subcommittee shot down amendments offered by Democrats, including an amendment offered by Rep. Daryl Campbell which would have eliminated from the bill a new section of law relating to the admissibility of evidence to prove medical expenses in personal injury or wrongful death actions. 

Dubbed “truth in damages” by proponents, the section would limit what the jury can see in terms of past medical expenses. If the plaintiff is insured, the jury will see the amount the health insurer is obligated to pay to satisfy the plaintiff’s medical treatment, plus any copayments or deductibles.

Under the bill, if the plaintiff has health insurance coverage, the jury only is allowed to see the amount the insurer is obligated to pay to satisfy the claimant’s incurred medical treatment or services, plus the plaintiff’s share of medical expenses.

If the plaintiff is uninsured, the jury will see the Medicare reimbursement rates that were in effect at the time of the trial. If there is no applicable Medicare rate for a service, the bill sets the fees at 140% of the Medicaid rate.

The committee heard from several health care provider groups that testified that they wouldn’t be able to treat patients if the bill passed because of the low Medicare and Medicaid reimbursement rates.

Business interests have long decried Florida’s judicial system as a “hellhole.” HB 837 has been described by insurance and business associations as the most far-reaching proposal considered by the Legislature in years.

“Governor DeSantis has repeatedly pledged to take on the toughest issues and he has delivered. Now, with help from the Legislature, he’s taking on the trial lawyers in dramatic fashion and leading Florida towards a more predictable, stable legal environment that focuses on fairness and personal responsibility,” Florida Justice Reform Institute President William Large said in a statement following the vote. Large thanked the governor, Renner, and the bill sponsors for filing the measure which he called, “the most consequential civil litigation reform in a generation.”

https://floridapolitics.com/archives/590777-bill-limiting-lawsuits-and-attorneys-fees-clears-house-subcommittee/ 

 

Tort reforms inbound: House Judiciary Committee Chair Rep. Tommy Gregory this week filed a 22-page bill that makes significant changes to the state’s tort system, eliminating one-way attorney fees and attorney fee multipliers across all lines of insurance and putting the kibosh on the use of letters of protection (LOP). At press time there was no companion for Gregory’s HB 837. Florida Justice Reform Institute President William Large said “solving” the LOP issue was the “most important” issue to tackle this Session.

Meanwhile, DeSantis appeared with legislative leaders this week to announce his support for the changes. “You have a lot of use of the legal system that’s been put toward not benefiting someone in the system,” DeSantis told reporters in Jacksonville. “We don’t want cases that are brought where we know there’s no real liability but nevertheless it adds to the cost.” DeSantis didn’t release any details regarding the changes he’d like to see made this Session.

https://floridapolitics.com/archives/589266-takeaways-from-tallahassee-come-one-come-all/ 

Christine Jordan Sexton – February 13, 2023

‘If you ask me what is the most important thing you can do on civil justice or lawsuit abuse, it’s solving this issue.’

Now that the long-running lobbying over AOB (assignment of benefits) has been resolved, business interests are targeting another thorny issue with an acronym they want tackled: LOP.

A letter of protection (LOP) is a letter sent to a medical professional by a plaintiff’s attorney representing the patient. LOPs guarantee the provider payment for medical treatment from a future lawsuit settlement or verdict award. Therefore, if the patient is insured, providers don’t bill the insurers Medicare or Medicaid.

“If you ask me what is the most important thing you can do on civil justice or lawsuit abuse it’s solving this issue,” Florida Justice Reform Institute President William Large said at the Associated Industries of Florida Florida Business Forum event in Tallahassee.

Large said letters of protection enable plaintiff attorneys to inflate the value of past medical bills and, moreover, allow plaintiffs to “get around” the set-off rule.

Large hypothesizes the use of LOPs artificially inflates the costs of settlements by four times the amount.

Because the providers are going outside the insurance system, the costs of care are higher. 

The higher the costs of past care, the higher the costs of future care, and the higher the amount of pain and suffering juries are willing to award. Large said his analysis shows lawsuits with past medical costs of $90,000 or more can yield big verdict returns.

“There’s a real incentive to increase the past medicals,” Large told the crowd.

Additionally, the use of an LOP allows plaintiff attorneys to circumvent the “set-off rule” which allows the amount paid by the insurer and accepted by the health care providers to be deducted from past medical bills.

Because the medical bills are outstanding and payment has been made, there is no set off.

LOPs, Large said, increase costs by “five or sixfold” every time they are used.

Florida Trucking Association President & CEO Alix Miller said LOPs are a reason the 10 insurance carriers for the trucking industry have been driven out of the market. Many trucking companies have seen their insurance rates double and their coverage reduced by half.

She said the trucking companies, many of which she called mom-and-pop businesses, earn 6 cents on the dollar, and “have no choice but to cover our legal expenses of frivolous lawsuits onto the movement of goods.”

Miller said FTA estimates that the tort tax translates up to $5,000 annually.

LOPs have been a priority issue for the business community over the last several years with Publix throwing its weight behind changes.

https://floridapolitics.com/archives/588036-business-groups-target-letters-of-protection-for-upcoming-2023-session/