March 18, 2025 – Jim Saunders

TALLAHASSEE — On one side are people telling heart-wrenching stories about the deaths of their adult children or parents. On the other are people warning about shortages of doctors and soaring medical-malpractice insurance costs.

The two sides are colliding in the Florida Legislature, where a Senate committee Tuesday approved a bill that would change a decades-old law and clear the way for more malpractice lawsuits over patient deaths.

“The bill is about accountability, the value of life and ensuring our laws are just,” bill sponsor Clay Yarborough, R-Jacksonville, said moments before the Senate Health and Human Services Appropriations Committee voted 8-2 to approve the measure (SB 734).

But Sen. Gayle Harrell, a Stuart Republican who joined Sen. Colleen Burton, R-Lakeland, in voting against the bill, said “there are other ways to solve this problem without creating more problems in the system.” She and other opponents contend that high insurance costs drive doctors away from the state.

“We are desperately in need of physicians,” Harrell said. “If this bill passes, we are going to have an increase in medical malpractice (insurance rates). We are already the highest in the country, and it will continue.”

Proposals to change the 1990 law have surfaced periodically, but they could have more momentum this year. Yarborough’s bill has been approved by two committees, while a House version (HB 6017) has cleared one panel.

The bills involve wrongful-death lawsuits and what are known as “non-economic” damages for such things as pain and suffering.

They would undo part of the 1990 law that prevents people from seeking non-economic damages in certain circumstances. People who are 25 years old or older cannot seek such damages in medical-malpractice cases involving deaths of their parents. Also, parents cannot seek such damages in malpractice cases involving the deaths of their children who are 25 or older.

Numerous speakers have appeared at the Senate and House meetings to tell stories about how their parents or adult children died after medical malpractice — and an inability to pursue damages in the deaths.

Karen Aguilar said Tuesday her 87-year-old father died in January because of alleged negligence at a Pasco County hospital.

“Some argue that financial compensation cannot replace a loved one, and you’re correct,” Aguilar told senators. “But wrongful-death lawsuits are not about putting a price on a life. They are about ensuring accountability, deterring negligence and getting families a pathway to justice.”

But Andrew Bolin, an attorney who represents doctors and hospitals and spoke Tuesday on behalf of the business-backed Florida Justice Reform Institute, said clearing the way for more medical-malpractice lawsuits would worsen problems such as what he described as “OB deserts” — areas of the state that do not have obstetrical care.

“Non-profit hospitals have to stay open,” David Mica, a lobbyist for the Florida Hospital Association, told senators. “One-third of your rural hospitals in this state are operating at a negative margin.”

https://www.newsserviceflorida.com/latest/headlines/sides-collide-on-medical-malpractice-issue/article_960099e6-041b-11f0-9677-6fd3d8c339a0.html

By Jim Saunders Jan 22, 2024

TALLAHASSEE — Florida senators Monday began moving forward with a proposal that would make major changes in the state’s medical-malpractice laws, including limiting pain-and-suffering damages in lawsuits against doctors and hospitals.

The proposal refueled a decades-long debate in the Capitol about damage caps, pitting doctors, hospitals, insurers and business groups against plaintiffs’ attorneys and people who said they had suffered from malpractice.

The Senate Judiciary Committee voted 8-2 to support the bill (SB 248), which initially called only for revamping another medical-malpractice law. The committee added the proposed caps to the bill.

Supporters of the caps said they are needed to hold down medical-malpractice insurance rates and help attract doctors to Florida.

“There is a malpractice crisis, no matter how you look at it,” said Charles Chase, an anesthesiologist who represented the Florida Osteopathic Medical Association at Monday’s meeting. “Florida is up at the top in almost every statistical category, malpractice.”

But opponents of the caps said they would shortchange people who have been injured or died because of the negligence of doctors and other health providers.

“There has never been any evidence that these cases are brought frivolously,” Senate Minority Leader Lauren Book, D-Davie, said. “These are a lot of times the worst of the worst.”

Under the proposed caps, a plaintiff in a personal-injury or wrongful-death case involving medical malpractice could receive a maximum of $500,000 in “non-economic damages” from doctors or practitioners, regardless of how many practitioners are liable. The cap would be $750,000 in lawsuits against hospitals or other “nonpractitioners.”

Lower caps would apply in lawsuits against doctors who provide emergency care and lawsuits involving Medicaid patients. The caps would not apply to “economic” damages, which involve such things as lost compensation.

Malpractice caps have long been a contentious issue. The Legislature in 2003 held special sessions before passing a series of caps on non-economic damages.

But the Florida Supreme Court in 2014 and 2017 rulings struck down those caps, finding that they were unconstitutional.

Senate Judiciary Chairman Clay Yarborough, R-Jacksonville, said the caps approved by the committee Monday were designed to address the Supreme Court’s concerns, including about equal-protection violations. Also, the makeup of the Supreme Court has changed dramatically since 2014 and 2017, with five of the current justices appointed by Republican Gov. Ron DeSantis.

The committee’s move Monday to tie the proposed caps to the bill about the other medical-malpractice law created an unusual dynamic.

That law prevents adult children from collecting pain-and-suffering damages in lawsuits involving the wrongful deaths of their parents. It also prevents parents from recovering the damages in the deaths of adult children over age 25.

The bill would allow adult children and parents to seek damages in such cases.

Doctors and insurers in the past have fought similar proposals. But they were willing to go along Monday when the proposed change was coupled with the overall caps on non-economic damages.

“If we are going to remove that prohibition (on pain-and-suffering damages in the adult wrongful-death cases), then we also must have some counterbalance in the system,” said Andrew Bolin, a medical-malpractice defense attorney who represented the Florida Justice Reform Institute, a group that lobbies for lawsuit limits.

Lawmakers from both parties supported the underlying bill, but Yarborough indicated that tying it to the caps was the only way to build enough support to move forward.

“This is hard,” Senate Majority Leader Ben Albritton, R-Wauchula, said. “It’s hard to strike balance.”

A House bill (HB 77) has been filed but has not been heard in committees. It does not include the proposed caps.

https://www.newsserviceflorida.com/latest/headlines/medical-malpractice-caps-emerge-in-senate/article_e8d023ae-b97a-11ee-8412-4bc5bc75a859.html 

Contractors Challenge New Insurance Law

By Jim Saunders – May 31, 2022

TALLAHASSEE — Less than a week after Florida lawmakers rushed to make property-insurance changes, a contractors group Tuesday filed a constitutional challenge that targets a new restriction on attorney fees in lawsuits against insurance companies.

The Restoration Association of Florida and Air Quality Assessors, LLC, an Orlando firm that does work such as mold testing and leak detection, filed the lawsuit in Leon County circuit court.

It came after lawmakers last week passed a measure (SB 2-D) to try to bolster a troubled property-insurance market that has led to homeowners losing coverage and seeing spiraling premiums. Lawmakers gave final approval to the bill on Wednesday, and Gov. Ron DeSantis signed it on Thursday.

Insurers have long blamed litigation and attorney fees for driving up costs. The new law took a series of steps to try to address those issues, but the constitutional challenge focuses on part of the measure that deals with what is known as “assignment of benefits.”

In assignment of benefits, homeowners sign over their insurance claims to contractors, who then seek payment from insurance companies — often spurring lawsuits about claims and payments.

Contractors in the past have been able to recover their attorney fees from insurers if they are successful in the lawsuits, a concept known as “prevailing party fees.” But the new law stripped contractors of being able to recover prevailing-party fees when they are assigned benefits.

Homeowners can still recover prevailing-party fees if they file lawsuits directly against insurers, but the contractors cannot. The lawsuit alleges that the change violates equal-protection and due-process rights and denies contractors access to courts.

“Claims submitted to insurers for work performed by contractors under an AOB (assignment of benefit) are generally not large in monetary amount,” the lawsuit said. “When the insurer delays, underpays or does not pay a claim at all, contractors are forced to commence an action against the insurer to recover the full amount due for the work performed. Without the corresponding right to recover prevailing party fees, SB 2-D makes it economically unfeasible for the contractor to pursue its lawful rights and remedies in court.

Invoices for work performed by contractors under AOBs are generally not significant enough for a lawyer to agree to represent the contractor on a contingency fee basis and it is not economically reasonable for the contractor to … pay a lawyer on an hourly basis to recover the amount(s) owed.”

The lawsuit said invoices for work done by Air Quality Assessors and many other members of the association often total $2,500 to $3,000.

“The inability to recover prevailing party attorneys’ fees will effectively shut the courthouse door to plaintiffs because it will be cost-prohibitive to pay an attorney for these types of small claims,” the lawsuit said.

But William Large, president of the Florida Justice Reform Institute, a business-backed group that lobbies to reduce litigation, said in a statement after the law passed that “property insurance lawsuits have exploded over the last several years, overwhelming Florida’s insurance market.”

“Senate Bill 2-D contains significant litigation reforms and gets to the heart of escalating rates and limited coverage — lawsuit abuse,” Large said.

Assignment of benefits has long been a contentious issue in the insurance industry. The Legislature in 2019 put additional restrictions on assignment of benefits, at least in part because of an increase in residential water-damage claims.

But contractors contend that assignment of benefits helps homeowners who are unfamiliar with making sure insurance claims are handled properly.

“AOBs are not new and have been used for a long time, especially during emergency weather situations,” the lawsuit said. “In Florida, AOBs are prevalent in the residential property context when homeowners suffer damage to their home and need to hire contractors to repair the issues.”

The lawsuit, which includes seeking a preliminary injunction against the law, names as defendants Melanie Griffin, secretary of the state Department of Business and Professional Regulation, and Donald Shaw, executive director of the Construction Industry Licensing Board. The case has been assigned to Leon County Circuit Judge Layne Smith, according to an online docket.

https://www.newsserviceflorida.com/latest/headlines/contractors-challenge-new-insurance-law/article_3a444532-e12b-11ec-bc02-9b78be19d779.html#tncms-source=login 

HOUSE, SENATE DIVERGE ON HEALTH LAWSUIT BILLS       

2/8/2021 Christine Sexton

TALLAHASSEE — Lawmakers are poised this year to pass legislation to protect health-care providers and other types of businesses from lawsuits related to COVID-19.

But while the House and Senate unveiled identical bills for non-health care businesses, their proposals aren’t the same when it comes to legal protections for long-term care providers, hospitals, physicians and other parts of the health-care industry.

Chief among the differences are how long legal protections should be in effect, types of COVID-19-related lawsuits that would be limited and whether to require physician affidavits when lawsuits are filed. 

A proposed bill (PCB HHS 21-01) the House unveiled Friday would make changes in how lawsuits are filed, including requiring the physician affidavits, but would rescind the changes “one year and one day” after they become effective.

By contrast, the Senate proposal (SB 74), filed by Senate Judiciary Chairman Jeff Brandes, R-St. Petersburg, would apply to COVID-19 lawsuits for injuries that occur up to one year after the end of a declared state or federal public health emergency, whichever is later.

The chambers also take different approaches to the types of COVID-19-related claims that would be limited.

The House bill would apply to medical claims filed against nursing homes and assisted living facilities, as well medical-malpractice claims. It also would apply to COVID-19 negligence cases that could be filed against numerous other types of health-care providers, from physicians to federally qualified health centers to pharmacies and clinical laboratories.

The Senate bill, by contrast, defines COVID-19 lawsuits as claims, “whether pled as negligence, breach of contract or otherwise,” alleging that health-care providers failed to follow clinical or government-issued health standards or guidance related to COVID-19; failed to properly interpret or apply the standards or guidance in providing health care, allocation of scarce resources, or assistance with daily living; or failed to follow government-issued health standards or guidance relating to infectious diseases if there were no applicable standards and guidance specific to COVID-19.

In another difference, the House proposal would lead to judges deciding whether defendants made a “good faith effort to substantially comply with any authoritative or controlling government-issued health standards or guidance at the time the cause of action accrued.” If judges determine such good-faith efforts were made, defendants would be immune from liability. 

Despite the differences, health care lobbyists were quick to praise the House and Senate for the proposals.

“Lawsuits are not the remedy to ensuring high quality care — they simply divert precious resources away from our care centers and send a dangerous message to the health care heroes on the front lines —  that the clinical, life-saving decisions they made to protect residents will be used against them,” Emmett Reed, president and chief executive officer of the Florida Health Care Association, said in a prepared statement after the release of the House proposal.

Reed’s association, the state’s largest nursing-home industry group, issued similar praise when Brandes filed his bill.

Lawmakers will start the 2021 legislative session March 2, and lawsuit limits for health-care providers and other types of businesses are a top priority for Republican leaders.

Chris Nuland , a Jacksonville attorney and lobbyist for physician groups,  said both the House and Senate bills take steps to  protect “health care heroes” from lawsuits stemming from the pandemic, which has killed 27,815 Florida residents, according to the latest state data.

Nuland praised the House’s proposal for specific inclusion of medical malpractice claims.

“This is an excellent piece of legislation. Should this pass, the health care providers who risked their lives treating patients, or were told they could not legally treat patients, would not be punished for doing the right thing,” Nuland said in a statement to The News Service of Florida.

There are some changes, however, physician associations would like to see in the House proposal.

“Ideally, the bill would not sunset in one year, as we have no idea how long this pandemic will last,” Nuland said of one of the potential changes to the measure.

Health care providers have been calling for protections from COVID-19-related lawsuits for nearly a year. The Florida Medical Association, the Florida Osteopathic Medical Association and the Florida Justice Reform Institute in March 2020 requested that Gov. Ron DeSantis issue an executive order protecting physicians from medical-malpractice lawsuits for care provided during the pandemic.

Hospitals and nursing homes quickly followed suit, sending a letter to the governor on April 3 asking for immunity from civil and criminal liability for “any harm or damages alleged to have been sustained as a result of an act or omission in the course of arranging for or providing health care services” during the pandemic. 

Under the House’s proposal a plaintiff couldn’t file a  COVID-19 lawsuit against a health care provider without first getting an affidavit from a state-licensed physician attesting that the claim was the result of the defendant’s actions. The Senate bill does not have such a requirement.

The affidavit requirement in the House bill is identical to one in the bills that would shield other types of businesses from COVID-19 liability. Those bills (HB 7 and SB 72) are being fast-tracked through legislative committees, but the affidavit requirement has drawn objections from House and Senate Democrats.

Florida Justice Reform Institute President William Large said the affidavit requirement mirrors those in laws governing how medical malpractice lawsuits are filed.

“We want to make sure it’s not taken away,.” said Large, whose business-backed group lobbies on a variety of issues aimed at limiting lawsuits.

While the House and Senate bills include differences, they also have similarities. As an example, both proposals would require plaintiffs to file complaints within one year after such things as a COVID-19 illnesses or deaths occur. If such a cause of action “accrued” before the legislation takes effect, the plaintiff would have one year to file a lawsuit.

https://new.newsserviceflorida.com/app/post.html?postID=39748 

SUPREME COURT REVAMPS KEY LEGAL STANDARD

12/31/2020                                                                                                                                                                                                            Jim Saunders

TALLAHASSEE — The Florida Supreme Court on Thursday revamped a key legal standard as its conservative majority continued to show a willingness to undo previous decisions that have guided the state’s courts.

Justices, in a 6-1 ruling, decided to scrap a state standard for determining whether lower-court judges should grant summary judgment in civil lawsuits. The Supreme Court said Florida should align with a federal summary-judgment standard — an approach backed by business groups that have pushed for ways to cut down on litigation.

“This is the Holy Grail of lawsuit reform in Florida,” William Large, president of the business-backed Florida Justice Reform Institute, said in a prepared statement after the Supreme Court issued the ruling

Summary judgment generally involves judges being able to decide lawsuits before they go to jury trials. The issue in Thursday’s ruling dealt with the standards that judges should use in determining whether to grant summary judgment.

Justice Jorge Labarga, in a dissenting opinion, wrote that the change “discards long-settled law” in Florida and will lead to judges applying a less-restrictive federal standard in making decisions about summary judgment. The ruling, he said, “infringes upon the jury’s sacred role” in deciding lawsuits.

“The moving party’s intent in filing a motion for summary judgment is to dispose of a litigant’s claim on the basis that no genuine issue of material fact exists. For decades, Florida courts have been judicious in granting summary judgment because, as observed by one of our district courts, ‘a motion for summary judgment is not a substitute for a trial on the merits,’” Labarga wrote. “However, when the more relaxed federal interpretation is applied to a motion for summary judgment, the trial court’s analysis goes far beyond evaluating whether an issue of material fact is in dispute. Instead, the trial court assumes a role traditionally reserved for a jury and engages in weighing evidence.”

But the court’s majority said that in making the change, “we reaffirm the bedrock principle that summary judgment is not a substitute for the trial of disputed fact issues.” 

“Our goals are simply to improve the fairness and efficiency of Florida’s civil justice system, to relieve parties from the expense and burdens of meritless litigation, and to save the work of juries for cases where there are real factual disputes that need resolution,” said the opinion shared by Chief Justice Charles Canady and Justices Ricky Polston, Alan Lawson, Carlos Muniz, John Couriel and Jamie Grosshans.

Thursday’s opinion was one in a series of rulings that have reflected a major philosophical shift on the Supreme Court since January 2019, when longtime Justices Barbara Pariente, R. Fred Lewis and Peggy Quince stepped down because of a mandatory retirement age.

Pariente, Lewis and Quince had been part of a relatively liberal majority that long frustrated state Republican leaders and business groups. Their retirements opened the door to Republican Gov. Ron DeSantis appointing replacements who have created a solid conservative majority.

Other examples of the philosophical shift include the court scrapping a longstanding legal requirement of reviewing death sentences to determine if they are “disproportionate” punishment; ruling that unanimous jury recommendations are not necessary before death sentences can be imposed; and tossing out a decades-old standard about circumstantial evidence in criminal cases.

Thursday’s opinion on the summary-judgment standard will change a rule for the state courts system and will take effect May 1. It came after justices asked attorneys in an Osceola County fatal traffic-accident case to submit briefs about whether the summary-judgment standard should be changed.

After opening up the issue, the Supreme Court received numerous friend-of-the court briefs, with business groups such as the Florida Chamber of Commerce, the U.S. Chamber of Commerce, Associated Industries of Florida and the Florida Health Care Association backing a change to the federal standard.

“As frequently named defendants in Florida lawsuits, the members of the U.S. Chamber and Florida Chamber have struggled with the inequity and inefficacy of Florida’s summary judgment standard,” lawyers for the chamber groups wrote in a joint brief in December 2019. “Since it was first announced 53 years ago … Florida’s standard has prevented the resolution of both meritless and meritorious litigation prior to lengthy and expensive trials, needlessly increasing costs for Florida’s business industry and consumers.”

But groups representing plaintiffs’ attorneys raised concerns about changing the standard and suggested the issue be sent to a rules committee to take input.

“The issues before this (Supreme) Court are of upmost importance to the members of our organizations, who advocate for their clients to have the right to jury trial preserved in all cases, such that this right should only be taken away in the pre-trial process after having a full and fair opportunity to oppose motions for summary judgment,” the Florida Justice Association and the American Association for Justice wrote in a joint brief in June.

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