Medical Malpractice Insurance and Law in Florida - Essay Example

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You hear about tort reform on the nightly news, as Republicans talk about the need for tort reform, and how tort reform should be at the centerpiece of any health care legislation. Those for tort reform talk about the excessive fees that…
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Medical Malpractice Insurance and Law in Florida
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Tort reform is a hot issue today. You hear about tort reform on the nightly news, as Republicans talk about the need for tort reform, and how tort reform should be at the centerpiece of any health care legislation. Those for tort reform talk about the excessive fees that doctors pay for medical malpractice insurance and the doctor’s need to order unnecessary tests to avoid malpractice claims. Those against it express a concern for patient’s rights, and the inability for the injured to find adequate legal representation to prosecute their case. Many states have addressed the issue of tort reform through imposing caps on monetary awards. Florida is just one of these states.
In 2003, Florida passed a comprehensive reform of its medical malpractice laws. (Dobrinsky 2009). For instance, Florida Statute § 766.118(2)(a) limits medical malpractice “non-economic” damages to $500,000 per claimant. Fl. St. § 766.118(2)(a). Non-economic damages include such damages as pain and suffering, mental anguish, disfigurement, physical impairment, inconvenience, loss of companionship, loss of enjoyment of life and loss of consortium. Fl. St. § 766.202(8). Moreover, attorney’s fees are capped at 30% for the first $250,000 of any medical malpractice award, and only 10% of all damages in excess of $250,000. The amount that an attorney can collect is over and above the “reasonable and customary costs” that the attorney incurs. Fl. R. Pro. Conduct 4-1.5(f)(4)(B)(iii)(a).
Those in favor of such reforms state that these reforms are necessary because the costs of medical malpractice judgments drive up the cost of health care, which in turn threatens economic growth. (Johnson 3). Liability judgments drive up health care because malpractice insurers bear the brunt of the burden, and they pass their costs onto the doctors in the form of increased premiums. Doctors, in turn, pass their costs of the higher premiums onto the public. (Johnson 3). Physicians also might leave a state that has high malpractice insurance rates, which reduces the availability of health care. (Johnson 3). Before the 2003 legislation passed, Florida was declared a “disaster area” by the American Medical Association, due to doctors leaving the state or closing their practices due to high malpractice insurance and insurance companies willing to underwrite dwindling from a high of sixty-six to twelve. (Johnson 3).
Those against tort reform insist that it is a tempest in a teapot. In other words, the costs of medical malpractice claims are wildy exaggerated by those seeking tort reform. (Underwood 1). According to Tom Baker, professor of law and health science at the University of Pennsylvania School of Law and author of “The Medical Malpractice Myth,” medical malpractice tort costs were $30.4 billion in 2007, which, considering our health care system is more than $2 trillion, totals about 1 to 1.5 percent of total medical costs. (Underwood 1). And there is no reliable data that supports the theory that a cap on non-economic damages correlates with lower insurance premiums. (Dobrinsky 1).
While both sides have a decent argument, my position is that a non-economic damages cap, such as the one in Florida, is a bad idea. The costs of taking a medical malpractice case to trial is prohibitive, costing between $100,000 to $150,000, a fee that represents the costs in hiring expert witnesses, taking depositions and hiring investigators, and this fee must come out of the patient’s award. (Underwood 1). Add to this the provision that attorneys are allowed to collect only 10% of any damages over and above $250,000. All of which will make attorneys ever more likely to refuse meritorious cases, because the risk versus reward ratio is just too great. These factors will produce a chilling effect for patients who are legitimately injured, as they will have a difficult time finding adequate representation to prosecute their cases.
Moreover, it doesn’t seem that the medical malpractice reforms have produced the desired effect of controlling health care costs in Florida, as medical liability premiums continue to be the highest in the nation as of 2007, with general surgeons paying as much as $275,000 a year for insurance coverage. (Johnson 6). Malpractice insurance awards have presumably dropped since the 2003 reform, therefore if insurance premiums stay the same or rise, as is the case in Florida, than it seems that insurance reform should be in order, not malpractice reform.
Patients should be protected in the state of Florida from poor physicians, and this law does not account for this. A jury hears the facts of each individual case, and they should be the arbiters of how much an individual should be compensated, not the legislature. If a case is frivolous, then a jury will not award damages. Period. Therefore, I think that a cap on non-economic damages isn’t necessary.
Doctors should also be protected, however, as it seems that they are paying exorbitant insurance premiums. However, the protection for doctors should not come on the backs of patients, but, rather, should come on the backs of insurance companies. Insurance reform would bring about a decrease in premiums much faster than medical malpractice reform, as the data above has shown that medical malpractice reform has had little, if any, impact on insurance premiums for doctors in Florida. A physician should not have to pay more than 10% of his income to malpractice premiums if he hasn’t had a damages award against him.
While there admittedly is a case to be made for tort reform, in that physicians are paying higher and higher insurance premiums, which causes a ripple effect that increases the costs of overall health care, there is more of a case to be made that medical malpractice reform is not the way to achieve the goals of a reduction in health care costs and the retention of good physicians. Rather, Florida would do well to pass legislation reforming the insurance industry and this would go farther towards achieving these goals.
Fl. St. § 766.118(2)(a).
Fl. St. § 766.202(8).
Fl. R. Pro. Conduct 4-1.5(f)(4)(B)(iii)(a).
Dobrinsky, F. “Non-Economic Damage Caps Unfairly Punish the Injured.” Findlaw, 2009. Web. 1 June 2009 .
Johnson, B. “Medical Tort Reform: ATR’s Comprehensive Guide to Federal & State Efforts.” Americans for Tax Reform, 2009. June 2009.
Underwood, A. “Would Tort Reform Lower Costs?” Prescriptions Blog -, 2009. Web. 31 August 2009 . Read More
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