Lawmakers want to limit medical malpractice claims

Feb 13, 2012

A bill that would have granted sovereign immunity to emergency room doctors is changing as it moves through the legislature. Lynn Hatter reports a House panel has approved a series of amendments that supporters say would bring down the cost of healthcare. But the move has opponents arguing it would limit a patient’s right to sue for medical malpractice.

A proposal by State Republican Representative Matt Gaetz would have expanded state liability caps to emergency room doctors, but would have cost Florida taxpayers $90 million. In a tight budget year—some lawmakers balked at the cost, so the bill has been rewritten to allow doctors to go through arbitration. The new language would let doctors create agreements that opponents like the Florida Justice Associations Ken Sobel says would limit a patient’s ability to sue for medical malpractice.

“Imagine a patient who comes into a doctor’s office. They’re sick. And they’re presented with a bunch of documents to sign. And you sign just about anything because, let’s face it, you’re there for medical care. You’re not going to refuse. And they’re not going to find out what they signed, until it’s too late.” 

Under the re-written version of House bill 385, if a patient were to sue a doctor, the doctor would be allowed to have his or her attorney present, Something that does not happen now. Doctors could also refuse to speak with a patient’s attorney. And, a patient would have to prove with “clear and convincing evidence” that a doctor didn’t perform what’s called a “supplemental test”— in other words, that they failed to follow-up on health problems or didn’t perform their jobs properly. Republican Representative Fred Costello an Ormond Beach dentist, says the changes are necessary to level the playing field.

 “It was said that, oh my gosh we would be held to the same criminal standard, that “clear and convincing” was a standard for criminal court and we shouldn’t be doing that here. If someone is suing me for malpractice you better believe its criminal in my opinion! So I would hope that we use the same standard of “clear and convincing.” 

The bill is a result of two things: heavy lobbying by physician and hospital groups, and a desire to bring down healthcare costs. The bill’s supporters point to doctors practicing what’s called defensive medicine—doing unnecessary tests or procedures out of fear of lawsuits. However the overall impact of defensive medicine is hard to measure. And the most recent estimates from the U.S. Congressional budget office showa changes in liability laws would save less than half-a-percent a year on healthcare costs. The Florida Justice Association estimates medical malpractice lawsuits contribute only 6/1000ths of a percent to the total cost of healthcare increases in the state.

Meanwhile hospital groups and the bill’s sponsor, Republican Representative Matt Gaetz, argue  the measure doesn’t let bad doctors off the hook for malpractice, nor does it limit a patient’s right to sue.

 “Why not let both sides have equal access to make sure we have the best, most efficient outcomes? We have to be sure every dollar we spend in the healthcare context is driving to efficient, effective patient care. The more patients we can treat the more people will live healthy lives. And that’s what this bill does. By removing defensive medicine, it ensures every dollar is directed to efficient care.” 

Gaetz’s proposal cleared the House Governmental Appropriations committee on a party line vote with Democrats in opposition. It has one more committee stop. A companion bill by Senator John Thrasher. That proposal is at its second-to last committee stop in the Senate.  

The proposals are the latest efforts on medical tort reform, following a 2003 overhaul that drastically cut the number of medical malpractice lawsuits filed. Last year, there were only 960 such cases, with a third resulting in a judgment against the physician. In the same timeframe, more than eight million people visited the state’s emergency rooms, putting the chance for a doctor to be sued at less than 1-percent.