Legislature seeks to cap medical malpractice liability

Jan 27, 2012

A 2007 Florida Senate report concluded that too many doctors are refusing emergency room on-call duty, due to increased exposure to lawsuits and higher medical malpractice insurance costs. So, as Sascha Cordner reports, one Florida lawmaker is hoping to alleviate those concerns by granting emergency room doctors immunity from medical malpractice lawsuits.

Republican Representative Matt Gaetz of Shalimar says it’s clear to him that emergency room doctors should be considered agents of the state. He says they provide care to millions of Floridians, sometimes free of charge. So, he says it’s time for these doctors to have some protections:

“House Bill 385 extends the state’s sovereign immunity protection to emergency room physicians. It will lower medical malpractice insurance costs, attract more physicians to ER practice, and improve the quality of health care provided in our state.

Under the bill, the person who files a medical malpractice lawsuit against the ER doctor must prove failure to provide a diagnostic test is a violation of the standard of care.

House Bill 385 also allows the doctors being sued as well as their legal team to essentially do discovery on the person doing the suing. That would include interviewing the person’s other health care providers, without the presence of that person or their lawyer.  Gaetz called that “leveling the playing field,” but Dana Brooks with the Florida Justice Association says it would create a “chilling effect.”

“Ones going to want to go to their doctor and share the things they need to share to get the healthcare they need. If they have to worried about that being shared with opposing counsel in a lawsuit one day, no one knows if they’re going to be in a medical malpractice lawsuit. So, if they have to worry about that being used against them one day, that’s going to be a problem.”

Debra Henley, who’s also with the Florida Justice Association, feels there is no need for the bill and cited some figures. They showed 8-million Floridians visited an ER last year.  Out of that number, there were only about 300 medical malpractice claims. Hensley says based on those figures, she disagrees that ER doctors face an avalanche of lawsuits:

"318 of eight million admissions is .000039. That’s not any kind of increased risk. I’d say that is a very low risk of a medical malpractice claim arising out of an emergency room.”

But, Doctor Andy Borom, a Tallahassee Orthopedic surgeon, disagrees. Borom is one of 14 orthopedic physicians that is on-call for emergencies from Panama City to Lake City. He says to be on call means shutting down his practice for a full day and a half just so he can deal with ER trauma patients. Borom says he and his medical colleagues deserve sovereign immunity protections:

“I will assure you that between 10 p.m. and 7 a.m., most of those people are drunk and/or not insured. And, yet I go ahead and set aside all of my revenue generating portions the following day so that I can be available to take care of those individuals. And, all we’re asking you is that for those individuals that provide zero revenue and are afforded limitless liability, to correct that.”

Though most members of the House Judiciary Committee voted in favor of the bill, Democratic Representative Darren Soto of Orlando said he could not support it because the full fiscal impact to the state is unknown:

“I know where the doctors are coming from. They’re in the ER, they don’t want to get sued, but this bill is not going to do that. They’re still going to get sued. It’s just going to be the state’s cost now. The best estimate we have if $35.4 million dollars cost of the state, and we don’t even know what the state’s reductions’ rates are going to be, and for that, I can’t vote for this bill.”

Lawmakers who supported the bill say they are still concerned about the expansion of sovereign immunity. The bill’s sponsor, Representative Gaetz says he is willing to work out any of those concerns. The bill has two more committee stops before it heads to the House floor.  Its companion, Senate Bill 614, has yet to come through any committees.