In the midst of health care fight, Legislature pushes bills to limit medical liability

Opponents point to a decline in lawsuits against doctors and hospitals, and the drop in insurance costs, but proponents say it’s time to impose new limits on liability.

03/11/2013 11:00 AM

03/11/2013 8:42 PM

A year ago this month, Michael Lawley of Melbourne disconnected the respirator that was keeping his brain-damaged daughter alive.

Shannon Lawley had entered a Brevard County emergency room suffering from what an autopsy would later determine was acute pancreatitis. She waited five hours as the understaffed team failed to monitor her vital signs or transfer her to intensive care, her father told the House Subcommittee on Civil Justice last week.

Doctors eventually administered heart medicine without realizing Shannon’s heart was functioning properly, he recalled. She went into cardiac arrest. Her lung collapsed as the medical team attempted resuscitation and her brain was deprived of oxygen for seven minutes, causing irreversible brain damage and gangrene, he said.

“After multiple tests and second opinions, I took her off the respirator and she died two days later,’’ Lawley told the panel. “My daughter deserved better. She didn’t get it. The health care system in Florida failed her.”

Lawley, 60, a certified public account, has no recourse. The state’s medical malpractice laws were rewritten by lawmakers in 2003 and included changes that prevent parents of adult children from recovering most damages. Shannon, a University of Florida graduate with a degree in chemistry, was 31 years old and had no spouse or children.

Now, Lawley wants the law changed, and he’s speaking out.

Bills moving quickly through the Republican-controlled Florida House, and under review in the state Senate, would expand Florida’s medical malpractice laws, adopt legal standards used in other states, and shield hospitals, doctors and nursing homes from lawsuits under certain conditions.

“Justice isn’t about money,’’ Lawley told the House subcommittee before it passed HB 827. “This is about finding the truth, and holding people accountable for their actions. If there is no accountability, you’ll never have responsibility.”

Holding negligence accountable has become secondary to the push to hold down health care costs this legislative session, as Florida lawmakers grapple with how to implement the federal health care reform act. Hospitals, doctors and health care providers are demanding more limits on liability, saying it is needed to attract new doctors and lower costs.

The Florida Chamber of Commerce and Associated Industries of Florida, two business groups heavily funded by the health care industry, last week announced their support of accepting federal dollars for Medicaid expansion, but only if certain conditions were met — including more medical liability and tort reform.

“There is some evidence we ought to take a look at some of these things,’’ said Sen. Tom Lee, R-Brandon, the Senate Judiciary Committee chairman who helped steer the 2003 reforms through the Senate. “But there’s no settled view of how it’s going to look.”

He said reduced Medicare and Medicaid reimbursement rates, and the need for more doctors, are contributing to the push by lawmakers to take another look at medical liability laws.

The health care industry has helped the effort, delivering millions of dollars in campaign cash into Republican coffers to help House Speaker Will Weatherford and Senate President Don Gaetz secure a GOP majority in the Legislature.

Rep. Matt Gaetz, R-Shalimar, the House bill sponsor, said the reforms are needed to scale back the use of defensive medicine and attract quality physicians.

"I bring this bill not to limit access to courts, not to limit remedies, but to make sure that Florida is a place that is fair in the litigation process for physicians,’’ he said.

Gaetz’s bill would limit lawsuits by tightening the standards for expert witnesses and make it harder to prove negligence when doctors are charged with failing to order proper diagnostic tests. But the most controversial provision would shield hospitals from liability if doctors hired as independent contractors are accused of negligence.

Opponents warn the bill will hurt patients because it will encourage hospitals to sign contracts with independent doctors to escape liability.

"To further insulate hospitals or doctors in this bill doesn’t sit well with me,’’ said Rep. Mike Clelland, D-Lake Mary. He said his sister died at age 24 because of what his family considered medical malpractice. "It’s an already very, very difficult and very regulated area of the law for justice to be served."

Gaetz acknowledged that because state law allows doctors to go without insurance, victims could not recover damages because it would be “like being injured by a poor person.” But if the hospital didn’t cause the injury, he argued, “one should not be able to sue them just because they happen to have assets.”

The Florida Justice Association, which represents trial lawyers, also questions the need for the proposed reforms. They say that in the last 10 years, medical malpractice insurance costs have dropped, the number of doctors practicing in Florida has risen by 30 percent, and lawsuits are down 50 percent.

“Are we fixing a problem that doesn’t exist?’’ asked Grant Kuvin, a lawyer from Morgan and Morgan in Orlando. “What we should be looking at is holding caregivers more accountable to keep premiums down.”

Bob White, president of First Professional Insurance Company, the state’s largest medical liability insurer, acknowledged that in the last six years, the cost of medical liability insurance in Florida dropped 36 percent.

“It has been the most profitable period in the history of our industry, because no one anticipated the drop in claims frequency,’’ he told the Herald/Times last week.

White, however, said rates still remain higher in Florida than the national average because doctors face a higher frequency of lawsuits compared to other states.

Sen. John Thrasher, R-St. Augustine, has filed a bill similar to Gaetz’s. The House subcommittee also approved HB 869 by Rep. Bill Hagar, R-Boca Raton. It would shield nursing home investors from being sued for damages. Opponents say the bill will encourage the trend because nursing homes owners and directors are increasingly restructuring their ownership arrangements to avoid liability.

For Lawley, who believes negligence killed his daughter, the bills “will shut off access to the courts for people like me.”

“I’m here, not because of sadness,’’ he told the subcommittee. “I’m here because I believe the citizens of Florida should have a right to justiceWithout access to the courts, I can’t get to the truth.”

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