Senate Judiciary moves bill to end some med mal suit immunity

Senate Judiciary moves bill to end some med mal suit immunity

It also revises the limits on noneconomic damages for personal injury or wrongful death arising from medical negligence

Sen. Clay Yarborough

A Senate panel has agreed to cap noneconomic damages in medical negligence claims despite hours of testimony by victims and grieving survivors.

The Senate Judiciary Committee on Monday voted 8-2 to approve SB 248 by Chair Clay Yarborough, R-Jacksonville.

Yarborough sponsored a “strike all” amendment that would impose a cap of $500,000 per claimant, regardless of the number of health care practitioners who are liable; a $750,000 cap on “non-practitioners,” and a $150,000 cap for practitioners in emergency cases.

Yarborough said the amendment was necessary to get stakeholders to agree to the bill’s original intent — eliminating an exemption in existing law that makes entire classes of plaintiffs ineligible to collect damages.

“Implementing a ban on certain individuals…is a clear injustice,” Yarborough said. “I knew that we would need to find a way to thread the needle.”

Existing Florida law is unique in that it limits the awarding of punitive damages to a surviving spouse or minor children when a person 25 or older dies from medical negligence.

Some patient advocates have called the exemption Florida’s “free-kill” law.

More than a dozen opponents of the proposal, some in tears, described loved ones who were killed or catastrophically injured by medical negligence.

Sabrina Davis said her father, 62-year-old Navy veteran Keith Davis, died three years ago in a Tampa hospital from a misdiagnosed blood clot.

Because she was older than 25, Davis said she was unable to hold the responsible parties accountable.

“This was not a lack of knowledge, but disregard for my father’s life,” Davis said. “You cannot compare a small stack of medical malpractice premium rates to the service my father gave to this country.”

Bipartisan attempts in the past several years to repeal the exemption have failed. The Florida Medical Association, insurers, and business groups warn that a repeal would send malpractice premiums skyrocketing and put Florida patients at risk by exacerbating a doctor shortage.

According to a staff analysis, a recent Office of Insurance Regulation study of the top 10 states for physician malpractice rates found that Florida in 2022 was “the highest of the 10 states in seven of the eight examples.”

Another study showed that doctors in Miami-Dade County paid the highest malpractice rates in the country in 2022 for internal medicine, general surgery, and OB/GYN coverage.

Brian Johnson, general counsel for the Texas Alliance for Patient Access, said a $250,000 constitutional cap that voters approved in his state 20 years ago led to a 65% reduction in medical malpractice rates.

“The caps resulted in doctors coming back to Texas,” Johnson said. “I personally know Florida physicians who are practicing in Texas because we have a better liability environment.”

Opponents of the caps noted that the Florida Supreme Court in a 2014 ruling in “McCall v. United States of America,” ruled that caps lawmakers imposed in 2003 violated equal protection rights.

Yarborough said he was confident the proposal would withstand legal challenges, noting that it makes legislative findings that establish a “critical state interest.”

“State and federal courts around the country have addressed the issue and determined the caps are constitutional,” he said. “We have 31 or 32 states that have caps…we would be well among our peers to go about this.”

Critics also insisted that previous “tort reform” efforts failed to give doctors the premium relief that lawmakers promised. They also say the medical malpractice industry is strong.

A Florida Justice Association release points to an Office of Insurance Regulation study that shows “Between 2004 and 2023, Florida medical malpractice insurance premiums have only gone up 6.1%. This includes the period when caps were repealed (2014-2017).”

Jacksonville attorney Megan Sowell warned lawmakers that they were putting a price tag on the value of human life.

“To put a price on the death of a 3-year-old girl at $500,000 is shocking,” she said. “To put a price on a stay-at-home mother…is shocking, and it’s wrong and I encourage all of you to pursue justice.”

Panama City attorney Waylon Thompson noted that the bill would cap recovery for Medicaid patients at $300,000.

“Are you going to be telling the poor people of our state that you’re not worth the same as other folks?”

Senate Democratic Leader Lauren Book praised Yarborough for what she said were his sincere efforts to work with all sides. But she said she could not support the bill as written and offered an amendment that would have stripped out the caps.

“I can’t support trading one injustice for another,” she said.

The amendment died on a voice vote.