Florida House and Senate Bill Action: May 2, 2011

House Bill Action

On Monday, May 2, 2011, the Florida House of Representatives considered certain insurance-related bills on Third Reading.

CS/CS/CS/CS HB 479 Relating to Medical Malpractice

CS/CS/CS/CS HB 479 Relating to Medical Malpractice by Representative Horner passed by a vote of 88-28.

Representative Horner introduced his bill as containing numerous statutory changes that would lessen medical malpractice litigation.

Two amendments were introduced on the floor.

Amendment 868029 by Representative Grant would provide for limits on attorney fees payable by an medical malpractice insurer.  Representative Grant stated that the amendment would streamline the litigation process.  After a statement from Representative Horner that the amendment was unfriendly, Representative Grant withdrew his amendment.

Amendment 853667, by Representative Soto would remove the provisions of the bill exempting hospitals from liability for acts committed by hospital-contracted providers (as opposed to hospital-employed providers) to maintain the status quo.  Representative Perman spoke in favor of the amendment, stating that a hospital should be responsible when it assigns a doctor to a patient and the patient has no choice in the selection.  After Representative Horner termed the amendment unfriendly, the amendment FAILED.

Debate on the bill ensued.  Representative Soto stated that the impact of this bill will be more individuals needing to receive Medicaid services since the bill will significantly limit the right of injured people to recover damages.  Representative Perman further stated that the bill would unfairly limit compensation.

Representative Hager spoke in support of the bill, indicating that it would address the documented shortage of medical providers in the State.

Representative Metz also supported the bill, noting that its  expert witness certificate provisions would provide accountability where none already exists; the provisions relating to ex parte communications with the claimant’s treating physicians would provide equal access to witnesses and promote case efficiency; and the hospital liability exemption would prevent hospitals from being sued simply because they have “deep pockets.”

Representative Steinberg reiterated the concerns of Representatives Soto and Perman that the hospital liability exemption would leave insured persons with little or no compensation for catastrophic injuries and the result would be the injured needing Medicaid services.

Representative Passidomo spoke in support of the bill, primarily the portion relating to protections for volunteer team physicians.

Representative Renuart stated that the bill will reduce the cost of liability insurance, provide accountability for out-of-state physicians who come to Florida to provide expert testimony and would reduce the cost of care.

Representative Kriseman questioned the need for this bill since, as a result of the 2003 medical malpractice reform effort, the number of medical malpractice lawsuits has decreased significantly, and medical malpractice insurance premiums have also decreased by a significant amount.  Moreover, insurer profits have increased, as has the number of physicians in the State.  Representative Kriseman stated that the impact of the bill would further limit the rights of those legitimately injured.  Representative Kriseman also opined that the protections for volunteer team physicians were too broad.

Representative Harrell stated that this bill represented a continuation of the medical malpractice reform process that started in 2003, which reduced insurance premiums by 36 percent, but that premiums still needed to be reduced further.

Representative Costello spoke in favor of the provision permitting doctors to veto settlements.

Representative Porth stated that Florida is not a friendly place to be a doctor, with high malpractice insurance premiums and low reimbursement rates.  Representative Porth opined that the bill would promote access to care.

In closing on his bill, Representative Horner reiterated that it would lower malpractice insurance premiums and that, even following the 2003 reforms, Florida still has the highest medical malpractice insurance premiums in the country.

The bill passed by a vote of 88-28 and is now in Senate Messages.

 

CS/HB 391 relating to Expert Testimony

CS/HB 391 by Representative Metz Relating to Expert Testimony passed the House by a vote of 83-33.

Representative Metz stated that the purpose of his bill was to conform provisions of the Florida Evidence Code relating to expert testimony to the Federal Rules of Evidence.  Under the bill, the admission of expert testimony would be governed under the test set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and its progeny (Daubert), as opposed to the standard currently utilized by Florida courts as set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. (1923) (Frye). 

Representative Kriseman spoke in opposition to the bill, stating that a switch to the Daubert standard would result in increased hearings, which would add to the court system’s already overburdened caseloads and that this was the wrong time to be changing standards.  Moreover, inasmuch as the Daubert test would apply to civil and criminal proceedings, Representative Kriseman stated that this would result in increased costs to State Attorneys and Public Defenders.

Representative Kiar asserted that there was no need to change standards because the Frye test works.  Implementation of the Daubert test would require judges to act as an amateur scientist in determining whether to admit expert testimony.  Furthermore, Representative Kiar opined that Daubert-style hearings could be cost-prohibitive.

Representative Weinstein stated that this bill does not represent a money issue and is needed to move Florida toward a more business-friendly environment, in order to provide a more predictable atmosphere.  While Florida has adopted most of the Federal Rules of Evidence, the expert testimony piece is one area Florida has yet to adopt.

Representative Eisnaugle supported the bill, stating that Daubert represents the new standard and that most states use Daubert or a Daubert/Frye hybrid.  Only ten states, including Florida, still use the Frye test, and that it is time to modernize Florida’s evidence rules.

Representative Gaetz stated that the bill would ensure that the right evidence gets to the jury. 

In closing, Representative Metz asserted that the bill would empower judges to be gatekeepers as to what expert testimony was presented to the jury, would provide consistency and fairness, and would appeal to the business community.

The bill passed by a vote of 83-33 and is now in Senate Messages.

 

CS/CS/HB 1227

CS/CS/HB 1227 relating to Surplus Lines Insurance by Representative Hager was temporarily postponed and not taken up during today’s Session. 

 

Senate Bill Action

CS/HB 1087 relating to Persons Designated to Receive Insurer Notification

Also today, the Florida Senate passed CS/HB 1087 relating to Persons Designated to Receive Insurer Notification by a vote of 38 to 0. CS/HB 1087 was substituted for CS/CS/SB 1252.

The bill changes the designated recipient of certain insurance policy notices from the “named insured,” including all persons named on a policy, to the “first-named insured” as the primary contact for administrative matters on the policy.  The bill also bars an applicant from receiving a license due to a felony conviction. Further, it authorizes an insurer to deliver workers’ compensation payments via a prepaid card.

CS/HB 1087 was previously passed by the House of Representatives by a vote of 111 to 4.

The bill will now be sent to Florida Governor Rick Scott.  If signed into law by the Governor, the legislation becomes effective on July 1, 2011.

To access a copy of CS/HB 1087, click here.

 

CS/SB 1590 relating to Medical Malpractice Actions

CS/SB 1590 relating to Medical Malpractice Actions was heard in the Senate today on Second Reading.  The bill was amended, ordered engrossed, and rolled over to Third Reading.

Fifteen amendments to the bill were filed.  Amendments ADOPTED by the Senate on Second Reading include:

• Amendment 101794, filed by Senator Hays, provides that deceptive or fraudulent expert witness testimony related to the practice of osteopathic medicine would constitute grounds for denial of a license or disciplinary action.  The amendment changed the original bill, which included “misleading” testimony as a ground for denial or disciplinary action.
• Amendment 372048, filed by Senator Hays, provides that deceptive or fraudulent expert witness testimony related to the practice of dentistry would constitute grounds for denial of a license or disciplinary action.  This amendment changed the original bill, which included “misleading” testimony as a ground for denial or disciplinary action.
• Amendment 391804, filed by Senator Hays, provides that a volunteer physician is not liable for any civil damages unless his or her care or treatment was rendered in a wrongful manner.
• Amendment 525928, filed by Senator Hays, provides that deceptive or fraudulent expert witness testimony related to the practice of medicine would constitute grounds for denial of a license or disciplinary action.  This amendment changed the original bill, which included “misleading” testimony as a ground for denial or disciplinary action.
• Amendment 651380, filed by Senator Hays, requires that the Florida Department of Health (“DOH”) approve an application for an expert witness in the field of osteopathic medicine within 10 business days after receipt of a completed application.  Previously, the bill required approval within seven days.
• Amendment 661722, filed by Senator Hays, requires that the DOH approve an application for an expert witness in the field of dentistry within 10 business days after receipt of a completed application.  The bill previously required approval within seven days.
• Amendment 729322, filed by Senator Hays, requires that the DOH approve an application for an expert witness in the practice of medicine within 10 business days after receipt of a completed application.  The bill previously required approval within seven days.
• Amendment 730546, filed by Senator Garcia, returns the burden of proof in an action for damages alleging a breach from prevailing professional standard of care to the current law.
• Amendment 831356, filed by Senator Flores, is a substitute amendment for Amendment 947994. The substitute amendment removed the language from the bill that would allow for ex parte interviews of treating health care providers of a prospective defendant without notice to or the presence of the claimant.

In debate, Senator Hays explained that allowing defendants an opportunity to speak with the treating health care providers created a level playing field.  Senator Joyner was outraged that a defendant would have the opportunity to speak with her treating physicians without her knowledge and without her or her attorney present.  After debate, the substitute amendment was adopted by a vote of 26 to 13.

• Amendment 939424, filed by Senator Diaz de la Portilla, removes the language from the bill that eliminated the liability of a health service organization, health maintenance organizations, hospitals, or prepaid clinics for the medical negligence of a subcontracted health care provider.

There were many questions asked regarding this amendment and discussion ensued among Senators regarding whether the hospitals should be “off the hook” for the health care providers that they subcontracted.  Senator Storms remained firm that for-profit hospitals were more concerned with their bottom lines and would hire cheaper labor if they knew that they would not be liable for the actions of the subcontractor. Senator Hays maintained that hospitals are in the business to provide medical services and would not alter their hiring behavior based on this provision.

The following amendments FAILED on Second Reading:

• Amendment 902516, filed by Senator Storms, would authorize the court after a finding that an expert witness knowingly provided misleading, deceptive or fraudulent testimony to certify such findings to the applicable agency in the health care provider’s home state and to the appropriate state attorney for prosecution. 

Senator Storms argued that the DOH has no money to review the applications and addressed the inadequacies of the DOH  in properly reporting and sanctioning the health care providers they currently oversee.  Senator Hays agreed with Senator Storms that there are current problems with the DOH, but that this amendment does not correct those issues.  The amendment failed on voice vote.  

• Amendment 178504, filed by Senator Storms, would eliminate the language of the bill creating a process for the DOH to issue expert witness certificates authorizing a dentist who holds an active valid license to practice in another state to provide expert testimony in this State.

Senator Storms “cut and pasted” her previous argument in the remainder of her amendments.

• Amendment 183118, filed by Senator Storms, would eliminate the language of the bill creating a process for the DOH to issue expert witness certificates authorizing a physician who holds an active valid license to practice in another state to provide expert testimony in this state.
• Amendment 359742, filed by Senator Storms, would eliminate the language of the bill creating a process for the DOH to issue expert witness certificates authorizing a physician in the field of osteopathic medicine who holds an active valid license to practice in another state to provide expert testimony in this State.

 

 

Should you have any questions or comments, please contact Colodny Fass.

 

 

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