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Thu March 21, 2013
Courthouse Steps Getting Steeper for Patients, Families
In Florida, medical-negligence cases already take more time, money and evidence to bring than any other kind of civil suit. Now the Florida Legislature is considering raising the bar again.
Shannon Lawley was a healthy 31-year-old when she got sick and sought help at a Brevard County emergency room last year. Her father, Michael, says she died there because of mistakes.
"She went in the gifted program, she was a Bright Futures scholarship winner, graduate of the University of Florida, she had a degree in chemistry," he said. "Her life was just beginning."
Michael Lawley says the pathologist told him his daughter died after being given the wrong drug. But he can't find out more about it because he can't file suit, which would give his attorney subpoena power. He can't sue because Florida law doesn't allow parents of adults to file a wrongful-death case in medical malpractice cases -- only a spouse or children. And Shannon wasn't married. That matters because parents can file suit in other kinds of wrongful-death cases, such as negligent or drunken driving; but the medical-malpractice law is different.
"I don't have access to the courts," Lawley told a House committee earlier this month. "Yet I believe the truth deserves to be told."
He drove from Melbourne to Tallahassee to ask that the law be fixed. But the lawmakers he spoke to instead backed a bill that would make it even harder to sue a doctor or a hospital.
Rep. Matt Gaetz, a Panhandle Republican, explained his bill: "The objective there is to limit the practice of defensive medicine, which costs somewhere in the neighborhood of about $200 billion nationally and certainly has its impact in Florida."
Among other things, his bill would raise the standard of proof and limit who can serve as an expert witness. And it would protects hospitals from being sued for mistakes by doctors working on contract, such as pathologists, radiologists and those who staff the emergency room.
If Gaetz's bill had been in effect a dozen years ago, it would have shut the courthouse doors to people like Jacksonville pastor Carmen Johns, according to the lawyer who handled her case.
She resorted to surgery after her back pain became too much to bear, she told the House Civil Justice Subcommittee. But it didn't turn out well, she said:
"When I woke up from that back surgery, I could not see. I was totally blind."
She found out what happened later. It turned out that the physician in charge of her anesthesia had left others to carry it out -- a "revolving door" that included students, she said.
The blindness took a toll on her ability to do her pastoral work, she said. She couldn't easily find people in social gatherings at the church, and she couldn't see the faces of the parishioners she counseled.
It also put her in danger, Johns said, even when she received help from her guide dog or a friend. Once she missed a step on a concrete staircase and fell all the way down, suffering a bad concussion, she said.
"I have never been able to see any of my grandchildren, they've all been born since that time," Johns said. "And every grandmother's wish is to be able to play with her grandchildren. I can't see the joy on their faces when they open a Christmas present."
(Rep. Gaetz said at the hearing where Johns spoke that his bill would not have affected her case. But the attorney who represented her, James Gustafson, said it would have. It appears to depend on the employment category of the person who made the mistake, which was not made clear at the hearing.)
Tampa attorney Anthony Martino says there's no need to make it harder to sue. It already costs "six figures" -- at least $100,000 -- to bring a case, and that's more than most law firms can afford to risk, he said.
"There are very few firms that remain and still do plaintiff's medical negligence cases," Martino said. "The costs and the time and the hurdles that we have to go through to win for our clients is the reason why many firms have not continued in the medical negligence field."
By all accounts, malpractice rates are down and insurers' profits are way up since the Legislature overhauled the system 10 years ago and tweaked it repeatedly since then. To Rep. Gaetz, that means the Legislature's strategy of making it harder to sue is working.
"The best way to stop folks from having to endure this pain is to increase the quality of care that we have in Florida and the way that we do that is to become one of best states in the country for a person to come and practice medicine," said Gaetz, R-Fort Walton Beach. "And that's what we're doing, and I think we ought not stop now and raise the white flag of surrender."
Orlando attorney Scott McMillen warns this policy will backfire.
"They say this is so we have good quality doctors and it does the opposite," he said. "It announces to the quacks and hacks all over the United States, 'Come on down to Florida. You can do whatever you want to here and you can't be held liable for it.'"
The House Civil Justice Subcommittee passed Gaetz's bill (CS/HB 827) nine votes to four on March 6. It now awaits action in the Judiciary Committee. The major parts of the bill include:
--Raising the "standard of proof" in certain cases. The standard in civil cases currently is "the greater weight of the evidence," which is below that in criminal courts, "beyond a reasonable doubt." For certain medical negligence cases involving allegations of failure to order a test, the Gaetz bill would raise the standard of proof to somewhere in between, "clear and convincing evidence." That is the same standard that applies in complaints against health-care professionals that go before an administrative law judge.
--Changing the qualifications of an expert witness. Currently, a health professional practicing in a "similar" specialty can sign statements or testify as expert witnesses, but the bill would require the specialty to be the same. Supporters say this will improve the quality of the witnesses; opponents say it will simply add to the cost of bringing a case because they'll likely have to go outside the community or even the state to find an expert witness willing to become involved.
--Shielding hospitals from negligence suits in errors committed by independent contractors. Supporters say this simply extends the same protection to hospitals that now applies to HMOs. Opponents say that medical negligence that occurs in a hospital usually involves more than one person -- for example, nurses as well as doctors -- so a shield is not appropriate; if it passes, they say, hospitals will be tempted to make everyone a contractor.
-- Making it easier for doctors who think they may be sued to find out what subsequent treating physicians are saying about them. Supporters say it evens the playing field between plaintiff and defendant; opponents say it violates a patient's privacy and subjects the subsequent treating physician to intimidation.
Health News Florida is a service of WUSF Public Media. Contact Carol Gentry at 813-974-8629 (desk) or 727-410-3266 (cell), or by e-mail at email@example.com.