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'Bold' Plan Would Replace Lawsuits

Leon County Judge John Cooper on June 30, 2022, in a screen grab from The Florida Channel.
The Florida Channel
Leon County Judge John Cooper on June 30, 2022, in a screen grab from The Florida Channel.

Imagine a medical-malpractice system that resolves patients’ complaints of harm quickly, without rancor or legal fees.

Imagine a system that would encourage the injured patient and doctors to discuss the event to reduce the risk of future mistakes.

Imagine a system that allows doctors to say “I’m sorry,” without a legal risk, and that allows the patient to reply, “I know you didn’t mean to hurt me. Let’s figure out how to prevent it from happening again.”

If you think such a system would draw universal hurrahs, you weren’t watching the House Civil Justice Subcommittee on Monday. It  held a workshop on House Bill 897, which would replace the current laws on medical malpractice with a “Patients' Compensation System.”

“This is not a no-fault system, it’s a no-blame  system,” said its sponsor, State Rep. Jason Brodeur, R-Sanford. “It will revolutionize the practice of medicine.”

Heavy-hitter lobbies disagreed, including the Florida Medical Association, trial attorneys, big business and the leading insurer for medical-malpractice policies, First Physicians Insurance Co., a Jacksonville-based subsidiary of The Doctors Co.  The only supporters were a non-profit group formed around this issue, Patients for Fair Compensation, and a few researchers.

That intrigued State Rep. Dennis Baxley, R-Ocala, who chairs the Judiciary Committee. He said that if everyone who makes money in the system dislikes the proposal, "you may be onto something.”

How would it work?

The Patients' Compensation System would set up a state administrative process outside the court system to handle malpractice compensation claims for patients who wanted to take that route. (Use of the alternative system would be voluntary.)

A panel of experts in the appropriate medical field would consider the validity of the complaint, and if there had indeed been an avoidable injury, it would be sent on to a separate office. There, the staff would check a compensation table and write a check.

Such a system would cut costs several ways, Brodeur told the subcommittee.

First, it would remove or reduce expenses now eaten up by insurers’ profits and by litigation – fees for attorneys, expert witnesses, court reporters, and so on.

Equally important, he said, it would reduce “defensive medicine,” the ordering of unnecessary tests and procedures to provide a defense in case of a bad outcome.

Defensive medicine is pervasive, according to a study by Florida State University Professor Jay Rayburn on behalf of Patients for Fair Compensation, who attended the hearing. His report, based on a survey of 321 Florida physicians,  says that 88 percent of them admitted practicing defensive medicine  and that 69 percent of them thought defensive medicine hurts patient care.

Rayburn reported that the physicians attributed about one-third of health-care costs to defensive medicine; if that is in the ballpark, it would account for $40 billion a year in waste.

Access to courts is often blocked

Another failure of the current tort-based medical negligence system, said Brodeur, is that it leaves out most of the patients who are harmed because their damages don’t rise to a level that would likely bring a settlement or judgment high enough to leave anything for the patient and attorney after covering costs.

He said lawyers won’t take even a “slam-dunk case” unless the damages will be at least $250,000. Malpractice attorneys told Health News Florida the same thing in an article last month.

Because non-economic damages – “pain and suffering” – are capped, the economic damages have to be substantial to make a case attractive to attorneys, he said. That means it is difficult to bring a case when the injured patient wasn’t a high wage-earner, and it especially discriminates against housewives, children and the elderly, Brodeur said.

One provision of his bill is that the total spending in the system could be no higher than it is now. Given that many patients who are hurt by avoidable errors never make it into the court system, the number of claims would go up, according to a study by the actuarial consultants Aon Group. But enough costs would be taken out of the system that the dollar value of claims could also rise, Aon said.

No shortage of opponents

Bob White, president of the largest malpractice carrier in Florida, First Professionals Insurance Company, disputed the figures in the Aon study. He cited other research projecting that claims could be two to three times as numerous as Aon forecast.

“While we don’t like the current tort system and would like to take our doctors out of it, there has to be a better-thought-out plan,” White said.

Several others also opposed it.  Associated Industries of Florida lobbyist Tammy Perdue said that businesses have too much on their plates with the implementation of the federal Affordable Care Act to focus on much else.

David Christian of the Florida Chamber of Commerce objected to creation of a bureaucracy to implement the plan, and predicted it would “drive doctors out of the state in droves.”

Rebecca O’Hara of the Florida Medical Association said that organization had a fierce debate about the Patients Compensation System, with some  board members passionately in favor and others just as fervently opposing it. The Legislature shouldn’t do anything on it until it can be studied further, she said.

‘We came…to make a difference’

Brodeur’s bill, which has a Senate companion, drew strong support from State Rep. Cary Pigman, an emergency room physician from Avon Park. He said the only way to improve the quality of care while reducing costs is to remove medical errors from a confrontational litigious environment. Instead, he said, all of those involved in a case should be able to discuss it to figure out what went wrong.

“The vast majority of cases where harm was done (to patients), we’re not even looking at,” Pigman said.

Brodeur acknowledged his bill was “bold,” maybe even a bit “radical,”  and that it may take more than one session to get it passed.

But he won’t give up easily. “We came to the legislature to make a difference,” he said. “This bill makes a difference.”

Carol Gentry, founder and special correspondent of Health News Florida, has four decades of experience covering health finance and policy, with an emphasis on consumer education and protection.