Florida Tort Reform: The Elephant In The Room

While there are congressional and gubernatorial elections taking place throughout the nation, one of the most hotly contested races is in Florida, between Gov. Rick Scott and former governor Charlie Crist. With the two candidates diverging dramatically on most issues, the issue of tort reform, and more specifically, medical tort reform, is at the heart of this election

Rick Scott’s Reforms

The major piece of tort reform legislation that has been passed on Scott’s watch is the reform to Florida’s Personal Injury Protection (PIP) or no-fault auto insurance law. In 2012, the law changed so that people who had been injured in car accidents now had only “two weeks to seek initial treatment” – this is yet another handout to the insurance industry.  In addition, the bill alienated many health care professionals, especially massage therapists and acupuncturists, who were eliminated from receiving PIP payments that are now limited to physicians, osteopaths, dentists and chiropractors.

In addition, Scott is also trying to eliminate the area of medical malpractice.  In 2013 he signed a bill aimed to replace the state’s standards for expert medical testimony. The standard had been that of Frye v. U.S., a case from 1923, which stated that the method by which relevant evidence was obtained must be “generally accepted” by experts in that field. With Scott’s bill, the standard was changed to that of Daubert v. Merrell Dow Pharmaceuticals (1993), which is somewhat more complex, allowing a trial judge to entertain a variety of factors in determining the validity of an expert’s opinion.  Critics argue this will make medical expert testimony even harder to obtain than it already is.   In addition defense lawyers are now free to conference and speak with all of the Plaintiff’s treating physicians.  In simple terms, an offending doctor’s lawyer can now call and speak to the injured Plaintiff’s physicians and try to discourage them from testifying for the Plaintiff.

The Future

As medical malpractice lawyers and citizens of Florida, we are hopeful that Charlie Crist will prevail.  Crist governed Florida from 2007-2011 as a Republican, but switched parties in 2012, acknowledging that the Republican party had moved too far to the right.

In March 2014, the Florida Supreme Court struck down the cap on non-economic damages in medical malpractice death cases. Non-economic damages are the damages in a medical malpractice case awarded for losses that cannot be made material – for example, for pain and suffering, or loss of consortium. The Court alleged that the law, as it stood, violated the equal protection rights of Floridians, and casted doubt on whether or not the ‘medical malpractice crisis’ that allegedly provoked the cap in the first place ever existed.  Thankfully the Florida Supreme Court’s decision will allow victims to be justly compensated. However if Rick Scott wins, there is talk of a replacement law being written and passed.

If you have a case and need help getting just compensation, Kaire & Heffernan LLC can help. We stay informed, we know what the law is, and can protect  your interests accordingly. Contact us at our Miami offices for a free consultation today.

 

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