Florida passes bill limiting doctors' liability share

The medical community hails the measure, which it says would rid plaintiffs of "deep-pocket" targets.

By Amy Lynn Sorrel — Posted April 24, 2006

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Florida physicians are just one step away from having to pay only their share of damages in liability lawsuits after the Legislature passed a bill March 30 to abolish the 33-year-old joint and several liability statute.

The measure must be signed by Gov. Jeb Bush to become law. "I look forward to signing this important legislation," Bush said. The bill represents a positive step toward countering "abusive litigation," he said.

The legislation applies to economic damages in medical and other liability cases. It builds on prior tort reforms that eliminated joint and several liability for pain and suffering awards.

Under the new measure, defendants found negligent would be responsible for only their percentage of fault. Previously, with joint and several liability, defendants could be held individually responsible for the entire amount of a judgment, regardless of their portion of guilt.

Florida is one of 21 states that the American Medical Association has declared in crisis because rising insurance premiums are driving doctors to retire early, move their practices out of state or give up performing high-risk procedures.

The medical community says the change would help stem the proliferation of medical liability lawsuits by eliminating a source of "deep pockets" for plaintiffs seeking to collect large monetary awards.

"We view this as a victory, and it gives a fairness approach" to the legal system, said Troy Tippett, MD, president of the Florida Medical Assn., which supported the bill.

The FMA lobbied to preserve a provision that allows defendants in medical liability cases to add others to the verdict form so the jury can decide whether to assign proportionate fault to their actions, he explained. An amendment supported by trial attorneys to eliminate the provision was defeated.

The Florida Hospital Assn. joined the coalition in support of the bill. The measure "will make insurance a little more predictable, and it should create a better climate in Florida," said FHA General Counsel Bill Bell.

It also will help doctors and hospitals evaluate cases and, if necessary, expedite settlements, he said. It is unlikely that the change will affect whether hospitals require staff doctors to carry medical liability insurance, he added.

The move to several liability may continue the trend of physicians in high-risk specialties in southern Florida choosing to "go bare," or self-insure, according to Marc Singer, a physician financial adviser with Singer Xenos Wealth Management in Coral Gables, Fla.

But many doctors in high-risk specialties in northern Florida, where hospitals require them to carry insurance, still might be vulnerable and likely will continue to experience rising insurance rates, Singer said.

Challenge not expected

Legal experts say that the several liability standard will stick and do not expect any constitutional challenges, since previous limitations already had passed the test.

The Florida Academy of Trial Lawyers, which opposed the legislation, was not available for comment.

With the switch, Florida joins 30 other states with several liability laws, according to 2005 data from the AMA. Fourteen states apply joint and several liability standards to economic and noneconomic damages, and five states apply the rule only to economic damages.

In spite of the victory, Florida doctors say there is still work to be done.

"[Several liability] is another building block to tort reform, but the biggest issue remains a cap on noneconomic damages, which is the gold standard," Dr. Tippett said.

In 2003, Florida passed a $500,000 cap that applies to physicians, and a $750,000 limit that applies to nonpractitioners. Both award restrictions include broad exceptions, which renders them "of little value," Dr. Tippett said.

Meanwhile, next on the FMA's list of priority reforms is a certificate-of-merit statute that would require plaintiffs filing medical liability lawsuits to include an affidavit from a physician expert testifying to the merits of the claim, Dr. Tippett explained.

A proposed bill was being debated in the House at press time.

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State trends

A majority of states have enacted tort reforms that eliminate joint and several liability for economic and pain and suffering damages. Some states have exceptions to the standard, most often involving cases of intentional malice or those in which a defendant is found to be 50% or more at fault.

States with several liability: Alaska, Arizona, Arkansas, Colorado, Connecticut, Florida, Georgia, Hawaii, Idaho, Kansas, Kentucky, Louisiana, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, North Dakota, Oklahoma, Oregon, Pennsylvania, Tennessee, Texas, Utah, Washington, West Virginia, Wisconsin, Wyoming

States with joint and several liability: Alabama, Delaware, District of Columbia, Illinois, Indiana, Maine, Maryland, Massachusetts, Michigan, North Carolina, Rhode Island, South Carolina, South Dakota, Vermont, Virginia

States where joint and several liability applies only to economic damages: California, Iowa, Nebraska, New York, Ohio

Source: American Medical Association

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