Tort Reform isn't the solution to rising insurance rates

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Want proof that tort reform isn’t the solution to raising insurance rates? Look no further than Florida. We already have some of the most severe tort reform in the Country, and rates in Florida are still rising.

Why? Because insurance increases are due to industry and economic factors that tort reform does not address.

Just like today, in the late 1970s and late 1980s downturns in the economy, falling stock markets and irresponsible underwriting produced dramatically increased medical malpractice insurance rates. Instead of seeking insurance solutions doctors used their political muscle to pass “tort reform” measures that stripped patient rights.

After a decade of rate stability due to good economic conditions and a bull market, rates are again rising. Demands are being made for even more limits on “non-economic damages”, the compensation allowed those disabled and the families of those killed by medical errors.

Doctors who claim there is no limit to these “non-economic damages” in Florida are apparently ignorant of the laws they seek to change. Among the many unfair limits already in place:

• The Florida Birth Related Neurological Injury Compensation Act provides that babies negligently brain damaged during labor and delivery cannot sue. Despite a lifetime of disability, often severe, they receive no compensation from the hospital or doctor causing their injury. Severely disabled children had their rights striped away by “tort reform” in 1988 but it has not slowed the increase in malpractice rates.
• If a medical provider negligently kills an unmarried adult that has no minor children, their survivors cannot sue. If you are an unmarried adult, a medical provider will have no obligation to compensate your loved ones if you are killed by malpractice. Under Florida’s malpractice law, “widows are worthless.”
• In every other medical malpractice case in Florida, if a defendant demands arbitration non-economic damages are “limited to a maximum of $250,000 per incident and shall be calculated on a percentage basis with respect to capacity to enjoy life, so that a finding that the claimant’s injuries resulted in a 50% reduction in her or her capacity to enjoy life would warrant an award of not more than $125,000 non-economic damages.” A patient rejecting arbitration can go to an expensive jury trial with cap of only $350,000. These are the most severe caps in the nation and have not been adjusted for inflation since their enactment in 1988.
• Doctors who provide negligent care to indigents cannot be sued.
• Doctors who work for the government cannot be sued and government owned hospitals can only be sued for $100,000 per person, a limit on both economic and non-economic damages.
• Every medical malpractice award in Florida is subject to “close scrutiny” by the Courts to insure reasonableness, and judges reduce excessive jury awards. Money the patient received from others, including disability insurance or other “collateral sources” reduces their recovery. Awards for future loss can be paid over time.
• Doctors and hospitals providing emergency services can only be sued if they acted in “reckless disregard for the consequences” of their actions, a very low standard of care adopted in 1988.
• Joint and several liability was abolished in 1999, part of a tort reform measure our current governor promised would reduce insurance rates. Thus, negligent doctors can escape liability by blaming others (usually the nurses).
• Before filing a claim the patient’s lawyer must have experts review the case and testify to negligence. If an unsupported case is filed the lawyer is personally liable for the doctor’s attorney’s fees.

When it comes to “tort reform” Florida has “been there, done that” and it hasn’t solved the insurance rate problem. More tort reform will only injure patients, protect negligent doctors and insure that next recession we’re right back where we are today.

Arbitrary “one size fits all” limits and caps are unjust, unfair and ineffective in lowering insurance rates.

Doctors should realize their emotional response to lawsuits is being used to help insurance companies avoid real reform, the insurance reform that will stabilize rates and, more importantly, the compensation reform that will allow doctors and hospitals maintain reasonable revenues.

The tools of scientific analysis that doctors mastered so well during their education would lead them to the right conclusion about the cause of their current problems, and the proper solution: According to the Robert Wood Johnson Foundation, “studies that take a retrospective look at the malpractice reforms of the 1970s and 1980s are casting serious doubt upon the efficacy of tort reform in addressing the problem of high malpractice insurance rates.”

If you don’t believe it, just look at Florida.

Donald M. Hinkle is a Board Certified Civil Trial Lawyer who has spent over 20 years representing the victims of negligence.