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After getting shot down last year, the University of Miami is waging a battle in the Legislature again this year to secure sovereign immunity protection in malpractice suits for its medical school physicians who work at the public Jackson Memorial Hospital. But the proposal is certain to face bruising opposition. The Academy of Florida Trial Lawyers says blocking the proposal is one of its top legislative priorities this year. And UM’s allies in the Legislature may tie their support to public accountability measures that the university is likely to find unpalatable. On top of that, the proposal will likely raise questions about equal treatment of privately insured and indigent patients and whether all private medical schools and hospitals that serve the poor — such as Nova Southeastern University’s osteopathic college — should receive similar protection from malpractice claims. The medical school at UM, a private university, contracts with Jackson Memorial Hospital in Miami to provide medical students as staff physicians. It wants its medical school faculty to receive immunity from malpractice liability in treating patients at Jackson Memorial, arguing that its doctors are providing a public benefit. UM interns and resident physicians at Jackson already enjoy sovereign immunity as employees of a government-operated institution. “This is incredibly important to our community and to the quality of care at Jackson Memorial Hospital,” said state Rep. Marcelo Llorente, D-Miami, who plans to sponsor the bill. “The relationship between UM and Jackson is strained because of the amount of money UM must put in reserve for lawsuits. If the relationship ceases to exist, that could really hurt the residents of Miami-Dade County.” The current version of the draft bill would provide sovereign immunity to the UM medical school and its doctors in treating all patients at Jackson Memorial, according to Ron Book, the lobbyist for UM and the Public Health Trust, which oversees Jackson Memorial. An earlier version covered only Medicaid patients, but that was changed because of constitutional concerns about equal treatment. Opponents, led by the Academy of Florida Trial Lawyers, contend that private institutions are not entitled to sovereign immunity. They also argue that extending sovereign immunity to UM doctors at Jackson would leave the mostly poor patients treated at Jackson with no legal recourse if they are injured during the course of treatment. “This is one of our three main legislative fights this year,” said Jacqui Sisto, spokeswoman for the Academy of Florida Trial Lawyers. The issue appears to be receiving support from the Miami-Dade legislative delegation, which heard a pitch from Book Tuesday. State Rep. Gaston Cantens, R-Miami, said he strongly supports the proposal. “The relationship between the University of Miami and Jackson Memorial Hospital is one we need to protect,” he said. Book said he has lined up a sponsor in the Senate as well, but declined to name the sponsor. Several sources identified state Sen. Rudy Garcia, R-Hialeah, as the potential sponsor of the bill. Garcia did not return calls for comment. State Rep. Dan Gelber, D-Miami Beach, who is a practicing attorney, hasn’t taken a position yet. “This is a very complex issue and we need to make sure the remedy addresses the problem, and that there are no unintended consequences,” he said. “I need to see the legislation first.” Despite the support of Gov. Jeb Bush and House Republican leaders, UM failed last year to get sovereign immunity included in the massive GOP-sponsored malpractice bill. UM President Donna Shalala had served on Bush’s malpractice task force, and had voted in favor of the governor’s controversial proposal to cap noneconomic damages. The proposal failed in part because it was unclear how the Legislature could extend sovereign immunity to UM without also granting it to Nova Southeastern, whose osteopathic college provides medical staffing for the public North Broward Hospital District. In addition, private hospitals around the state argued that they provide a public service by treating Medicaid and Medicare patients and that they, too, should receive sovereign immunity in treating such patients. Book said this year’s bill will not differ much from last year’s, but the difference will be the strategy, education and Book himself, who was hired last year to represent the Public Health Trust. “I don’t think there was a clear understanding of this last year,” he said. “You have to educate people.” At an emergency meeting on Monday, the executive committee of the Public Health Trust approved the proposal by a 6-1 vote, with only lawyer Michael Kosnitzky voting no. Kosnitzky complained that the public was not notified of the agenda item. UM and the Public Health Trust have been battling for the last few years over the amount the trust pays UM for providing medical staffing and overseeing Jackson Memorial’s medical care program. UM has sought $17 million to $20 million more a year from the trust, in addition to the $70 million it receives now. UM claims it is losing money on the Jackson Memorial arrangement because of high legal costs associated with caring for Medicaid patients. The medical school said last year that the rising cost of medical malpractice siphoned cash from the medical school’s reserves. In fiscal year 2002 the school incurred about $32 million in medical malpractice costs, and it incurred about $50 million in costs for fiscal year 2003, a school representative said. The trust turned down UM’s request for the extra money. Critics, including Kosnitzy, have said UM is charging the trust too much and has refused to open its books for public scrutiny. Book already has lined up Rep. Llorente as a tentative sponsor for the UM sovereign immunity bill in the state House. A final draft of the bill was expected to be ready by late Tuesday, following meetings with the bill’s supporters and the school’s dean and the Miami-Dade legislative delegation. Llorente said the bill was “very much a work in progress.” In an interview, Book said that private medical schools that staff public hospitals in other states already enjoy sovereign immunity. “University of Miami is the only medical school in the country that is treated like this,” Book said. He cited Emory University in Atlanta and Baylor University in Houston as private medical schools that receive sovereign immunity for their work at public hospitals. But representatives for Emory and Baylor dispute that. Emory’s medical school used to have sovereign immunity. But the Georgia Supreme Court struck that down in a 1994 ruling, spokesman Ron Sauder said. Baylor’s medical school has limited sovereign immunity, capping damages at $250,000 per malpractice incident, said James Banfield, Baylor’s director of risk management. Baylor doctors and residents, however, do not receive sovereign immunity. “I’m sure our lobbyist tried to get some broad protection in the 1990s, but it wasn’t successful,” Banfield said. UM contracts with Jackson Memorial Hospital and several nearby specialty clinics to provide medical staffing. Under the current affiliation agreement, the trust indemnifies UM and its faculty doctors for liability only in cases of nonpaying indigent patients, but not for cases involving Medicare, Medicaid, or privately insured patients. If UM had sovereign immunity, liability for the school and its faculty physicians would be capped at $100,000 or $200,000 per case, depending on the nature of the injury. Plaintiffs who won larger verdicts and wish to collect would have to convince the Legislature to pass a bill authorizing the full damage payout. Book said UM could use the savings to enhance its educational mission. Book said the bill would grant immunity to the university and its doctors for the care of all patients at Jackson Memorial Hospital — including privately insured, Medicaid, and Medicare patients but not at the private University of Miami Hospital and Clinics. Earlier reports indicated that privately insured patients still would be able to sue. But bill drafters were concerned that applying sovereign immunity to Medicaid patients and not to privately insured patients would set up two classes of patients and wouldn’t survive a constitutional challenge, said an aide to Rep. Llorente. Last year, the UM sovereign immunity proposal was first reported by the Daily Business Review in June. Gov. Bush revealed it during a speech to UM faculty and students after asking the news media to leave the room. At that time, the university declined to comment on whether it was aware of the proposal and had any role in crafting it. Opponents of the proposal point out that sovereign immunity is typically extended only to government entities, which come under stiff public accountability rules, including the state open records and open meetings laws. Private institutions like UM are not subject to such rules. Kosnitzky and Rep. Llorente argue that any proposal to grant sovereign immunity to UM must subject the university to full financial disclosure, the same as government entities that enjoy such immunity. But Book rejects that argument. “I don’t see that there should be a quid pro quo,” he said. “We ought not be combining the two issues. We’ll cross that bridge when we get there.” Kosnitzky, a partner at Boies Schiller & Flexner in Miami, said he also worries that the proposal could set up two classes of patients. While most Jackson Memorial patients are indigent and are either uninsured or are covered by Medicaid and Medicare, many affluent and privately insured patients come to Jackson Memorial for treatment in its acclaimed specialty units, such as its burn unit. Debra Henley, deputy executive director of the Academy of Florida Trial Lawyers, said she doubted that lawmakers would want to consider another medical malpractice bill after spending so much of last year on the volatile issue. “There’s no reason to grant any more medical malpractice tort reform, when the University of Miami, like everyone else, now has a [noneconomic damages] cap,” she said. Henley said that if the proposal excludes private patients, “that will not fly. Justice should be the same for all — it doesn’t care if someone is a privately insured patient or a Medicaid patient.”

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