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Under pressure from Speaker Johnnie Byrd, the Florida House Insurance Committee on Tuesday approved wide-ranging restrictions on medical malpractice lawsuits, sending it to the full House for consideration. The panel voted 14-9, mainly along party lines, to approve a range of controversial malpractice changes that were proposed but rejected last year. Four Republicans on the 22-person committee broke ranks with the leadership and voted against the proposal, while two Democrats joined the majority. The Republican-dominated House is expected to vote on the legislation this week. The bill includes a broad range of provisions, including granting sovereign immunity to emergency care providers and to medical schools such as the University of Miami that provide services to public hospitals. It also would impose new restrictions on who can serve as an expert witness. “The provisions close loopholes that some attorneys use to get around existing medical malpractice legal safeguards,” Byrd said in e-mailed comments. Doctors from around the state are scheduled to gather in Tallahassee Thursday to rally in support of the bill. Byrd, who’s running for the U.S. Senate and is pressing hard to raise campaign money, will be a featured speaker at the rally. Last year, the Legislature, under pressure from Gov. Jeb Bush and Byrd, approved controversial caps on noneconomic damages in malpractice cases. Senate leaders of both parties, who held out against some of Bush’s and Byrd’s proposals last year, promised that they would not take up malpractice legislation this year. Even though insurance industry officials testified under oath that non-economic damage caps wouldn’t necessarily have any significant impact on doctors’ malpractice liability premiums, the Florida Medical Association and insurers now insist that stricter caps are needed to control liability costs. In an interview, former Florida Secretary of State Sandra Mortham, now chief executive of the Florida Medical Association, said her group is “thrilled” with the new House legislation. Mortham said these provisions are needed because premiums have not declined since the Legislature enacted the caps last fall. The new package, she contended, will reduce rates “over the long haul.” But the plaintiff bar immediately denounced Tuesday’s House Insurance Committee vote as a political maneuver by Byrd to curry favor with doctors to boost his Senate campaign. “The Speaker is playing politics and using the House to gin up support for his own political gain,” said Neal A. Roth, a Miami attorney who has led the opposition to medical malpractice changes for the Academy of Florida Trial Lawyers. Roth calls the bill “dead on arrival” in the Senate. The new bill would establish a procedure under which out-of-state experts in medical malpractice cases must get certification from the physician-dominated Florida Board of Medicine in order to testify at trial. It also would give doctors the right to override their insurance company’s decision and refuse to settle with a plaintiff. In addition, defendants found liable would be able to choose periodic payments rather than a lump sum to satisfy a jury award. Finally, the bill would curb lawyer advertising seen as soliciting members of the public to file med mal lawsuits. State Rep. Dan Gelber, D-Miami Beach, who sits on the insurance committee and voted against the package, criticized Byrd for ramming the bill through and mocked the legislation as “eye-candy” for doctors. “This was a very rushed and hurried process with almost no debate,” Gelber said. “This bill is not in any way about reducing rates.” Debra Hanley, deputy executive director for the Academy of Florida Trial Lawyers, said the bill was a collection of flawed provisions that were considered and rejected by lawmakers last year. SOVEREIGN IMMUNITY To justify granting sovereign immunity to private medical schools that provide services to public hospitals, the bill asserts that high liability costs have resulted in the decline of public hospitals in Florida, from 33 in 1988 to 18 in 2001. Under the bill, a public hospital is defined as a “statutory teaching hospital or any other health care facility owned or used by the state.” The language granting sovereign immunity is written so broadly, Hanley said, that private hospitals with any kind of teaching component could rightfully argue that they also are entitled to sovereign immunity. Hanley said many Floridians could unwittingly find themselves in a situation where they are injured due to medical negligence and are not able to seek legal recourse — not realizing they were treated in a facility that falls under sovereign immunity. “You may think you are in a private hospital but you won’t know you would be subject to a $100,000 cap,” she said. Others assailed the general idea of extending sovereign immunity, which up to now has been reserved for government agencies, to private institutions. “The University of Miami is a private institution that makes tens of millions of dollars every for treating indigent patients,” said Jeremy Alters, president of the Dade County Trial Lawyers Association. “To provide sovereign immunity for a private institution is simply wrong.” On the issue of allowing doctors to block settlements, Sean Domnick, a West Palm Beach plaintiff attorney who testified before the Insurance Committee Monday, said that provision is an effort by the insurance industry to deflect the blame for settlement delays and thus avoid bad faith claims. “It allows insurers to sit back and say, ‘The doctor didn’t want us to settle,’ ” said Domnick, a partner with Searcy Denney Scarola Barnhart & Shipley. Plaintiff lawyers said the provision requiring Board of Medicine certification for out-of-state experts was an attempt to make it even harder for plaintiffs to find experts to testify. Currently, the trial judge determines who is qualified to be an expert witness based on state law. While House Republicans are pushing for these changes, the Florida Medical Association is gathering signatures to place a constitutional amendment on the ballot this fall to limit plaintiff attorney fees in malpractice cases. Mortham said her organization has gathered about 200,000 signatures out of a required 488,000. She said limiting contingency fees is a matter best decided directly by the people of Florida rather than the Legislature. She said the effort is “going strong.” Mortham said that the current legislation that comes on the heels of last year’s medical malpractice battle may still not be enough. “I don’t think this is all of the issues that are out there that will help solve this problem,” she said. The Academy of Florida Trial Lawyers is gathering signatures for its own proposed constitutional amendments to stop doctors from practicing after three malpractice judgments, grant public access to information about adverse patient incidents in hospitals, and require doctors to charge one set of fees for all patients. They have collected about 200,000 signatures for each of the three initiatives.

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