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The Academy of Florida Trial Lawyers is sharply criticizing a legislative commission study that recommends fresh restrictions on medical malpractice lawsuits to improve the availability and reduce the cost of mammograms. The plaintiff bar group complains that the commission report focuses mainly on restricting malpractice lawsuits rather than addressing more important issues limiting women’s access to breast cancer tests, such as lack of health coverage. Florida has one of the highest uninsured rates in the country. In Florida, 21.2 percent of nonelderly residents are uninsured, compared with 17.5 percent across the country, according to the Kaiser Family Foundation. The plaintiff bar’s criticism received support from another legislatively mandated report, issued last month, which plays down the problem of mammography-related malpractice suits. The dueling reports foreshadow another legislative season of fierce combat over medical malpractice in Tallahassee, Fla. The critical report issued Wednesday by the Academy of Florida Trial Lawyers was written by Betsey T. Herd, a Tampa, Fla., plaintiffs lawyer who served on the Workgroup on Mammography Accessibility, which was set up by the Legislature last year. Herd said in an interview that she wrote the dissenting report because the 12-member work group appointed by Gov. Jeb Bush and Republican legislative leaders refused to consider any of her suggestions or include a dissenting opinion. She said she was particularly dismayed that the group did not address the fact that only 4 percent of low-income women on Medicaid get mammography testing, even though Medicaid covers the service. Bush recently proposed a plan to sharply curb Medicaid spending. “I was like a lone voice,” Herd said. “They didn’t want to dilute their tort reform initiatives. That was their only agenda.” Karen Eaton, the executive director of the mammography work group, said malpractice litigation was indeed a chief concern of the group. She called Herd “an outlier” who “made it clear from the start she was there on behalf of the trial lawyers. She was representing a special interest group.” Gov. Bush’s office did not return calls for comment. The work group chair, Nancy Humbert, the state deputy secretary for health and director of public health nursing, said through a spokeswoman that she had not read Herd’s dissenting report and did not have the time to do so. The mammography work group was created during the 2004 legislative session to make recommendations on the availability, utilization, quality of care and cost of mammography services in Florida. The bill also called for a parallel study by the Office of Program Policy Analysis & Government Accountability. Lawmakers agreed to mandate the studies rather than grant radiologists immunity from mammography-related lawsuits, which some GOP legislators had proposed. The work group’s report was presented last week to Bush, House Speaker Allan Bense, R-Panama City, and Senate President Tom Lee, R-Brandon. The 14-member group included six radiologists, two nurses, two attorneys, two insurance industry representatives and two legislators, Sen. Burt Saunders, R-Naples, and former GOP Rep. Carole Green, now a member of Bush’s administration. Most of the group’s recommendations deal with legal liability issues. The recommendations include: � Capping noneconomic damages for negligence in mammogram reading at $150,000 per claimant, or $300,000 for all claimants. � Exempting radiologists interpreting mammograms from the recently passed constitutional Amendment 8, which revokes the medical license of doctors found to have committed malpractice three or more times. � Toughening the burden of proof in medical liability lawsuits involving breast cancer from the greater weight or preponderance of the evidence standard to the clear and convincing standard. The work group also recommended that the Legislature seek to reduce or eliminate health insurance co-payments and deductibles that prevent women from getting mammograms and provide a mechanism for uninsured women to receive mammograms at low or no cost. According to the American Cancer Society, breast cancer is the second leading cause of cancer deaths for women in the United States, and early detection by mammograms decreases mortality rates by 30 percent. But the legislatively mandated study on mammography released last month by the Office of Program Policy Analysis & Government Accountability, the Legislature’s official staff analysis agency, suggested that mammography-related lawsuits are not as big an issue as the work group’s report indicates. It found that radiologists were not facing more malpractice lawsuits than other types of physicians in Florida. It also found that most claims against radiologists do not involve mammograms. “Although many radiologists who interpret mammograms cite the fear of lawsuits as a reason for limiting their practice, we were unable to substantiate this concern because the necessary information is either not available, invalid or inconclusive,” the report stated. The program analysis office’s report suggested that lack of health insurance plays a key role in lack of access to mammograms. Nationally, 61 percent of women undergo mammograms. But in Florida, the rate is only 42 percent. This month, Gov. Bush proposed a plan to shift Medicaid patients into private insurance through a voucher-type arrangement in an effort to hold down growing Medicaid costs. But advocates for Medicaid beneficiaries warn that many Floridians could lose coverage under the plan, and that the state payments to private insurers may be too low to ensure good access and quality for services such as mammograms. Florida already has one of the highest rates of residents with no health coverage in the United States, with 21.2 percent uninsured. In South Florida, and among Hispanics in particular, the uninsured rate is even higher. Studies have shown that women without health insurance are less likely to receive mammograms. NO INTEREST Herd said that during work group meetings, she repeatedly tried to get the group to consider such issues as why such a small percentage of women with Medicaid coverage receive mammogram testing, and why in Duval, Orange and Miami-Dade counties, wait times for mammograms are far longer than in nearby areas. “They had no interest in looking into that,” Herd said. But Eaton disagreed with Herd, saying the work group was concerned about the low rate of women on Medicaid who receive mammograms. She said it appointed a steering committee to explore that and other issues. But no specific recommendations were made on the issue. “We only had four months,” she said. “If we had more time, we could have done more.” Herd and the plaintiff bar argue in their report that the work group focused on the wrong issues. “Rather than focusing on increasing availability of care for low-income women and creating incentives to encourage more radiologists to enter the mammography field, the group instead chose to advance numerous ‘tort reform’ initiatives that either will not fix the problem they are intended to address or that tackle problems for which there is at best anecdotal and unreliable evidence to suggest they exist,” the report says. “The recommendations provided by the work group would give women less protection than any other patient when negligent or incompetent radiologists fail to detect life-threatening breast cancer or wrongly identify cancer where none exists,” the report adds. The plaintiff bar’s first recommendation was to examine whether Medicaid should reimburse for mammograms performed by mobile facilities. Several other states, including Georgia, authorize Medicaid reimbursement for such facilities, which are often used in populous areas to alleviate wait times. The report also recommends: � Eliminating co-pay requirements for Medicaid recipients receiving mammograms and increasing Medicaid reimbursement rates to facilities performing the screening to encourage more to accept Medicaid patients. Twenty one percent of all facilities will not accept Medicaid, according to the report. � Providing a loan forgiveness program for radiology technicians and radiologists to encourage more to enter the field and stay in Florida. � Creating additional schools and programs for radiologists in Florida. � Requiring insurers to provide discounted rates to radiologists who read 2,500 films a year in order to encourage radiologists to read more films, which the report says is necessary to maintain proficiency. NO EVIDENCE OF MORE LAWSUITS The other legislatively mandated report, by the Office of Program Policy Analysis & Government Accountability, did not make any recommendations, but simply analyzed the accessibility and utilization of mammograms in Florida. It found that Florida has 465 facilities certified to perform mammograms and that they perform about three million mammograms a year for women age 40 and older, representing 65 percent of the population. According to that office, malpractice insurance premiums for radiologists are slightly higher than rates for other types of doctors. But the office could find no reason insurers were charging radiologists more, since there is no evidence that more lawsuits are filed against these specialists. Sen. Saunders, a member of the work group, said the group focused on issues relating to malpractice litigation because “a lot of testimony” before the committee involved issues of medical malpractice. But, Saunders acknowledged, “a lot of the testimony was anecdotal evidence, not hard evidence.” Asked why the work group did not address the issue of the low rate of women on Medicaid who receive mammograms, Saunders said “there was some dialogue on that but I don’t think we came up with a recommendation.” State Rep. Jack Seiler, D-Pompano Beach, an attorney who was not on the work group, said he believes the two legislatively mandated studies show that further restrictions on malpractice suits are not the answer to improve mammogram usage. The Legislature passed major restrictions on malpractice suits in 2003, including caps on noneconomic damages, that were pushed hard by Bush and GOP legislative leaders. Last year, Florida voters approved severe limits on contingency fees for plaintiff lawyers in malpractice cases. GOP lawmakers are expected to propose a host of new malpractice lawsuit restrictions this year. “Caps have nothing to do with eliminating frivolous lawsuits,” said Seiler, who sits on the House Judiciary Committee. “Tort reform erodes consumer rights and is an infringement on constitutional rights.” “I have to keep reminding my colleagues in the Legislature that there are victims out there,” he said.

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