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Following criticism that it wasn’t adequately policing physician reporting and payment of malpractice claims, the Florida Department of Health says in a new report that its system for identifying doctors who don’t comply with the rules is “effective.” But a Republican lawmaker who has been a persistent critic of the Health Department’s oversight of physicians said the report shows the need for tougher enforcement. And the department, which oversees physicians through its Board of Medicine, acknowledges several shortcomings in its system. Those flaws include unclear instructions to doctors in the license renewal process and a confusing online reporting system. Based on a random audit of physicians who renewed their licenses between 2002 and 2004, the Health Department found that 79.2 percent of the 577 doctors in the sample were compliant with state rules requiring that they have liability insurance or other means of satisfying claims, and that they properly report their payment mechanism. But 12.7 percent were found to be out of compliance, and 8.1 percent did not respond to the audit. Unlike many states, Florida does not require physicians to carry insurance. To the consternation of plaintiff lawyers and some legislators, state law allows physicians to file a letter of credit, maintain an escrow account or simply promise to pay any judgment or settlement in lieu of carrying liability insurance. The Health Department report, issued May 16, says 78.3 percent of the doctors reported that they carried liability insurance; 4 percent reported having a letter of credit or escrow account to cover potential damages. Almost 10 percent said they carried no insurance, with a mere promise to pay any judgment or settlement. An additional 7.6 percent indicated that they were exempt from the financial responsibility rules because they were government employees, retired, or part of some other exempt category. But these findings on coverage selections were limited by the fact that the Health Department couldn’t verify the actual coverage status of the 8.1 percent of doctors in the sample who didn’t respond to the audit. Leaving out the nonrespondents, the Health Department said in the report that 85 percent of those who did respond to the audit were found to be following the insurance and reporting rules. The department said it would forward the cases of doctors who did not respond or were out of compliance to its Consumer Services Unit for review and possible disciplinary action. In February, the Daily Business Review reported that nearly one third of all active Florida-licensed doctors do not carry liability insurance, and that plaintiffs who win malpractice verdicts face an increasingly difficult time collecting the judgments. The Review also reported that, in some cases, the Health Department failed to enforce the requirement that doctors report judgments, and failed to take licensure action against the doctors for not reporting and paying claims. The Florida Medical Association said the new Health Department report proves that the state’s physician financial responsibility system is working. “Physicians are meeting their requirements and patients are adequately protected,” the association said in a written statement. But state Sen. Dennis L. Jones, R-Seminole, who has sponsored legislation to crack down on uninsured doctors and tighten Health Department oversight of doctors, said he isn’t impressed with the performance of the medical community or the Health Department. “I wouldn’t be bragging about 85 percent compliance,” said Jones, a chiropractor who serves on the Senate Health Care Committee. “If there are 54,000 licensed physicians in Florida, that means more than 8,000 doctors are not compliant. I would think 100 would be too many.” Miami plaintiff attorney William A. Dean also was critical. “If I knew that the numbers were accurate and authoritative for doctors across Florida, then I’d say the medical community and the Health Department are going in the right direction,” said Dean, who handles malpractice cases. “But I don’t accept those numbers.” The Health Department said its auditors asked doctors who claimed to be insured to show a copy of their insurance policy. But Dean said the department should have checked with the insurers rather than the doctors. He suspects that many doctors buy coverage to get their license renewed or win hospital staff privileges, then cancel the policy shortly afterward. “[The Health Department] says 78 percent of doctors maintain insurance,” said Dean, who last year collected a settlement on a $3 million malpractice judgment against an uninsured Hialeah surgeon only after reporting the unpaid judgment to the Health Department, which had no record of it. “But I know in my practice I’m seeing that 30 [percent] to 45 percent of doctors we sue have no insurance. I think the 78 percent figure is falsely inflated.” ‘DISCREPANCIES’ Of the 12.7 percent of audited doctors found to be out of compliance with reporting and coverage rules, the Health Department discovered a variety of “discrepancies.” The most serious of those involved doctors misreporting that they had proper insurance or another approved payment mechanism. A total of 28 doctors, or nearly 5 percent of those sampled, fell into this category, which the report did not explicitly break out. Two doctors reported having insurance but the audit found that they did not. One doctor reported having a letter of credit but the audit found the doctor actually was “bare,” as going without insurance is known. One doctor reported having insurance at renewal but the audit found the doctor actually had made no coverage selection. Ten doctors reported having insurance for a certain policy limit but the audit found that they had a different amount of coverage, either less or more. And 14 were found to have coverage with an insurer not approved by the state. “Very few had no malpractice insurance when they claimed that they did,” the Florida Medical Association stressed in its statement. “The overall audits showed that the financial responsibility system is effective.” But Sen. Jones contends the public is not adequately protected if the health department is simply relying on a 3 percent random audit of license renewals. He said the department needs to make a number of improvements in its enforcement system, including broader and more rigorous verification of coverage. “This should be more credible than a random audit, because medical licensure is more serious than real estate licensure,” Jones said. A new law Jones sponsored requires the department to check two national health care databases to verify doctors’ insurance status and malpractice record when they apply for license renewals. But it’s far from certain that judgments against uninsured doctors would be listed in the data banks. Jones wants to require medical licensees to carry insurance and increase minimum coverage. But the medical association strongly opposes those proposals. Francie Plendl, director of government affairs for the medical association, said “a large percentage” of those practicing without a liability insurance policy are “insured in different ways,” including having a letter of credit or escrow account or coming under the coverage of an employer. Verdicts not reported Jones also criticized the Health Department’s system for publicly reporting doctors’ malpractice records. State law requires doctors to report all verdicts and settlements and requires the Health Department to publicly post such information. The law also requires the department to suspend the licenses of those who fail to satisfy judgments. Earlier this year, Jones asked the department to report what information it had and what action it had taken regarding eight physicians who reportedly had failed to pay verdicts. Jones got most of these names from a Feb. 14 Review article titled “Deadbeat Doctors.” The department subsequently notified Jones that in the eight cases, it was never notified of the judgments by the doctors or by the state Financial Services Department. The Health Department’s Internet site recently was updated to include the verdict information in two of the cases. The online practice profiles for Drs. Lourdes Maria Ramon and Luis Fernandez-Rocha, who were hit with a $4.2 million verdict last year in Miami-Dade Circuit Court in connection with the botched delivery of a baby, now indicate the judgment and that both filed for bankruptcy. Both doctors were uninsured, and neither has made any payment on the judgment, according to lawyers for the plaintiff. But both doctors still are listed as having clear licenses, with Fernandez-Rocha’s listed as active and Ramon’s listed as inactive. The practice profile for Dr. Cesare DiRocco of Miami, who was hit with a $2.25 million judgment in 2001 and filed for bankruptcy the year before, shows that his license is clear and active, though the Web page for “proceedings and actions” is not available “pending confirmation by the practitioner.” And the profile for Dr. Alan L. Goldenberg of Plantation, Fla., who was hit with a $4 million judgment in May 1996 and filed for bankruptcy that same month, shows that his license is clear and active but that no detailed profile is available. The plaintiff bar has criticized the health department for failing to suspend the medical licenses of doctors who fail to satisfy malpractice judgments. The department has said each case must be evaluated individually. The medical association’s Plendl said her group was not aware that there was any problem or confusion about the responsibility of doctors to pay judgments regardless of bankruptcy filings. “It was our understanding that that if you didn’t pay a judgment you were suspended,” she said. Sen. Jones said that if doctors have made no effort to satisfy a malpractice judgment, their license should be suspended or revoked, “bankruptcy or no bankruptcy.” If the health department is unclear about its responsibility in such cases, he added, lawmakers “might be able to help them on that next year.”

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