CAPPING OF NON-ECONOMIC DAMAGES IN MEDICAL MALPRACTICE CLAIMS William Bell General Counsel Florida Hospital Association

Problem Politics vs. Policy Legislation

The Problem Broken System Expensive - Skyrocketing premiums Slow - Takes 4 to 5 years from incident to resolution Unfair - Patients receive less than 50 cents on the dollar

The Problem  Declining access to healthcare services — trauma/ER obstetrics mammography other high-risk specialties  Affordability — Florida doctors’ premiums 55 percent above nation  Availability — Insurers writing policies dropped from 66 in 1999 to four  Frequency/severity of claims — Florida’s claims’ frequency 36 percent higher than nation;  Coverage declining — As costs rise, providers drop coverage limits to $250,000 minimum or carry no Insurance at all

Politics vs. Policy Similarities to 1970’s and 1980’s Affordability and Availability Third Cycle Tried Insurance and Tort Reform

Politics vs. Policy Differences from 1970’s and 1980’s Anesthesia - 70’s OB - 80’s Misdiagnosis ’s Data, Experience, Court Decisions Fragile Health Care System

Politics vs. Policy The Goal Fair compensation to injured parties, while protecting coverage for all of us Three-fold Agenda Clear guidelines for litigation and compensation Stable insurance market Improved patient safety

Politics vs. Policy Research Coalition and Grassroots Public Education Legislation

What you can do

Legislation Tort Reform Patient Safety Insurance Reform

Tort Reform Non-economic Damages Caps  Practitioner  Doctors  Employees  PAs  Non-Practitioner  Hospitals  HMOs  Employees

Tort Reform Practitioner Silo  $500,000 per claimant  $1,000,000 aggregate (2 or more claimants; e.g., spouse, children) All practitioners share aggregate cap No individual practitioner pays more than $500,000

Tort Reform Non-Practitioner Silo  $750,000 per claimant  $1,500,000 aggregate (2 or more claimants; e.g., spouse, children) Non-practitioner liability is limited to maximum in that silo, regardless of theory of liability All non-practitioner defendants share aggregate cap

Tort Reform Piercing – Two Avenues  Death or permanent vegetative state -OR-  Catastrophic injury plus “manifest injustice” finding (patient only)  Up to max in each silo: $1,000,000 for practitioners; $1,500,000 for non-practitioners

Tort Reform Emergency Room Cases  Practitioner  $150,000/$300,000  Non-practitioner  $750,000/$1,500,000 Definition of “reckless disregard” strengthened for purposes of Good Samaritan Immunity Cap applies through stabilization and, if necessary, surgery within a reasonable time No “piercing”

Tort Reform Application  $2.5 max non-economic damages  $1M + $1.5M  Set-offs for non-economic damages within silo  Total non-economic damages cannot exceed cap applicable to that silo  Retain current law re: set-offs for economic damages  Only economic damages are set off between silos

Ending Complex Problem: Health Care System Judicial System Insurance Regulated Separately Different Public Policy Goals Solution: Coordinated Approach and Common Goals Patient Access Quality of Care Cost Containment