Florida Stands Up to Anti-Consumer Malpractice Cap

To the people trying to prevent patients harmed by medical errors from seeking adequate redress in the courts, “tort reform” is their weapon of choice. It’s code for limiting financial judgments plaintiffs may receive. But according to Los Angeles Times business columnist Michael Hiltzik, tort reform is nothing more than “shutting the courthouse door to malpractice victims.”

Last week, Hiltzik wrote about the “refreshing” decision by Florida’s Supreme Court that, by a 5-2 vote, overturned that state’s cap on malpractice damages because it deemed the 2003 law that imposed it unconstitutional. The court called the cap discriminatory and said that claims by tort reformers of a malpractice insurance “crisis” were bogus.

Thanks, your honors, for confirming what we – and many others – have been saying, and proving, for a long time.

Promoters of tort reform, and their misleading – OK, untruthful – claims are found all over the country, and Hiltzik, like other supporters of reality and fairness, appealed to Congress to reject their noise about a malpractice crisis that they say is driving up health-care costs and creating doctor shortages. Neither claim is based on fact, only fear.

The Florida case that produced the Supreme Court ruling concerned Michelle McCall, whose pregnancy and delivery of a healthy baby in 2005 went terribly wrong. Her physicians diagnosed a serious complication requiring immediate delivery, but in the few hours after her son was born, she suffered severe blood loss. Her medical team didn’t notice, and didn’t treat it. McCall went into cardiac arrest and died. Her family sued.

Initially, they received a judgment of nearly $1 million in financial losses, and $2 million in nonfinancial losses. But the court was required to cut the latter sum in half because Florida state law capped pain and suffering judgments in wrongful-death cases to $1 million, “regardless of the number of claimants.”

The Supreme Court said the limit was unfair and illogical, that it effectively saved “a modest amount for many by imposing devastating costs on a few – those who are most grievously injured, those who sustain the greatest damage and loss … simply based upon the existence of the cap.”

Hiltzik found the ruling more compelling for its dissection of the malpractice “crisis.” The cap was enacted in 2003 because its advocates claimed that Florida faced “a medical malpractice crisis of unprecedented magnitude.” Doctors were bailing out of the state, they said, because multimillion-dollar malpractice jury awards were driving insurance premiums sky-high.

But, as Justice R. Fred Lewis pointed out, the supply of doctors in Florida was increasing during the supposed crisis, not decreasing. And tort reformers were lying about it. The state medical society said that two counties had lost all their neurosurgeons, but five were working in each county at the time the claim was made.

And it wasn’t juries that decided on the highest amounts – most malpractice judgments of $1 million or more came from settlements; that is, the dollar amounts were agreed to by the parties before the cases ever got to a jury.

And increasing premiums were found to result not from litigation claims but from the insurance industry underwriting cycle. “Put simply,” Hiltzik explained, “the industry vacillates between under-reserving for claims and over-reserving. When it under-reserves, its profits look flush and carriers might even drop rates to win market share. When claims then outpace reserves, profits drop, premiums are driven higher and – presto! – there’s your malpractice ‘crisis.'”

The Supreme Court cited evidence that malpractice caps have no appreciable effect on malpractice rates. They enhance insurer profits and do nothing for either the doctors who pay them or the patients denied justice for their harms. The interests being served by what Hiltzik called the “incessant nattering about ‘tort reform'” are not those of doctors, hospitals or consumers; they’re insurers. And in Florida, he said, “the Supreme Court is telling them they’ll have to earn their money honestly.”

If you want to read some of the most telling quotes from the court’s ruling, link to PopTort, the civil justice blog sponsored by the Center for Justice & Democracy.

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