With malpractice claims constrained, injured Florida kids and families struggle

disabledkidsfla-300x233When doctors, hospitals, and insurers bellyache about malpractice claims with little evidence on their prevalence or outcomes, patients and politicians should push back: And they can cite the nightmares people in grievous circumstance have suffered when their constitutional right to seek justice in civil lawsuits gets stripped away.

The Miami Herald and ProPublica, the Pulitzer Prize-winning investigative website, have conducted a joint, deep dive into Florida’s decades-old legislative experiment, purportedly to assist families struggling with infants’ birth-related and catastrophic disabilities. The state’s neurological injury compensation initiative also was promoted as a way to stem a problem seen mostly in anecdote and not evidence — obstetricians and other specialists supposedly fleeing Florida, reputedly due to spiking malpractice insurance costs.

The media investigators, in a multipart series , have found that eliminating medical malpractice lawsuits for this slice of patients has benefited not the patients but instead, doctors, hospitals, and insurers.

It has created a cruel and unresponsive bureaucracy that now sits atop more than $1 billion in fees collected for years now from doctors and hospitals participating in a program that protects them from malpractice suits. The legislation under what some lawmakers dubbed their “baby bill” has resulted in slightly more than 1,200 claims.

In the best-case scenario, a board that decides families’ applications to be included in the program known as NICA can award beneficiaries $100,000 up front for lifetime care of a profoundly disabled child and $10,000 for funeral benefits, if the youngster dies.

Those sums, as the investigators found, rarely begin to cover the staggering costs of the intensive, 24/7, and long-term medical and other needs for children who may have been harmed by negligent or wrongful conduct by health workers and hospitals.

The NICA bureaucrats do try to help program participants, barely upholding the state’s “pledge [to provide] future expenses for [disabled youngsters’] ‘medically necessary and reasonable care.’” But, as they described it to reporters, the agency nickel-and-dimes them at every turn, forcing them to struggle with falling apart equipment or seeking costly options when better solutions exist.

And instead of spending its ballooning bankroll to help clients, the agency hires expensive consultants and other professional staff, including to do battle with the very people it is supposed to assist.

Here is the shift-and-shaft in this program: The reporters have found that taxpayers, via Medicaid, pay for a chunk of the costs for families and their disabled kids. NICA staff may push them to Medicaid supports, rather than tapping into the agency’s funding stash. (It’s true that billion is supposed to support program recipients for long spans, but the money now throws off more annually in investment returns than the agency pays out).

It takes a touch of dot-connecting, the media organizations report, but the galling, net result of this program, purportedly to deal with the menace of malpractice cases — it has shoved on to taxpayers a huge share of the costs for doctors and hospitals problematic care for infants. Bad doctors and poor performing hospitals get shielded from potential exposure in malpractice claims and insurers and specialists make the public pay, instead.

Florida officials are racing to audit the program after the Herald-ProPublica stories.

Finally. In my practice, I see not only the harms that patients suffer while seeking medical services, but also the fortitude required of them if they decide to seek justice in the civil legal system from damage, abuse, or neglect they suffer by health workers or caregiving institutions. These cases include injuries inflicted on babies and children in the health system.

Sure, the medical establishment and insurers relish their counter factual claims about malpractice. But year after year the evidence refutes their myth making, showing that relatively few of these cases advance in state courts across the country. While judges and juries can require defendants to pay substantial judgments, these are not common, and, contrary to the canards otherwise, good doctors don’t encounter just bad luck and end up in court. Instead, a slice of doctors experience two, three, or more malpractice claims — and lose them. Malpractice actions can help to get bad doctors away from patients and to show and get clinicians and institutions to deal with systemic problems they might want to look past.

By the way, Virginia is the only other state besides Florida with a NICA-like program, constraining malpractice cases involving select infants with birth-related disabilities. It will be interesting to see if ProPublica decides to tackle the commonwealth’s program, which has had its share of controversies and concerns over the years, including a lawsuit that led the governor in pre-pandemic times to shove back on the key issue of whether the state agency involved or Medicaid should shoulder heavy costs for the kids’ care.

We have lots of work to do to ensure that health care is a right and not a privilege, and that it is safe, accessible, and affordable. Dealing with complex cost and accountability challenges by waving away a fundamental right, like having one’s claim heard in a fair, impartial court of law, is not an answer. C’mon, man, let’s give up the nonsense.

Patrick Malone & Associates, P.C. listed in Best Lawyers Rated by Super Lawyers Patrick A. Malone
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