The Looming Tort Reform Showdown

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The Looming Tort Reform Showdown

Robert W. Yelverton M.D.,
Chairman, FOGS Task Force on Professional Liability Insurance

The efforts toward tort reform are headed for a showdown when the Florida legislative session begins in March 2003. In preparation, your FOGS representatives have been busy gathering information, formulating a plan of action, and presenting both the problem as we see it and suggesting solutions which would reform the current out-of-control tort system in Florida and increase the availability and affordability of professional liability insurance. Ever since Governor Bush commissioned the Governor's Select Task Force on Health Care Professional Liability Insurance to study the issue, most of the efforts of Florida health care providers, insurance carriers, and the trial bar have been focused on providing information to this group. The task force is charged with the responsibility of studying the problem and providing recommendations to the Florida Legislature prior to the 2003 legislative session.

For the most part, the FOGS position on tort reform parallels that of the Florida Medical Association, but unlike the FMA's it also includes proposed modifications to the current NICA statutes which would lower the birth weight of eligible infants to 2,000 grams and allow infants with serious spinal cord injuries such as Erbs palsy to be included without requiring evidence of brain injury. FOGS believes that these modifications can be included without an increase in the NICA assessment to Florida health care providers and without altering the original intent of the NICA law.

I presented the FOGS position to the Governor's task force during its initial meeting in Orlando in October. I also included extensive data confirming the specific problems of affordable liability insurance for ob-gyns in Florida. I feel that the comments were well received. The Task Force seems to clearly understand that the urgent problem is the absence of affordable insurance right now, and that meaningful tort reform will take years before the reforms will actually lower rates. The NICAissue is on the agenda for consideration at the December meeting of the task force.

I also attended the November 22nd meeting of the task force where each item of reform was hotly debated by all interested groups. The trial bar was well represented, and its witnesses again stated their opinion that there is no excessive litigation and no real crisis - only a crisis of affordable insurance created by the insurance industry to cover their investment losses resulting from the current economic downturn. The trial bar's only suggestion to the task force was that the current crisis could be resolved simply by the formation of a reciprocal insurance company sponsored by Florida health care providers. Seems like we have been down that road before!

After attending two of out of three task force meetings, I can report that the individuals on the task force are taking their jobs seriously and I predict the following recommendations will emerge:

A moderate overhaul of the tort system.
A cap on non-economic damages.
An extension of sovereign immunity statutes to include physicians responding to emergency situations in emergency rooms and hospitals, including obstetrical emergencies and unregistered patients in labor.
Return of the jury selection process to the original system of selecting jurors from a pool of registered voters.
A requirement that pre-suit expert witnesses have the same qualifications as those qualified for trial.
Modest changes to close loopholes in collateral source rules and joint-and-several liability statutes.
Modification of the Florida Patients Compensation Fund or the Joint Underwriters Association in an attempt to provide affordable liability insurance.

Again, these are only my predictions. The task force will present its final recommendations to the legislature in January 2003. The Florida House of Representatives has appointed its own commission to study the crisis and our input will be critical to this group as well. Your society's real task will be communicating our position to the Florida legislative representatives who will be charged with converting the final recommendations into law. FOGS will be calling upon all members to assist in this effort, so stay tuned.