Governor's Task Force

Governor Convenes Hearings

By Robert E. Cline, M.S., President of the Florida Medical Association

Governor Jeb Bush, increasingly concerned about the affect of the "malpractice crisis" on the availability and quality of medical care to Floridians, recently appointed a special Task Force to investigate this crisis and provide recommendations for remedies of the problem to the Florida Legislature by January 31, 2003. The Task Force included: John C. Hitt, Ph.D., Chair of the Task Force and President of the University of Central Florida; Marshall Criser, Jr., President-Emeritus, University of Florida; Richard A. Beard, III, Trustee, University of South Florida; Donna E. Shalala, President of the University of Miami; and Fred Gainous, President of Florida A & M University.

This Task Force was charged with using all appropriate means to gather information relative to this crisis, through three public testimony hearings where testimony will be obtained from a variety of sources.

The first Task Force hearing was designed to give all of the interested parties an appropriate opportunity to give testimony to the Task Force. This initial hearing was held October 21 at the Hyatt Orlando Airport Hotel, and was designed to obtain testimony from physicians, nurses, HMOs, consumers, insurance companies, hospitals, and, of course, attorneys.

I was fortunate to be selected to initiate the testimony and was given fifteen minutes to lay out the problem and present the FMA proposals for solutions. The solution that I offered was MICRA (Medical Injury Compensation Reform Act of 1975). In addition, we urged them to recommend sovereign immunity for physicians who provide emergency care including on-call specialties as well as ER physicians, and special medical licenses for out-of-state experts who testify in medical malpractice cases.

Following my presentation, physicians representing the various specialty societies as well as Dr. Joel Rose, President of FOMA, presented complementary information to support the FMA agenda for tort reform. Dr. David Shapiro, representing the FIPCA Board, and Dr. Troy Tippett, concluded the physician's segment and further summarized our position.

After the physician presentations, nursing representatives from the University of Florida College of Nursing and Florida Nurses Association expressed their concern about the reductions in both access to and quality of care that accompany this crisis. They supported improved data collection with better reporting of medical misadventures, and an emphasis on improving the process to prevent medical accidents.

HMO representatives from United Health Care and AVMED continued the emphasis and concern about access and quality of care.

Eight consumers then testified, most of whom were "physicians-friendly," appealing to the Task Force to offer satisfactory remedies to help prevent this crisis from resulting in people being injured due to poor access.

There were representatives from the various malpractice insurance companies who presented data supporting the need for prompt tort reform. David McKinney, Vice President of ProNational Insurance Company, emphasized that insurers loss ratios were the principal factor driving the increases of premiums. He also emphasized that the current "liability lottery" and "jackpot justice" inevitably made predictability of damage awards unachievable. This unpredictability leads carriers to settle cases of dubious liability to prevent the uncertainties of outrageous jury verdicts. He noted that physicians' chance of being sued in the United States is one in twelve, while in Florida it is one in five. Since 1980 the severity (amount paid) per claim to plaintiffs has increased by 3,074% with the average indemnity in 1975 being $26,338 and in the year 2001, $250,232. The average cost to defend these through trial is $85,718. He also pointed out that the reserves insurance industry suffered huge losses due to the tragedy of September 11, although the medical malpractice was not included in the losses. When reinsurers experiences huge losses, they raise rates to recover their losses. The primary insurers who reinsure their risks in the market, therefore, pay higher reinsurance costs. To debunk the myth that the stock market losses are causing increasing premiums, he emphasized that malpractice carriers have more than 80% of their investments in high-grade bonds and are not heavily invested in equities. ProNational Insurance, his company, has less than 5% of their reserves invested in equities. ProNational recommended several reforms which should also reduce premiums (see Thinktank, on page 320 of this issue).

Bob White, EVP of FPIC, gave a wonderful presentation indicating the price increases in medical professional liability premiums are the result of the substantial increases in lost payments to claimants. In addition to MICRA reforms, Mr. White also encouraged the Task Force to recommend changes in bad-faith legislation, so that only the person who purchases an insurance policy can sue an insurer for bad faith.

The hospital presentation was made by John Hillenmeyer, CEO of Orlando Regional Health System, and Don Jernigan, CEO of Florida Hospital. They both gave articulate and emphatic testimony emphasizing dramatic decreases of access and quality of care that will occur unless there is a prompt remedy to the crisis. They concur wholeheartedly with the FMA proposals for tort reform through legislative action.

Finally, the attorney presenters began with Tommy Dukes, representing the Florida Defense Lawyers Association. Mr. Dukes further outlined the problems in litigation and asked for reform in the management of cases with an emphasis on ways to reduce costs of litigation. Other speakers also supported methods to reduce these costs as a potential remedy.

Following Mr. Dukes, Attorney George Meros, who represents Florida College of Emergency Physicians, provided excellent testimony supporting sovereign immunity for emergency care.

The last speaker was Mr. Neil Roth, a malpractice attorney from Miami who is the Chairman of the Tort Reform Committee for the Academy of Florida Trial Lawyers. Mr. Roth tried to refute evidence that increased jury awards and severity of claims was driving the liability premiums upward. His argument was that the principal problem is the insurance industry where cost shifting and possible dubious accounting methods were utilized to persuade insurance departments to approve the increased premiums. Mr. Roth did not acknowledge that there was any correlation between the increasing awards and rising premiums, and offered several recommendations to the Task Force:

  1. Increase reimbursement rates for physicians
  2. Allow physicians to collectively bargain
  3. Eliminate effects of Fabre judicial opinion
  4. Strengthen sanctions for medical expert witnesses
  5. Require early mandatory mediation for medical malpractice cases

In summary, the Governor's Task Force listened attentively to the testimony and, I believe, will produce excellent recommendations for the legislature. Stay tuned. Working together, listening and learning together, I believe we can win this battle.

Jacksonville Medicine / November-December 2002 www . dcms online . org

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