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IssuesBook 2016

“ In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law. ” — The 7th Amendment to the Constitution of the United States of America


Justice is the cornerstone of our American democracy. It is the mission of the Florida Justice Association to ensure that this ideal is upheld and protected by promoting a fair and effective justice system in Florida. We fight to protect the rights of all Floridians to seek justice and get fair treatment in Florida’s courts — even when taking on the most powerful interests. Since our first charter was drafted in 1961, the Florida Justice Association has constantly evolved to stay at the forefront of Florida politics and the fight to preserve Florida’s civil justice system. FJA continually strives to give our members the best representation in the legislative, political and public arenas. It is important that Floridians know and understand their rights to justice and to make certain that these rights, which are at the very core of what it means to be American, are safeguarded and protected. Our members are also afforded top-rated legal education programs, one of the best legal publications in the country, the FJA Journal, and numerous networking opportunities to remain at the top of their field in today’s ever-changing legal climate.



Limitations in Medical Payments............................................4 Assignment of Benefits........................................................... 5 Insurance Bad Faith............................................................... 6 Patient Compensation System...............................................8 Tobacco Punitive Reform.......................................................9 Summary Judgment.............................................................10 FJA SUPPORTS: Automobile Insurance: Mandatory Bodily Injury................... 11 Rental Car Driver Responsibility..........................................12 Prejudgment Interest............................................................13 Wrongful Death By Negligent Medical Providers..................14 Medical Records Costs........................................................15 ADDITIONAL INFORMATION: Medical Malpractice Tort Hurdles.........................................16 Tort History...........................................................................17 Supporting documentation is available for reference at

2016 Issues Book





For several years, the Florida Justice Association and many healthcare providers worked together to allow victims of negligence to be able to be made whole again and allow doctors to treat patients with the best care. Legislation filed in 2013, 2014 and 2015 would have a very chilling effect on hospitals and doctors, destroying their ability to charge and be paid a reasonable price for their services. The legislation would prohibit a jury from hearing evidence of a doctor’s or hospital’s full charges for the treatment a doctor or hospital may provide a person who was harmed as a result of the reckless behavior of another. Typically in emergency situations, medical professionals must make quick decisions on treatment in order to save the life of a patient who enters the emergency room. They often do not know or care what caused the emergency as their primary concern is to care for and heal the patient. The legislation in question, Limitations in Medical Payments (LIMP), would mean that doctors might work on these patients without the chance of ever being paid because of a jury ruling after a trial in which the doctor did not participate. This legislation would keep a jury from hearing how much a doctor’s expertise is worth, regardless of the doctor’s usual charges. It would allow a wrongdoer to question a doctor’s judgment on treatment options prescribed. Essentially, the legislation would put cost effectiveness above quality of care.


2016 Issues Book

Additionally, the legislation further harms a victim of negligence. It allows wrongdoers to escape accountability. The legislation presents a huge access to care issue for injured victims, unfairly eliminating their ability to receive the best care after being injured. When a person is injured by no fault of her own, she should have the right to choose her doctor and receive the highest quality of treatment available in order to become whole again. This legislation could put those choices in the hands of the wrongdoer and the wrongdoer’s insurance company. Further, this legislation would force doctors to sue their patient, the victim—not the wrongdoer or the wrongdoer’s insurance company—for unpaid medical bills, further harming an innocent person, considerably adding to the backlog in the court system, and forcing physicians to spend more time in the courtroom than treating other patients. Meanwhile, the person or entity that made the medical treatment necessary in the first place walks away free and clear of financial responsibility. Legislators should not pass legislation that would unfairly limit medical payments and harm victims, doctors and hospitals.

Legislation filed on this issue in 2015 Session — HB 1199 and SB 1240. Result: Died in Committee




An “Assignment of Benefits” is where an individual entitled to coverage or benefit, (like recovering of property damage) assigns or authorizes those benefits to go directly to a contractor or service provider who does the work. An example of where an assignment would be used in Florida is:

Legislation offered in 2015, and likely to return for the 2016 Session, however, would change a system that works for consumers and homeowners into a system that puts homeowners and consumers at the mercy of insurers by eliminating the ability to “assign” your insurance benefits to a contractor of any kind. Any change along the lines of the 2015 legislation would have the effect of forcing homeowners to pay out of pocket for repairs because contractors/vendors will not be willing to do the work without some hope of being able to secure payment after the job is done. What the legislation also don’t decide is what happens if the insurance carrier only wants to pay half or even denies the claim outright? The legislation even prevents the contractor/ vendor from suing the insurance company to recover the repair costs and denies you, the property owner, the ability to empower the contractor/vendor.


A hurricane strikes. Rooms are soaked, roofs are shattered and your life turned upside down. But you think, thank God, I have insurance. You call a water damage company and a roofer knowing that you need to do all you can to mitigate the damage and wait for your insurer to ride in on a white horse and be the service you paid for. Trusting that the services rendered in the interim will be paid for by insurance, you sign the invoice and those who do the work remind you that you owe nothing and they’ll handle everything with your insurer.

Peace of mind. A safe home. And a system that has worked for 100 years.

Changing an effective, consumer friendly, 100 year old system is bad for Florida, bad for consumers, bad for contractors, and bad for workers who put lives back together after a storm. Legislation filed on this issue in 2015 - HB 669 and SB 1064 Result: Died in Committee

2016 Issues Book





ENSURE THAT INSURANCE COMPANIES REMAIN ACCOUNTABLE TO POLICYHOLDERS FOR ACTING IN BAD FAITH Imagine you are a responsible small business owner. As such, you are licensed, you pay your bills, you pay your taxes, you have insurance and you pay your premiums on time. Owning this business was a life-long dream of yours and, after taking a leap of faith and years of hard work, your business is not only surviving, it’s thriving. Recently, you have been able to hire more employees and every month you are paying down large chunks of the debt you took on to start the business. You have done everything right. You are truly living the American dream and are contributing to building up the economy in your hometown. But today, the unthinkable happened. One of your employees was out on a delivery in a company car. It was raining hard, making the roadways hazardous and drastically limiting visibility. By the time your employee realized the minivan in front of him had slammed on its breaks it was too late. Your employee slammed into the back of the minivan at 45 mph, severely injuring the driver and passenger. As tragic as this incident was, it is the exact reason you have liability insurance for your business. Under Florida law, all insurance companies have a duty to act in good faith towards their policyholders. These laws protect Florida’s homeowners, small business owners and motor vehicle operators who purchase liability policies by requiring the insurance company to promptly investigate and evaluate all insurance claims against their policyholders and, when possible, promptly settle claims filed against their policyholder for an amount that is at or below the insurance contract policy limits. Additionally, these laws require insurance companies to protect their policyholders from judgments that are in excess of their insurance contract policy limits, the exposure of their business and personal assets, and being forced to declare business and/or personal bankruptcy. Because of these laws, you are protected and the injured party will be compensated.


2016 Issues Book

Sometimes insurance companies break the law and act in bad faith. An insurance company acts in bad faith when they refuse to accept a reasonable settlement offer or fail to inform you of the offer in a timely manner. As a result, the insurance company exposes you to a court judgment that could far exceed your policy limits. Under a normal insurance contract, when you receive an “excess judgment,” you are “on the hook” and must pay the full amount over the policy limits out of your own pockets. However, if you can prove in a subsequent lawsuit that your insurance company has acted in bad faith by failing to settle the claim against you when it could and should have, the insurance company – not you – must pay the judgment in excess of the policy limits. Laws that require insurers and other businesses to act in good faith are good public policy benefiting both policyholders and victims. The reason policyholders pay premiums to insurance companies is to protect themselves legally and financially, and grant insurers the exclusive control over decisions to investigate, evaluate, and settle claims against the policyholder, or, when necessary, litigate on their behalf. When an insurance company acts in bad faith, it betrays the trust placed in them by their policyholders and exposes them to the potential of financial ruin. Florida’s bad faith law is the private, free market alternative to additional insurance regulation. Legislation filed on this issue in 2015 Session — SB 1088 and HB 1197 Result: Died in Committee

2016 Issues Book





The Patient Compensation System is an attempt to squelch the rights to a trial by jury guaranteed to every Floridian under the 7th Amendment and the Florida Constitution. It flies in the face of the bedrock conservative principles of individual responsibility, accountability, and abiding by the plain text of the Constitution. The Patient Compensation System replaces the American jury system with a government-run panel of politically appointed healthcare industry representatives. Harmed patients would be required to file their claims with a bureaucratic ‘medical review panel’ much like the discredited IPAB board in the Affordable Care Act, and then, if their claim passes that panel, they would have to successfully petition a second panel for compensation for their injuries according to a governmentestablished schedule of benefits. Florida has tried this approach before. The Florida Patient’s Compensation Fund was enacted in 1975 and was established to pay any amount exceeding $100,000 of a medical malpractice claim. However, due to lack of funding by doctors and hospitals, the revenue needed to operate the fund was never sufficient and the fund is no longer operational. The Patients’ Compensation Fund is a big government proposal that will create a large and costly bureaucratic system run by an unaccountable review panel that assumes the role of a judge and jury. If a Patient Compensation Fund is enacted in the 2016 legislative session, victims would have their right to a trial by jury diminished. In 1789, James Madison, Founding Father and President of the United States, stated “trial by jury in civil cases is as essential to secure the liberty of the people as any of the pre-


2016 Issues Book

existent rights of nature.” It is imperative that the legislature not support a bill which eradicates that inalienable right. The collateral impact of a system like this being implemented is a spike in malpractice claims. Most med mal claims are not currently pursued as a result of decades of court access blockades. Undoing this current system would disrupt the free market med mal insurance system and remove control of claim handling procedures by insurers in favor of a bureaucratic system.

MEDICAL MALPRACTICE FACTS 1. 97 percent of medical negligence claims have merit. (Harvard School of Public Health) 2. “Drop in malpractice claims corresponded with an increase in hospitals’ quality scores,” and not from so-called “”tort reform” (Southern Illinois Medical School Study) 3. If strict “tort reform” were implemented nationally, the cost reductions would amount 0.3% (Congressional Budget Office Study, 2009) 4. There is, “no evidence that the adoption of damage caps increased physician supply.” Northwestern Kellog School of Management


TOBACCO PUNITIVE DAMAGE REFORM PREVENT A TOBACCO COMPANY BAILOUT FOR DAMAGES INFLICTED ON OUR GREATEST GENERATION Tobacco companies have been playing a game of “outlive the smoker and their families with excessive litigation” for years when meritorious claims were brought against them. Cigarette makers use a litigation strategy that contorts and extends the judicial process for every case brought against them and have done so for decades. As a result, they have avoided responsibility on thousands of occasions, and now they are taking it to the Florida Legislature for a bailout on their responsibility to pay punitive damages to smokers from lawsuits originally filed in the 1990’s.

In the 1999 Tort Reform Act, the Florida Legislature changed the punitive damages statute to make it more difficult for Floridians to be awarded punitive damages. Even though there were thousands of Floridians who began litigating their cases before the 1999 Tort Reform Act went into effect. Legislation introduced in the 2015 Session sought to retroactively apply this law to Big Tobacco cases and completely change the legal landscape on which both defendants and plaintiffs had been relying for over 15 years. Additionally, all Plaintiffs eligible to sue started smoking before cigarette makers were forced to admit their products were deadly. The punitive damages some companies already paid — and that consumers often hear about — are part of the Master Settlement Agreement, and were paid to governments for tobacco health damage costs to state and federal health plans

• Florida Justice Association • American Society of Clinical Oncology • Campaign for Tobacco-Free Kids • International Association for the Study of Lung Cancer • American Cancer Society – Cancer Action Network • AARP Florida • American Lung Association • Florida Alliance for Retired Americans • MUSC Hollings Cancer Center • Florida Medical Association • The Prevention Network


Punitive damages are reserved for egregious conduct perpetuated by the worst kind of civil offender. The civil theory behind such damages is that they are to be utilized to punish the harmful actions of a bad actor and to deter even worse behavior. Punitive damages are difficult to be awarded; in fact, claimants must show “clear and convincing” evidence that the defendant was personally guilty of intentional misconduct or gross negligence.


like Medicare and Medicaid. They were not paid to individuals for damages. The greatest generation are still waiting for their day in court. All Floridians and companies should be held accountable for their actions and violations of any of the laws which were in effect at the time they violated them. The Florida Legislature should not allow a bailout for any interest group, especially one whose business premise involves addiction to a deadly product. Legislation filed on this issue in 2015 Session - SB 978 and HB 1067 Result: Died in Committee

2016 Issues Book





Under our Florida Constitution all Floridians have the right of access to the courts and to trial by jury. Unless a person gives up his/her right to trial by jury, the jury decides the facts of each case and the judge determines what law applies to those facts. An exception to the right to trial by jury is when the judge grants a summary judgment without a jury trial. A summary judgment is a judgment based on the judge’s opinion of the law that applies to a case. The judge is only supposed to do that when there is no material fact disputed. If there is no disputed fact, there is nothing for a jury to decide. If there is a disputed fact, you are entitled to a jury trial. Either side of a case — plaintiff or defendant — can ask the judge to grant summary judgment in its favor. Because the right to trial by jury to decide the facts of each case is so important to our system of justice, Florida law requires the burden to show there is no material fact in dispute be on the party seeking the summary judgment. Any change in Florida law that would allow a judge to grant summary judgment in cases where there is a disputed issue of material fact would have the effect of denying our Florida constitutional rights of access to the courts and trial by jury.


2016 Issues Book

Recently, some began calling for a change in Florida law that would place the burden on the party who is seeking a jury trial to prove that there is a disputed issue of fact before allowing the facts to be shown to a jury, as in federal court. This would have the effect of forcing that party to present all its evidence to the judge at a hearing with no jury. In effect, it would force the court to hear most cases twice — once on the motion for summary judgment and then again at the trial by jury—creating waste and slowing down our judicial system. The Florida Constitution gives the Florida Supreme Court the exclusive authority to make Rules of the Court. While the Legislature can repeal a Rule of the Court with a twothirds vote, in changing current law on summary judgment, the Legislature would be making Rules of the Court and thus, in violation of the Florida Constitution. Additionally, changing the standard would remove important restraints on the discretion of trial judges, allowing less scrupulous “activist” judges to control their dockets, dismiss some legitimate cases, and decide other cases without a jury. Also, some lawyers could use any new standard to drive up cost and waste time, slowing an already sluggish court system and delaying the resolution of many cases.



Florida is currently experimenting with socialized insurance. Those who can afford it pay more to cover those who can’t. Taxpayers are suffering, hospitals are suffering, and we aren’t even talking about ObamaCare.

Amazingly, private passenger vehicle owners are not required to have “Bodily Injury” liability protection to cover serious injuries to others caused by the at-fault driver. Florida is one of only two states that does not require coverage for bodily injury liability. (Insurance Information Institute). The unintended consequence of not requiring bodily injury liability protection is the harm that it causes innocent people. Florida taxpayers pick up millions each year through higher taxes for the cost-shifting of treating auto accident victims due to at-fault negligent drivers who don’t buy bodily injury liability insurance. Florida trauma centers provide the uncompensated care to accident victims injured by at-fault negligent drivers, absorbing much of the cost-shifting which leaves less money for treating indigent patients. Financially responsible car owners are paying higher insurance premiums for “Uninsured/ Underinsured Motorist” (UM) insurance, which covers serious injuries to car owners and their family caused by drivers with insufficient or no bodily injury liability insurance.

The Florida Justice Association believes the time has come for Florida to join the forty-eight other states that require all motorists to have MBI (or other proof of financial responsibility). At least twenty-eight states require MBI with policy limits of $25,000 per person/$50,000 per incident or greater.


In Florida, current law only requires car owners to carry property damage liability insurance, but not bodily injury liability insurance. The two mandatory car insurance policies required by current Florida law are “Property Damage” liability protection with minimum limits of $10,000 to cover damages you cause to someone else’s car, and “Personal Injury Protection” (PIP) of $10,000 to cover drivers and their passengers’ injuries, regardless of fault.

Mandatory Bodily Injury legislation would save financially responsible Florida drivers millions in insurance premiums. An actuarial analysis estimated that requiring Bodily Injury liability coverage would save Florida car owners an average of 31 percent on their UM insurance per vehicle. Also, this smart legislation would save Florida taxpayers and trauma centers millions of dollars. It would create a larger pool of drivers with bodily injury liability insurance coverage to cover their medical injuries and other damages, leaving tax dollars to cover other patients.

For the protection of all Floridians on the road, every driver should be required to carry insurance (or other proof of financial responsibility) to cover their responsibility for injuries they have caused to others. This MBI coverage could be used in conjunction with Personal Injury Protection (“PIP”) or as a replacement if PIP is ultimately repealed.

Legislation filed on this issue in 2015 Session — HB 803 and SB 1266. Result: Died in Committee

2016 Issues Book






You and your spouse are driving to the grocery store when a foreign tourist driving a rental car ignores a “yield” sign and collides with your car at full speed. You and your spouse are both injured and rushed to the emergency room by ambulance. At the time, you are not concerned about your medical bills because you assume that Florida law requires the foreign tourist to have liability insurance to drive a rental car, and that the law would also require the rental car company to cover any damages caused by the tourist that the tourist’s insurance didn’t cover. Unfortunately, you are totally wrong about what Florida law requires of rental car companies and people who rent cars. Amazingly, under current Florida law, drivers — including rental car drivers — are not required to have bodily injury liability insurance to cover serious injuries to others caused by the driver. Florida is one of only two states that does not require bodily injury liability insurance. Also, Florida requires the least “financial responsibility” of drivers than any other state. (Florida requires only “financial responsibility” of $10,000 per person and $20,000 per incident.) Although most people and businesses are financially responsible for the acts of the persons we allow to drive the cars we own, the rental car companies are not financially responsible for the persons they allow to drive their rental cars. That is because in 2005 the United States Congress enacted 49 U.S.C. § 30101 at the request of the rental car companies and eliminated their liability for the acts of the persons they allow to drive their rental cars.


2016 Issues Book

However, at the same time, Congress created an exception allowing individual states to maintain their minimum financial responsibility or insurance standards. Florida should amend its financial responsibility statute to require rental car companies to have a high level of financial responsibility and to require drivers of rental cars to carry bodily injury liability insurance. The Florida Legislature should require all drivers of rental cars — especially foreign tourists — to carry at least $100,000 per person and $300,000 per incident of bodily injury liability insurance and at least $50,000 in property damage insurance. The law could allow that the rental car companies sell the insurance to the drivers and make a profit. Further, Florida should require that the rental car company be fully financially responsible if the rental car driver does not carry the required insurance. Remember: taxpaying Floridians often have no recourse against those who rent cars, hurt people and have no liability insurance — this is especially true when we are injured by foreign tourists who return to their home country. Legislation filed on this issue in 2015 Legislation SB976 and HB819 Result: Died in Committee



Under current Florida law, without prejudgment interest, wrongdoers and their insurance companies have an incentive

to delay and drag-out litigation — even when the defendant knows he or she will eventually lose. Were Florida to join the states that allow prejudgment interest in all cases, there would be no incentive to delay just for the sake of delay. This would benefit the courts as well as persons injured due to the wrongdoing of others. Legislation promoting the award of prejudgment interest in all cases, including personal injury and wrongful death, would bring Florida in line with more than 30 other states including Texas, Ohio, California, Colorado, and Georgia.


Prejudgment interest is interest that accrues from the date of a breach of contract or wrongful act until a judgment is rendered in a lawsuit. The purpose of prejudgment interest is to compensate the innocent party for the loss of the ability to use his or her money due to the wrongful acts of a defendant. More than 30 states allow prejudgment interest in all litigation, including personal injury and wrongful death. Along with seven other states, Florida does not allow prejudgment interest in personal injury and wrongful death cases, but does so in contract and in other tort cases. The accrual of prejudgment interest should begin at the time of the injury or damage to the plaintiff and should continue until time that the judgment is entered by the Court.

Legislation filed on this issue in 2015 Session – SB 794 and HB 941. Result: Died in Committee

2016 Issues Book





Should medical providers be held to a different standard than anyone else when their negligent conduct results in the wrongful death of their patients? Unfortunately, Florida law currently says “Yes.” Florida’s wrongful death statute currently allows adult children and parents of adult children to recover damages in all wrongful death cases where there are no other survivors – except in cases of medical malpractice. When the issue of wrongful death was originally introduced in the Florida Legislature, medical providers and their lobbyists were able to carve out for themselves a loophole that protects negligent physicians in the most extreme medical malpractice cases. Bipartisan legislation has been proposed to close this loophole and allow recovery by certain survivors in all wrongful death cases. It is past time for the legislature to act and remedy this injustice. In fairness, negligent medical providers should not enjoy special privileges when their conduct kills a patient. In application, this is the result under current law: If a doctor is involved in a car accident in which he drove drunk, killing an innocent victim, the victim’s


2016 Issues Book

adult children can recover full damages for the death of their loved one. However, if that same doctor is drunk and kills a patient on the operating table, the medical provider escapes accountability as a practical matter and no recovery is allowed for the victim’s adult children. A consequence of the wrongful death loophole is that a negligent medical provider can only be held accountable for their conduct when the injured patient survives. If the patient tragically dies, the negligent physician can escape accountability for their harmful conduct, ironically holding them less accountable for a death than an injury. Under the current wrongful death statute in Florida, when no spouse exists, some survivors are arbitrarily barred from holding negligent medical providers accountable for their harmful acts. This loophole should be eliminated to allow the families of victims who suffer the ultimate medical malpractice to recover damages for their tragic loss. The majority of states do not have this unjust inequity and allow adult children and parents of adult children to bring an action for the wrongful death of a loved one. Florida should join these states and close the wrongful death loophole.



Current law allows the Florida Board of Medicine, a regulatory body made of predominantly all health care providers, to be the decision maker on what these records should cost. Unfortunately, it is in most of their best interest to continue to allow these costs to escalate despite the efficiencies that should drive the prices down. The Legislature should be the regulatory body over these costs as a result of the nonpolicing that is currently occurring.

disc” flat fee and hard copy records should be codified at the current capped rate of no more than $1.00 per the first 25 pages and $0.25 for each page thereafter.

Imagine if you wanted to access something you have paid a significant amount for over the course of a period of your life— records of your medical care—only to find out that in order to receive it you have to


As a result of technological advances in the past several years there have been significant cost efficiencies in the creation, administration, duplication and transmission of secure medical records. The costs of these records should be going down as a result of this progress, but instead health care providers and records companies use the opportunity to implement “access taxes” on patients when they need those records by charging up to $1.00 per page. Due to regulatory loopholes, these providers and companies are collecting huge windfalls for the cost of these records and, as a result of other health care providers being the only regulatory body overseeing these costs, they want to charge even more.

pay another exorbitant fee in order to get it. Your insurance dollars, deductibles and out of pocket payments don’t cover these records and providers use it as a tool to enhance their bottom line.

Legislative leaders should consider taking on this oversight and creating a fair cost for accessing records from health care providers. Digital records should be placed on a “per

2016 Issues Book



HISTORY OF MEDICAL MALPRACTICE LAWSUIT LIMITS - 1975-2015 2013 Tort Reforms Enacted: 1. Medical Negligence Actions Clarifies a heath care practitioner’s or provider’s right to legal counsel, authorizes a prospective defendant to interview a claimant’s treating health care providers (allows ex parte communications), and revises the qualifications of experts authorized to testify in medical negligence actions against a specialist (experts must specialize in the same medical specialty as the defendant). 2011 Tort Reforms Enacted: 1. Sovereign Immunity: Granted to Shands and University of Miami and similar entities. 2. Expert Witness: Certification of out-of-state expert witnesses; disciplinary procedures 3. Medicaid Caps: $200,000/$300,000 caps on non-economic damages suffered by Medicaid patients. Other reforms already in Florida law: 1. Sovereign Immunity for Doctors providing “free care”: Total immunity for doctors, personally, and $100,000 cap otherwise. 2. Brain Damaged Baby Caps (NICA): Babies who suffer brain injury due to negligent delivery only receive governmental assistance for rehab and other expenses; $100,000 cap on non-economic damages paid to the parents by hospitals/doctors who participate in NICA. 3. ER Immunity: During treatment of an emergency, the ER doctor has immunity unless patient can prove “reckless disregard for the consequences”, a nearly impossible hurdle. 4. ER Caps: $150,000/$300,000 non-economic damage caps for ER claims.* 5. Doctor Caps: $500,000/per doctor for non-economic damages (for death/serious injury, up to twice this amount).* 6. Hospital Caps: $750,000 per claim for non-economic damages (for death/serious injury, up to twice this amount).* 7. Arbitration Caps: If both sides agree to arbitration, then $250,000 non-economic caps ($125,000 cap if claimant’s injuries result in 50% reduction in capacity to enjoy life); $350,000 cap if the claimant rejects the offer to arbitrate. 8. Punitive Damages Caps: The award may not exceed


2016 Issues Book

$500,000 or 3x compensatory damages, whichever is greater. 9. Higher Burden of Proof for Punitive Damages: Patient must prove by “clear and convincing” evidence that the doctor was personally guilty of intentional misconduct/ gross negligence. 10. Frivolous Cases/57.105 Sanctions: Sanctions against patient and patient’s attorney for bringing frivolous cases. 11. Attorney Certification/Sanctions: Patient’s attorney shall make a reasonable investigation to insure that there is a good faith belief of negligence, including a certificate of counsel and a written opinion from an expert finding negligence. If the patient’s attorney did not sign the certificate in good faith and the case is baseless, the court shall award attorney’s fees/costs against patient’s counsel and submit the matter to the Florida Bar. 12. Sports Doctors Immunity: Protection for physicians who render care to athletes before athletic event or in emergency. 13. Standard of Care: Patient must prove care fell below the “Prevailing standard of care”, which is higher standard than negligence. 14. Expert Witness Requirements: Only an actively practicing doctor can testify against another doctor. 15. Pre-Suit Requirements: There is a 90-day pre-suit screening requirement, including informal discovery. 16. No Wrongful Death Claim for Unmarried Adult: If an adult dies without spouse or child under 25, there is no med mal claim 17. Statute of Limitations: Short 2-year SOL for med mal claims. 18. Consent: Signed consent form raises a presumption of patient consent to procedure. 19. Mandatory Mediation: Court shall order mediation 120 days after filing suit and a settlement conference 3 weeks before trial. Other protections available to Florida doctors and hospitals: Remittitur: If excessive, the Court can reduce the verdict. Collateral Source Setoffs: Awards reduced by amounts available to patient from other sources (e.g, Social Security benefits). * Estate of McCall v. United States, 642 F.3d 944 (11th Cir. 2011)

Tort History 1975-2015

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TORT HISTORY EXECUTIVE SUMMARY Over the last several decades, the Florida Legislature has approved broad restrictions on the rights of Florida’s citizens to seek justice. Most of these restrictions provide partial or full immunity to the corporate and medical industries. These immunities have stripped Florida’s citizens not only of their rights under the law, but also of many vital protections that have historically served to keep consumers safe by deterring negligence.

board class action restrictions, total abolition of rental car vicarious liability, elimination of liability for vaccine makers, and elimination of liability for gun makers. _____________________________________________ Some provisions have more than one effect and are noted in multiple places.

The scope of the immunities passed since 1975 is surprisingly broad. At every level of interaction, private businesses have been granted a privileged legal position, leaving citizens and consumers at a distinct disadvantage. The overall effect has been to foster a lack of professional and personal responsibility among the corporate community. Meanwhile, Florida’s consumers and citizens have increasingly fewer and fewer opportunities to seek justice and protection under Florida law when they are harmed by the resulting irresponsible corporate behavior. As a result, when immune corporations or medical providers cause injury or death, it is not the responsible party who must bear the full cost of the victim’s medical bills and lost wages. It is instead the Florida taxpayer who must foot the bill.

Tort Provisions Enacted by the Florida Legislature 1975 – Present Over the last several decades, the Florida Legislature has approved significant restrictions on the rights of Florida’s citizens to seek justice. Most of these restrictions provide partial or full immunity to the business, corporate and medical industries. These tort immunities have stripped Florida’s citizens not only of their rights under the law, but also of many vital protections that have historically served to keep consumers safe by deterring negligent conduct. As a result, when immune businesses cause injury or death, it is not the responsible party who must pay the victim’s medical bills and lost wages. It is instead the Florida taxpayer who must bear the cost.

Of the major tort provisions passed since 1975: • 86 Grant Immunities and Protections to Private Entities • 42 Apply to all private businesses and corporations • 29 Apply exclusively to medical providers • 8 Apply exclusively to nursing homes • 3 Apply exclusively to HMO and Insurance Companies Of all of these • 31 Directly grant some type of immunity • 20 Institute caps on awards or fees, or provide for other award deductions • 13 Provide enhanced presuit requirements for plaintiffs • 6 Restrict and limit punitive damages • 6 Decrease Statutes of Limitation or Repose • 6 Provide for restrictions on Workers’ Compensation and/or benefit reductions • 5 Restrict and/or eliminate Joint & Several Liability • 2 Restrict Expert Witness Testimony • 6 Grant Immunities and Protections to Government Entities • 3 Provide for Studies of Tort-Related Issues It is worth noting that these provisions do not include the numerous broad immunities that have been passed at the Federal level, the most recent of which include across-the-


2016 Issues Book

The following provisions do not include the numerous broad immunities that have been passed at the Federal level, the most recent of which include across-the-board class action restrictions, elimination of rental car vicarious liability, elimination of liability for vaccine makers, and elimination of liability for gun makers. •

YEAR: 2013 Medical Negligence Actions – Clarifies a heath care practitioner’s or provider’s right to legal counsel, authorizes a prospective defendant to interview a claimant’s treating health care providers (allows ex parte communications), and revises the qualifications of experts authorized to testify in medical negligence actions against a specialist (experts must specialize in the same medical specialty as the defendant). Medicaid Recoveries – Amended the Medicaid Third Party Liability Act with respect to procedures for challenging certain recovered medical expenses to ensure compliance with federal law. It provides for administrative determination of disputes regarding the amount of medical expenses recovered from a third party liable in tort that is covered by a Medicaid lien. Agritourism – Establishes a limitation on liability from

inherit risks for the land owner, agritourism operator, and employees if a notice of risk is posted on the land. Specific warning language must be posted in a clearly visible location at the entrance to the agritourism location and at the site of the agritourism activity. The bill denies use of the limited liability defense if the owner, agritourism operator, or employee fails to post the sign as required by this act or fails to place the notice of inherent risk in the contract. Deceptive and Unfair Trade Practices/Motor Vehicle Sales – Created a pre-suit process for actions against motor vehicle dealers under the Florida Deceptive and Unfair Trade Practice Act. Requires a claimant to provide a written demand letter with specific contents to a motor vehicle dealer at least 30 days prior to filing suit or initiating arbitration. If the dealer, within 30 days after receipt of the demand letter, pays the claimant the amount of actual damages and a surcharge of the lesser of $500 or 10 percent of the damages claimed, then the claimant is precluded from initiating litigation or arbitration. Upon payment, the dealer is released from liability from future claims relating to the incident referenced in the letter. A dealer’s compliance with the demand letter does not constitute an admission of liability or fault, and is not admissible into evidence as an offer to compromise. Addresses attorney fees. Expert Testimony/Daubert – Replaces the Frye standard with the Daubert standard. Under the Daubert test, when there is a proffer of expert testimony, the judge as a gatekeeper must make a preliminary assessment of whether the reasoning or methodology properly can be applied to the underlying facts at issue. Prohibits the disclosure of inadmissible facts or data to a jury by the proponent of an expert opinion or by inference unless the court determines that their probative value in assisting the jury’s evaluation of the expert’s opinion substantially outweighs their prejudicial effect. As a result of the amendments, the effect of s. 90.704, F.S., is conformed to the effect of Federal Rule of Evidence 703. YEAR: 2012 PIP Multiplier – Prohibits the use of contingency risk multipliers in calculating fee awards in no-fault disputes. Previously, it was within the court’s discretion whether or not to use a contingency risk multiplier of up to 2.5 times the lodestar in determining the fee award. Justification for a multiplier was based on the complexity of the case and the difficulty in obtaining counsel. The use of contingency fee risk multipliers in federal cases was effectively eliminated in 1987, and Florida now prohibits their use in PIP cases.

• Premises Liability/Sovereign Immunity – Allows private

property owners through written agreements with the state to enjoy limitations of liability protection when making their land available to specific persons, as opposed to only “the public,” for the purpose of hunting, fishing or wildlife viewing. To receive this immunity, the private landowner must provide notice of the liability limits to those using the land and must not derive revenue from patronage of the property for outdoor recreational purposes.

YEAR: 2011 • Crashworthiness – Changes the apportionment of damages in products liability cases in which a plaintiff alleges that he or she received additional or enhanced injuries in an accident due to a defective product (e.g., crashworthiness cases). The bill contains intent language and legislative findings that the provisions in the bill are intended to be applied retroactively and overrule D’Amario v. Ford Motor Co., 806 So. 2d 424 (Fla. 2001). • Medical Malpractice Litigation – Among other issues: • Expert Witness Licensing/Disciplinary Action – Creates a certification process for out of state expert witnesses and requires a physician, osteopathic physician, or dentist who provides expert testimony concerning the prevailing professional standard of care of a physician, osteopathic physician, or dentist to be licensed in this state or possess an expert witness certificate issued by the Department of Health. Florida licensed physicians and dentists and practitioners with an expert witness certificate will be subject to disciplinary action for offering false or misleading information as an expert witness. • Cataract Surgery Consent Form – The Board of Medicine is required to create by rule a standardized informed consent form setting forth the risks of cataract surgery. An executed informed consent form creates a rebuttable presumption that the physician properly disclosed the risks of cataract surgery in a civil action or administrative proceeding. Risks described in the signed informed consent form may not be classified as an “adverse incident.” • Exclusive Right of Veto – Requires an insurance policy or self-insurance policy for medical malpractice coverage to clearly state whether or not the insured has the exclusive right of veto of any admission of liability or offer of judgment. The bill repeals the requirement that a self-insurance policy or insurance policy for medical malpractice must authorize the insurer

2016 Issues Book


TORT HISTORY to make this decision without the permission of the insured medical provider if the action is within the policy limits.

• Volunteer Team Physicians: A volunteer team physi-

cian at a sporting event sponsored by an elementary or secondary school, or a licensed practitioner who gratuitously conducts a medical evaluation of a student prior to the student participating on an interscholastic athletic team, is not liable for civil damages for the care, treatment, or evaluation unless it was conducted in a wrongful manner. • Medicaid / Caps on Noneconomic Damages — Creates, among many other things limitations on noneconomic damages for negligence of a practitioner providing services and care to a Medicaid recipient. Noneconomic damages may not exceed $300, 000 per claimant unless the claimant pleads and proves, by clear and convincing evidence, that the practitioner acted in a wrongful manner, defined as acting in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. An individual practitioner is not liable for more than $200,000 in noneconomic damages, regardless of the number of claimants, unless a claimant pleads and proves, by clear and convincing evidence, that the practitioner acted in a wrongful manner. • Sovereign Immunity / University of Florida J. Hillis Miller Health Center — Provides that Shands Teaching Hospital and Clinics, Inc.; Shands Jacksonville Medical Center, Inc.; and Shands Jacksonville HealthCare, Inc.; and any not-for-profit subsidiary of those entities that directly delivers health care services “shall be conclusively deemed corporations primarily acting as instrumentalities of the state” for purposes of sovereign immunity. • Sovereign Immunity / University of Miami Faculty — Establishes legislative findings that nonprofit independent private colleges and universities located and chartered in Florida, which own or operate medical schools, and which permit their employees or agents to provide patient services in teaching hospitals pursuant to an affiliation agreement or other contract, should be afforded sovereign immunity protections under s. 768.28, F.S. •


YEAR: 2010 Child Liability Waivers/Motorsport Liability Releases — Provides statutory authority for natural guardians, on behalf of their minor children, to execute pre-injury

2016 Issues Book

releases or waivers, waiving any claim or cause of action against a commercial activity provider, or its owners, affiliates, employees, or agents, for the inherent risks involved in an activity. Additionally, the bill provides that a motorsport liability release signed by a natural guardian on behalf of a minor is valid to the same extent provided for other nonspectators, if the minor is participating in a sanctioned motorsports event. Sport Coaches / Background Checks — Requires an independent sanctioning authority to conduct a background screening of each current and prospective athletic coach. The bill further provides that in a civil action for the death of, or injury or damage to, a third person caused by the intentional tort of an athletic coach that relates to alleged sexual misconduct by the athletic coach, there is a rebuttable presumption that the independent sanctioning authority was not negligent in authorizing the athletic coach if the authority complied with the background screening and disqualification requirements prior to such authorization. Negligence/Slip and Fall — Repeals the current statute providing the burden of proof in “slipand-fall” negligence claims and delineates the new burden of proof in these cases. Reinstates the requirement that the plaintiff prove that the business had actual or constructive knowledge of the dangerous condition causing the injury, but specifies that the business owner or operator retains any commonlaw duties owed to invitees. T H. Lee Moffitt Cancer Center & Research Institute — Provides for an extension of sovereign immunity from the H. Lee Moffitt Cancer Center and Research Institute to its not-forprofit corporations and subsidiaries. Contingency Fee Agreements/Department of Legal — Provides that, before the Dept. of Legal Affairs can enter into a contingency fee contract with a private attorney, the Attorney General must make a written determination that contingency fee representation is both cost effective and in the public interest. It also provides contingency fee caps on the amount that a private attorney may be awarded.

YEAR: 2009 Workers’ Compensation Attorneys Fees Restrictions — Removes the word “reasonable” from the workers’ compensation attorney fee statute in an effort to reverse the Murray decision.

YEAR: 2008 • NO TORT IMMUNITIES PASSED YEAR: 2007 • NO TORT IMMUNITIES PASSED • CSX Trespassing – Railroads need not post to declare trepassers “criminal trespassers.” VETOED •

YEAR: 2006 Elimination of Joint and Several Liability in Civil Actions – Abolishes joint and several liability for economic damages in negligence cases. As a result of this bill, a defendant’s liability for damages will only be based on the defendant’s percentage of fault as allocated by a jury. Class Action Lawsuits – Prohibits some nonresidents from participating as plaintiffs in class action lawsuits filed in Florida courts and requires that class action plaintiffs allege and prove actual damages if seeking statutory penalties under chapters 320, 501, 520 and 521, F.S. These chapters pertain to motor vehicles, consumer protection, retail installment sales and motor vehicle lease disclosure. Statute of Repose: Construction Contracting – Decreases the period within which an action based on design, planning or construction of an improvement to real property may be filed from 15 years to 10 years. Sovereign Immunity: Law Enforcement – Provides that an employing law enforcement agency is not liable for injury, death or property damage caused by a person fleeing from a law enforcement officer in a motor vehicle if the pursuit is not conducted in a reckless manner, the officer reasonably believes the person fleeing has committed a forcible felony and the pursuit is conducted in accordance with a written policy governing high speed pursuit where the officer has received instruction from the employing agency on the high speed pursuit policy. Supersedeas Bond – Places an upper limit on a supersedeas bond at $50 million per appellant regardless of the type of appeal or case, except for certified class actions subject to 768.733, F.S. A party seeking a stay of execution pending review of a judgment may move the court to reduce the amount, which the court may grant unless the appellant has an insurance or indemnification policy applicable to the case. Caps on Damages: Community Behavioral Health Agencies – Grants detoxification programs, addictions receiving and designated public receiving facilities a $1 million cap on net economic damages and a $200,000 cap on non-economic damages in negligence actions based on

services for stabilization of a mental health or substance abuse crisis. The provider is required to obtain and maintain general liability minimum coverage in the amount of $1 million per claim and $3 million per incident. • Charter Schools Sponsor Immunity from Liability – Grants civil immunity to sponsors of charter schools for personal injury, property damage or death due to an act or omission of an officer, employee, agent or governing body of the charter school. •

YEAR: 2005 Asbestos and Silica Compensation Fairness Act — Imposes a series of requirements on individuals who wish to file an asbestos or silica claim. Creates a threshold that an individual must meet in order to file suit. Asbestos-Related Claims Successor Corporations — Limits the liability of successor corporations that have assumed asbestos-related liabilities as the result of a merger or consolidation that occurred prior to January 1, 1972. Road Contractor Immunity — Limits the liability of: (1) Florida Department of Transportation (FDOT) construction and maintenance contractors whose work is incompliance with department contracts; (2) FDOT contracted design engineers whose work conforms to FDOT design standards; and (3) FDOT or its agents in cases involving accidents that occur in a construction zone where one or more of the accident participants was driving recklessly or impaired by drugs or alcohol.

• Streetlight Provider Immunity — Provides streetlight

providers with immunity from lawsuits alleging negligent streetlight maintenance if they repair inoperative streetlights6 within certain time periods and provide a process for customers to report outages. In most cases, a streetlight provider must repair inoperative streetlights within 60 days of actual notice of an outage. More complex repairs must be made within 180 days. Following a state of emergency, providers have 365 days to make a repair. • Beach Safety: Rip-Tide Immunity — Grants immunity to state, local or regional governmental entities or authorities, as well as their individual employees or agents, for any injury or loss of life caused by changing surf or other naturally occurring conditions along coastal areas. The immunity does not require that uniform warning and safety flags or notification signs developed by the Department of Environmental Protection be posted. • Rental Car: Dangerous Instrumentality Doctrine — Expands the scope of the definition of the term “rental

2016 Issues Book


TORT HISTORY company” to allow certain companies to qualify for the vicarious liability caps. The definition was expanded to include: (1) A related rental or leasing company that is a subsidiary of the same parent company as that of the renting or leasing company that rented or leased the vehicle; and (2) The holder of a motor vehicle title or an equity interest in a motor vehicle title if the title or equity interest is held under or to facilitate an asset-backed securitization of a fleet of motor vehicles used solely in the business of renting or leasing motor vehicles to the general public and under the dominion and control of a rental company in the operation of such rental company’s business. NOTE: The Federal Transportation Act of 2005 completely abolished all Vicarious Liability for rental car companies. • Property Insurance: Valued Policy Law (Mierzwa) — Allows insurance companies to further restrict homeowners’ ability to recover losses when their homes are totally destroyed by a combination of wind and flood damage in a hurricane. The bill was passed in response to the 2004 Fourth District Court ruling, Mierzwa v. Florida Windstorm Underwriting Assoc., 877 So.2d 774 (Fla. 4th DCA 2004). The ruling required that windstorm insurers pay full policy limits when the majority of a home’s damage is caused by wind, regardless whether or not there was additional damage caused by flood or other hazards. YEAR: 2003

• “Code Blue” Immunity — Extends “Good Samaritan”

immunity to health care providers, including hospitals, that provide emergency services. Redefines “reckless disregard” standard of care as conduct that the practitioner knew or should have known created an unreasonable risk of injury. Extends immunity to health care practitioners responding to “code blue” emergency situations for patients other than their own, unless their conduct is willful and wanton and likely to result in injury. • HMOs: Vicarious Liability— Specifies that a healthcare provider is not deemed an agent or employee of an HMO for purposes of medical malpractice vicarious liability. • Insurers & HMOs Limitation of Liability — Specifies that an insurer and/or HMO may not be held liable for the negligence of a health care provider in any amount greater than the amount of damages that may be imposed directly against the provider.7 • College Athletics Contract Practitioners — Provides sovereign immunity to health care practitioners who contract with state university boards of trustees for medical


2016 Issues Book

services to student athletes while acting within the scope of their duties. Presuit Screening Panels in Medical Malpractice Cases — Requires Department of Health (DOH) to study the feasibility of medical review panels as part of the presuit process. Report date: 12/31/03, the report recommended against the use of presuit screening panels. Expert Witnesses Qualifications — Provides substantially revised criteria for expert witnesses in medical malpractice cases. Experts must have similar credentials to the medical professionals they testify against. If the defendant is a specialist, the expert must specialize in same or similar specialty and have devoted time within the last three years to clinical practice, consulting, teaching or research in the same or similar specialty. If a general practitioner, the expert must have devoted time within the last five years to clinical practice, consulting, teaching or research in general practice. If another provider, the expert must have devoted time within the last three years to clinical practice, consulting, teaching or research in the same or similar profession. Mediation Requirement in Medical Malpractice Cases — Requires in-person mediation within 120 days after a suit is filed if the parties have not agreed to binding arbitration. Non-Economic Damage Cap for Health Care Practitioners in Medical Malpractice Cases — Limits non-economic damages for health care practitioners to $500,000 per claimant, regardless of number of practitioners, and $500,000 per practitioner, regardless of number of claimants. Provides for a total of $1 million recoverable noneconomic damages from all practitioners, regardless of the number of claimants, if the negligence resulted in a permanent vegetative state or death or caused catastrophic injury and the court finds that there would be manifest injustice because special circumstances involve particularly severe non-economic harm.Non-Economic Damages Cap for Nonpractitioners (Health Care Facilities) in medical malpractice cases. For nonpractitioners, limits damages to $750,000 per claimant, regardless of number of nonpractitioners, and $750,000 per nonpractitioner, regardless of number of claimants; provides for a total of $1.5 million recoverable from all nonpractitioners, regardless of the number of claimants, if the negligence resulted in a permanent vegetative state or death or caused catastrophic injury and the court finds that there would be manifest injustice because special circumstances involve particularly severe noneconomic harm. [held unconstitutional by Estate of

McCall v. United States, 642 F.3d 944 (11th Cir. 2011)]

• Construction Defects: Right-to-Cure — Establishes a

right-to-cure process for contractors and subcontractors in construction defect cases. • Attorney Fee Caps in Workers’ Compensation — Prohibits payment of claimant’s attorney fees on an hourly rate. Provides an exception for medical-only claims where the percentage fee would not fairly compensate the claimant’s attorney. In such cases a Judge of Compensation Claims (JCC) may award against a carrier an hourly fee at a maximum rate of $150 per hour, up to a maximum of $1,500 per accident.8

• Offer of Judgment Fee Caps in Workers’ Compensa-

tion — Provides that, if there is a settlement offer tendered at least 30 days before trial and not accepted by the claimant, any fees taxable against the employer are calculated based only on the difference between the amount of the offer and the amount awarded at trial. • Permanent Total Disability (PTD) Eligibility Restricted — Denies eligibility for PTD benefits if the employee is capable of engaging in at least sedentary employment. Eliminates use of the Social Security disability standard as an eligibility criterion. Presumes PTD if the employee suffers one of the qualifying anatomical injuries listed under the current statutory definition of “catastrophic injury” unless the employer establishes that the employee is capable of engaging in at least sedentary employment within a 50-mile radius of his or her residence. Provides that an employee without a qualifying injury can be determined to be PTD if he or she is not able to engage in at least sedentary employment within a 50-mile radius of their residence.

• Permanent Total Disability Benefits Cut Off — Cuts

off all PTD benefits at age 75 unless the employee is not eligible for Social Security retirement or disability benefits because the injury prevented the employee from working sufficient quarters to be eligible for such benefits. • Permanent Total Disability Supplemental Benefits Reduction and Cut Off — Reduces supplemental (cost of living) benefits from 5 percent to 3 percent of the compensation rate. Cuts off supplemental benefits entirely at age 62 unless the employee is not eligible for Social Security retirement or disability benefits because the injury prevented the employee from working sufficient quarters to be eligible for such benefits.

• Coverage and Benefits for Mental or Nervous Injuries Restricted — Requires that, for a mental or nervous injury to be compensable, a compensable physical injury must be shown by clear and convincing evidence to be the major contributing cause (more than 50 percent responsible) of the mental or nervous injury. Limits duration of temporary benefits for a mental or nervous injury to six months after maximum medical improvement of the physical injury. Limits permanent impairment benefits based on permanent psychiatric impairment to 1 percent impairment. • Subcontractor Tort Immunity — Extends immunity to subcontractors on a job site both “horizontally” (actions by other subcontractors or their employees) and “vertically” (actions by the general contractor or its employees). Immunity does not apply if the subcontractor fails to provider workers’ compensation coverage to its own employees or if the subcontractor’s own gross negligence was the major contributing cause of the injury. • Immunity for Intentional Torts Against Employers — Grants an employer immunity from liability except where there is a deliberate intent to injure or kill the employee or where the employer knew that injury or death was virtually certain and the employer deliberately concealed the danger from, or misrepresented it to, the employee.

YEAR: 2001 • Punitive Damages Limitation in Nursing Home and Assisted Living Facility Cases — Removes the knowledge requirement regarding an employer who condones, ratifies or consents to the conduct of the employee. Creates a tiered cap system: limits punitive damages to the greater of $500,000 or three times compensatory damages; if the defendant’s wrongful conduct was motivated solely by unreasonable financial gain and defendant had actual knowledge of the dangerous nature of the conduct, punitive damages are limited to the greater of $2 million or four times compensatory damages; if at the time of injury the defendant had specific intent to harm the claimant, there is no limit on punitive damages. • Burden of proof changed to clear and convincing. • Presuit Requirement in Nursing Home and Assisted Living Facility Cases — Requires a mandatory 75-day presuit notice and investigation process for claims against nursing homes and assisted living facilities for violations of residents’ rights and negligence involving personal injury or death.

2016 Issues Book


TORT HISTORY • Mandatory Mediation in Nursing Home and Assisted

Living Facility Cases — Requires mandatory mediation within 30 days of the completion of pre-suit and prior to suit being filed. Elimination of Attorney Fees in Nursing Home and Assisted Living Facility Cases — Eliminates attorney fees that must be paid by the nursing home in nursing home and assisted living facility cases for claims alleging violations of residents’ rights and negligence involving personal injury or death. Elimination of Negligence Per Se — To maintain a claim for violations of a resident’s rights and negligence involving personal injury or death, the resident, or the personal representative of the estate of the resident, is no longer able to prevail simply by establishing a violation of the resident’s rights. To maintain a claim for violations of the resident’s rights and negligence involving personal injury or death, the resident or the personal representative of the estate of the resident, must establish that the nursing home or assisted living facility owed a duty to the resident, the nursing home or assisted living facility breached the duty and that the breach caused damages to the resident. Election of Damages — When a long-term care facility breaches a duty to a resident and causes the death of the resident, the personal representative of the estate of the resident must elect either recovery of damages for the pain and suffering of the deceased resident from the date of the injury until death or wrongful death damages, which include the recovery for pain and suffering damages of adult children for the death of a parent resident. Exclusive Remedy in Nursing Home and Assisted Living Facility Cases — Provides that Chapter 400 is the exclusive remedy for residents to maintain claims for violations of residents’ rights and/or negligence involving personal injury or death. Statute of Limitations Reduction in Nursing Home and Assisted Living Facility Cases — Drastically reduces the statute of limitations from four to two years. Provides that no extension of the statute of limitations by petition for extension is available for medical negligence claims. YEAR: 1999

• Comparative Fault and Joint & Several Liability —

Eliminates application of joint & several liability in cases under $25,000. Requires a party alleging the fault of a nonparty (per Fabre) to plead same affirmatively and identify the nonparty (if known) by motion or in the initial responsive pleading when defenses are first presented (ab-


2016 Issues Book

sent a showing of good cause.) In order for fault to be apportioned to the nonparty, the defendant must prove the nonparty’s fault by a preponderance of the evidence. Establishes a tiered cap system for joint & several liability for economic damages: For any defendant whose fault is greater than the plaintiff’s: If defendant’s fault is 0-10 percent, no joint & several liability for economic damages (0-9 percent if plaintiff is faultless); If defendant’s fault is 11-24 percent, $200,000 cap on economic damages subject to joint & several liability (10-24 percent and $500,000 if plaintiff is faultless); If defendant’s fault is 25-50 percent, $500,000 cap on economic damages subject to joint & several liability ($1 million if plaintiff is faultless); or If defendant’s fault is greater than 50 percent, $1,000,000 cap on economic damages subject to joint & several liability ($2 million if plaintiff is faultless). Specifies that joint liability is in addition to several liability for economic and noneconomic damages.

• Punitive Damages: Type of Misconduct Required —

Immunizes employers from liability for punitive damages based on act of an employee unless the employer actively participated in or approved the conduct or engaged in grossly negligent conduct that contributed to the loss. Defines “gross negligence” to require “conscious disregard or indifference to the life, safety or rights” of the injured.

• Punitive Damages: Limitations on Damages — Pro-

vides that there can be no more than one punitive damage award for the same act or single course of conduct unless the court determines by clear and convincing evidence that the prior award(s) (including any state and federal award) was insufficient to punish the defendant. In such cases, the court may award punitive damages, but there is a set-off for prior awards. Allows the court to “consider” whether or not the defendant has ceased the egregious conduct. Provides that attorney fees are payable based on the final judgment for punitive damages. Provides a tiered cap system for punitive damages: Punitive damages limited to the greater of $500,000 or three times compensatory damages; If defendant’s wrongful conduct was motivated solely by unreasonable financial gain and defendant had actual knowledge of the dangerous nature of the conduct, then punitive damages are limited to the greater of $2 million or four times compensatory damages; or Where, at the time of injury, the defendant had specific intent to harm the claimant, there is no limit on punitive damages.

Punitive Damages: Burden of Proof — Requires plaintiff to prove entitlement to an award of punitive damages by clear and convincing evidence. Specifies that the greater weight of evidence burden of proof applies to the determination of the amount of damages. Products Liability: Statute of Repose — Creates a products liability statute of repose running 12 years from the date of sale, unless the manufacturer has represented that the product has an expected useful life of longer than 10 years. In such cases, the repose period runs to the end of the expected useful life. Exceptions are provided for escalators, elevators, and improvements to real property, as well as a 20-year repose period for vessels. Provides that there is no repose period for a product if exposure to the product occurs within 12 years of sale, but the injury does not manifest itself until after the repose period. Products Liability Defenses — Expands the prohibition against the use of evidence of subsequent remedial measures to prove negligence. Requires the finder of fact to consider the state of the art of scientific and technical knowledge at the time of manufacture, not at the time of injury. Provides for a rebuttable presumption of no liability based upon compliance with government rules at time of manufacture. Provides for a rebuttable presumption that a product is defective if it is not in compliance with government rules at time of manufacture. Broad government rules language encompasses medical devices and drugs subject to FDA approval. Statue of Repose: Barred Actions — Actions that would not have been barred under prior law (i.e., involving products already on the market) must be brought by July 1, 2003. Vicarious Liability: Motor Vehicles — Limits vicarious liability for certain types of vehicles to $100 per person/$300,000 per incident plus $500,000 additional for economic damages if the lessee or operator has less than $500 insurance (combined limits.) Provides a set-off for all other available insurance or self-insurance covering the lessee or operator. Limits do not apply to commercial vehicles being used to carry hazardous materials unless at time of lease the lessee indicates in writing that the vehicle will not be used for such transport or the lessee has $5 million in insurance coverage. NOTE: The Federal Transportation Act of 2005 completely abolished all vicarious liability for rental car companies.

YEAR: 1998 • Hearsay Exception — Creates an exception to the prohi-

bition against hearsay evidence to permit the introduction of former trial or deposition testimony of nonparties even though the parties to the present action may never have had the opportunity to cross-examine the witness. YEAR: 1996

• Statute of Limitations Tolled for Minors — Suspends

the standard four-year statute of repose and the seven-year statute of repose for cases involving fraudulent concealment so that these periods cannot bar a claim that is filed prior to the child’s eighth birthday. Retains the current two-year statute of limitations. 12

YEAR: 1993 • The Florida Birth-Related Neurological Injury Compensation Plan (NICA) — Shortens statute of limitation from seven years to five years in NICA Cases. •

• •

YEAR: 1992 Sovereign Immunity for Free Care — Grants sovereign immunity to all health care providers under contract with a state or local government. Grants sovereign immunity to private practicing physicians who participate in Florida Health Care Corps. Sovereign Immunity: Board of Regents — Grants sovereign immunity to agents of the Board of Regents who are acting on behalf of private hospitals. Such agents shall not be considered agents of any other person or entity. Practice Parameters — Provides that physicians who comply with practice parameters will have an affirmative defense to negligence claims. (Repealed) Reckless Disregard Standard — Applies the Reckless Disregard Standard for negligence caused by EMTs and physicians delivering babies after complications arising as a result of care by midwives. YEAR: 1991 Civil Liability/Former Employer Immunity — Provides immunity from civil liability to employers making, upon request, good faith disclosures re: job performances of former employees to prospective employers. Provides for a clear and convincing evidentiary standard. YEAR: 1990 Sunshine in Litigation — Limits the circumstances under which confidential settlement agreements can be used to conceal public hazards or information relating thereto that might protect the public.

2016 Issues Book


TORT HISTORY • Wrongful Death Recovery for Adult Children — Cre- • Insurer Reporting — Insurers must report savings resultates an exemption to the wrongful death statute prohibiting any recovery on behalf of parents who have lost adult children over the age of 25 to medical malpractice and prohibiting any recovery on behalf of adult children over the age of 25 who have lost parents to medical malpractice.

YEARS: 1988 & 1989

immunity to health care practitioners rendering emergency care. Applies Reckless Disregard Standard for imposition of liability in such cases. Juries must consider lack of time to obtain consultation, lack of patient/doctor relationship, inability to obtain patient history and time constraints due to other emergencies.13 • Presuit Investigation — Requires expert opinion when sending “notice of intent to litigate” to all defendants. Provides that a 90-day presuit investigation is required. Provides strict discovery requirements. Provides that attorneys and expert doctors are subject to discipline if good faithgrounds for negligence claim do not exist.

Binding Arbitration — If a defendant offers to arbitrate and the plaintiff refuses, a case can proceed to trial with a $350,000 cap on non-economic damages. If both parties agree to arbitrate, non-economic damages are capped at $250,000 (reduced by the percentage of the capacity to enjoy life) and plaintiff is entitled to costs, interest, and attorney fees, which are capped at 15 percent of the award. Additionally, lost wages are capped at 80 percent, and no punitive damages may be awarded. If plaintiff offers to arbitrate and the defendant refuses, the case goes to trial, where the defendant is subject to prejudgment interest and attorney fees, which are capped at 25 percent of the award. (Held constitutional by the Florida Supreme Court (5/14/93).)

• Medical Emergency Care Liability Reform — Grants

• The Florida Birth-Related Neurological Injury Com-

pensation Plan (NICA) — Provides compensation without fault for certain birth-related injuries, i.e. brain and spinal cord injuries that render a full-term infant permanently and substantially, mentally and physically impaired.Division of Workers’ Compensation judge hears all claims. All medical expenses are paid and parents receive $100,000, as well as possible attorney fees. Exclusive remedy absent bad faith or willful disregard on the part of the health care provider. Provides for a seven-year statue of limitations.


2016 Issues Book

• • • •

ing from reforms. Joint & Several Liability: Teaching Hospitals — Abolishes Joint & Several Liability for teaching hospitals and Board of Regents. YEAR: 1986 Academic Task Force — Creates an Academic Task Force to report on insurance and tort law Joint & Several Liability Restrictions — Severely restricts joint & several liability in Florida. Provides proportional liability for economic damages for defendants who are less at fault than the plaintiff. Provides that joint & several only applies to defendants who are more at fault than the plaintiff and to economic damages. Joint & several still applies to damages less than $25,000. For damages over $25,000, defendant liability for non-economic damages is limited to defendant’s proportional share. Cap on Non-economic Damages — Provides for a $450,000 cap on non-economic damages. (Subsequently ruled unconstitutional in Smith v. Department of Insurance, 1987.) Punitive Damages — Provides that punitive damages are presumed excessive if over three times compensatory dam ages. Plaintiff must prove by clear and convincing evidence that punitive awards over this amount are not excessive. The state is awarded 60 percent of all punitive damage awards. (Amended in 1992 to 35 percent and to prohibit the plaintiff from settling to avoid state’s share; state’s share repealed effective July 1, 1995 per Ch. 92-85.) Periodic Payment — Provides that a court can order structured payment of future economic losses in excess of $250,000. Verdict form must be itemized. Collateral Sources — Provides that payment by other sources of medical bills, disability insurance, etc. will reduce the court award. Remittitur (Reduce)/Additur (Add) — Establishes criteria the court must consider to reduce or increase awards. Itemized Verdicts — Requires verdicts to be itemized: economic/non-economic damages, past and future damages. YEAR: 1985

• Standard of Care — Tightens up standard of care to “prevailing professional” rather than “accepted” standard of care.

• Expert Witness Testimony — Requires that a similar

• • • • •

• • •

health care provider have his or her training, experience or knowledge as a result of active practice or teaching within five years before the incident. Good Faith Certification — Provides that attorneys must certify good faith belief grounds for medical malpractice. (May be shown by expert opinion, non-discoverable.) Punitive Damages — Provides that no punitive damages may be pled in a medical malpractice case until a reasonable showing of evidence is proffered. Peer Review — Provides for peer review immunity and confidentiality. Court Ordered Arbitration — Provides that courts may order arbitration if requested by either party. Attorney Fees — Sets forth an attorney fee schedule until rules are established by the Florida Supreme Court. Repealed in 1992. (Supreme Court promulgated a fee schedule and this is now in section 4-1.5(f )(4)(B)(i) of the Rules Regulating The Florida Bar. Mandatory Settlement Conferences — Provides that settlement conferences are mandatory in all medical malpractice cases. Contributory Fault — Diminishes proportionately the amount of compensatory damages by the contributory fault of the plaintiff and establishes right of contribution. Financial Responsibility (FR) — Establishes financial responsibility requirements for hospitals of $1.5 million per claim and $5 million annual aggregate. For doctors without staff privileges, FR is $100,000/$300,000. For physicians with staff privileges, FR is $250,000/$750,000. FR requirements are to be fulfilled by escrow or insurance. NOTE: In 1986, a loophole was enacted that currently

allows physicians to post a sign stating that they 15 do not meet the above FR requirements and “go bare” (practice without malpractice insurance, escrow account or letter of credit). • Study — Requires the Department of Insurance to study the impact of medical malpractice tort restrictions. Due 03/89 (Subsequently repealed, without the study being performed.) • Structured Settlements — Provides that future losses in excess of $500,000 may be paid out in a structured settlement. • Offer of Judgment and Demand for Settlement — Provides for attorney fees and costs if offer/demand is not within 25 percent in all civil cases. YEAR: 1980

• Prevailing Party Attorney Fees — Grants the prevailing

party medical malpractice litigation costs and attorney fees. (Repealed 1985) YEAR: 1975 • Statute of Limitations — Drastically reduces the statute of limitations in medical malpractice cases from four to two years. • Medical Liability Mediation Panels — Provides for a three-member panel to hear medical malpractice claims prior to institution of suit. (Held unconstitutional by the Florida Supreme Court.) • Florida Patients Compensation Fund — Created a state fund for medical malpractice coverage over a certain amount. This legislation was a complete failure and is no longer accepting claims. It remains on the books after decades for administrative matter related to old claims.

2016 Issues Book


Staff Contacts Debra Henley Executive Director Paul D. Jess Deputy Executive Director and General Counsel Jeff Porter Legislative Director G.C. Murray Deputy General Counsel Fred Piccolo Communications Director Jonathan Ducote Political Director, FJ PAC Kevin Sweeny Operations Director, FJ PAC

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2016 _Editorial Briefing Book  

FJA's 2016 Issues Book

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