2017 FJA Issues Book

FLORIDA JUSTICE ASSOCIATION

IssuesBook 2017

“I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”

FLORIDA FLORIDA JUSTICE JUSTICE ASSOCIATION — Thomas

Jefferson to Thomas Paine, 1789

“In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved[.]”

— Amendment VII, United

States Constitution

P A C

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.

Contents FJA SUPPORTS: Automobile Insurance: Bodily Injury Liability..........................4 Prejudgment Interest.............................................................. 5 Rental Car Driver Responsibility............................................ 6 Family Compensation for Wrongful Death..............................7 FJA OPPOSES: Workers’ Compensation Cuts.................................................8 Limitations in Medical Payments............................................9 Insurance Bad Faith Restrictions.........................................10 No-Fault Patient Compensation System..............................12 Tobacco Punitive Damage Restrictions................................13 Assignment of Benefits Restrictions.....................................14 Medical Records Cost Increases .........................................15 ADDITIONAL INFORMATION: Medical Malpractice Tort Hurdles.........................................16 History of Limitations Imposed on Right of Recovery...........17

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AUTOMOBILE INSURANCE

AUTOMOBILE INSURANCE: BODILY INJURY LIABILITY FLORIDA NEEDS A MODERN AND EFFECTIVE SYSTEM THAT ENSURES REAL FINANCIAL RESPONSIBILITY

One of the reasons Florida has such a big problem with uninsured motorists has to do with how costly PIP coverage can be. The $10,000 personal injury coverage requirement, mandated in 1979 and never increased since, is too small an amount to cover the costs of most auto crashes with injuries.

In many cases this protection is redundant because it is one nearly all drivers already enjoy as part of their ordinary health insurance coverage. In 2012, major reforms were implemented that were supposed to make PIP coverage cheaper by limiting benefits and making claims filing more difficult and onerous, however the savings realized as a result were extremely short-lived. Since 2015, insurance carriers have been raising rates back to pre-2012 levels, making PIP coverage an even worse deal than it was before.

Following other states’ successful leads, the FJA supports a

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number of legislative initiatives to reform Florida’s broken auto liability environment, including requiring mandatory bodily injury coverage with policy limits of at least $30,000 per person/$60,000 per incident, and looking to options like requiring med-pay coverage to cover the cost of emergency medical care.

Mandatory bodily injury legislation would save financially responsible Florida drivers millions in insurance premiums by making costly coverages like PIP and uninsured motorist protection less necessary and less expensive. Acoording to some sources, this smart legislation would reduce the cost of under- and uninsured motorist coverage by one third, saving taxpayers millions of dollars by reducing the cost shifting that occurs when irresponsible drivers injure others and the public is left to pay the bill. For the protection of all Floridians on the road, every driver should be required to carry insurance adequate to cover injuries they may cause themselves and others.

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

SUPPORT

In Florida, current law only requires car owners to carry $10,000 in “Personal Injury Protection” coverage (PIP) and $10,000 in property damage liability insurance. Surprisingly, there is no requirement that drivers carry the kind of bodily injury liability insurance that can actually protect drivers against the high-dollar medical losses that occur in even moderate, let alone serious, car crashes. Florida, which consistently has one of the highest rates of uninsured drivers in the country (nearly one in four), is one of only two states that does not require coverage for bodily injury liability, putting it far behind the times when it comes to protecting its citizens from staggering economic losses. As a result, Florida taxpayers lose tens of millions of dollars every year to higher taxes and higher insurance premiums, picking up the tab for the treatment and care of victims of negligent drivers who are either uninsured or, more commonly, underinsured due to lax requirements.

PREJUDGMENT INTEREST

PREJUDGMENT INTEREST PREJUDGMENT INTEREST IN TORT CASES PROMOTES THE QUICK AND EFFICIENT DELIVERY OF JUSTICE

Under current Florida law, without prejudgment interest, negligent defendants and their insurance companies have an incentive to “cut their losses” by accumulating interest on the amount in contention at the injured party’s expense through delaying and dragging 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 reward for this type of unjustified delay.

This would benefit the courts as well as persons injured due to the negligence 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 thirty other states including Texas, Ohio, California, Colorado, and Georgia.

Thirty-three states have already responded to these tactics by allowing prejudgment interest in cases involving personal injury and wrongful death. In fact, Florida currently allows prejudgment interest in many other cases, such as business torts and contractual disputes, but does not currently do so in cases involving personal injury and wrongful death. The same standard should apply evenly across the board.

Florida needs prejudgment interest in tort cases because it discourages delay tactics, encourages fair settlements and, when combined with post-judgment interest, will curb abuse of the appellate process. Such legislation would bring Florida in line with states including Texas, Ohio, California, Colorado, and Georgia and will put wrongful death and personal injury victims on equal footing under the law with those who suffer economic damages through business torts and breaches of contract.

SUPPORT

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 an innocent party for the loss of the ability to use his or her money due to the wrongful acts of a defendant.

More than thirty 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.

Legislation filed on this issue in 2016 Session — HB 1005 and SB 1086 Result: Died in Committee

Prompt settlement of meritorious claims would help relieve the stress on Florida’s overburdened, over-taxed court system.

However, many defendants and (especially) insurance carriers deliberately choose not to settle these claims quickly.

Instead, they exploit and exacerbate Florida’s court funding “crisis” by engaging in stalling tactics, dragging relatively straight-forward lawsuits out for years through endless discovery “fishing expeditions,” hoping their needlessly complex litigation will “outlive” sick or injured plaintiffs with legitimate claims.

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RENTAL CAR RESPONSIBILITY

RENTAL CAR DRIVER RESPONSIBILITY

SUPPORT

PROTECT FLORIDIANS FROM UNINSURED RENTAL CAR DRIVERS

Imagine 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 you at full speed. You are both seriously injured and rushed to the emergency room by ambulance. At the time, you are just grateful everyone is alive and you are not at all concerned about how your family will pay the six-figure medical bills this misfortune is sure to produce, because you assume Florida law requires foreign tourists driving rental cars to purchase some sort of liability insurance, or that the rental car company has insurance to cover any losses the tourist’s coverage does not. Unfortunately, you would be totally wrong on both points. And if you didn’t have uninsured motorist coverage yourself, you might find yourself facing complete financial ruin in addition to a long medical rehabilitation and recovery.

Amazingly, under current Florida law, drivers — including rental car drivers — are not required to carry the kind of bodily injury liability insurance that could realistically pay the medical bills generated by even a mild, let alone serious, car crash with injuries. Florida is one of only two states that do not require drivers to meet meaningful financial responsibility requirements, leaving millions of Floridians at grave risk of financial ruin (Florida only requires “personal injury protection” of $10,000 plus $10,000 in property damage liability coverage – the lowest protection levels in the country.)

Although most of us are financially responsible for ourselves and the people we allow to drive the cars we own, rental car companies are not. This is so because, in 2005, under the influence of powerful rental car companies and their lobbyists, the United States Congress enacted the so-called “Graves Amendment” to 49 U.S.C. § 30106, which eliminated rental companies’ vicarious liability for the acts of the persons they allow to drive their profit-generating vehicles. While

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the “Graves Amendment” allowed states to subject drivers to their own financial responsibility laws, Florida – despite its enormous tourism economy – has the most lax financial responsibility laws of any state in the country, leaving anyone unfortunate enough to be injured by a reckless rental car driver in serious financial jeopardy.

The Florida Legislature should require all drivers of rental cars — especially foreign tourists — to either carry or purchase bodily injury liability insurance in at least the amount of $100,000 per person and $300,000 per incident, with at least $50,000 in property damage liability coverage. This is good policy for Florida drivers and good for the bottom lines of the rental car companies who can sell the insurance.

Florida should also require that rental car companies be fully financially responsible if they rent cars to uninsured drivers who then injure others on Florida’s roads.

Remember: taxpaying Floridians often have no recourse against those who rent cars, hurt people and have no liability insurance; this is especially true of foreign tourists who return to their home countries before justice can be done.

Legislation filed on this issue in 2016 — HB 1193 and SB 1380 (Not introduced in 2016) Result: Died in Committee

WRONGFUL DEATH

FAMILY COMPENSATION FOR WRONGFUL DEATH

SUPPORT

PROTECT FLORIDA’S FAMILIES BY CLOSING THE WRONGFUL DEATH LOOPHOLE In practically every sphere of life and commerce, someone whose negligence results in the wrongful death of another is held legally and financially responsible to that person’s survivors. However, this fair, just public policy exempts one special class of wrongdoers: negligent physicians. The immunity Florida law affords doctors who negligently kill their patients means their wrongful conduct does not carry the same consequences it would for anyone else in society.

This is especially disturbing considering that a recent Johns Hopkins study identified medical mistakes and medical malpractice as being the third leading cause of death in the nation.

To illustrate: if a physician on her way to the hospital negligently caused a car crash that killed a sixty-five yearold widower with two children in their late twenties, the widower’s adult children would have the right to recover damages for the loss of their father’s parental companionship, instruction and guidance and for their mental pain and suffering. By the same token, if a physician negligently caused a crash that instead killed one the widower’s adult children, the widower would have the right to recover damages from the physician for the loss of the companionship of his adult child. If, however, the physician caused the death of either the widower or his child by negligently botching a routine surgery in a hospital operating room, neither the widower nor his children would be able to recover anything for the loss of their loved one.

patient died, the surgeon would not be liable to the patient’s survivors, for no reason other than that the patient had the misfortune of being killed by a physician’s negligence rather than by some other cause, which actually makes the patient’s death a more desirable outcome for the physician’s insurer.

There is no rational reason why the law should treat either the patient’s survivors or the surgeon in this scenario differently than anyone else, when both the Florida and United States Constitutions guarantee all of us equal protection under the law whether we have the misfortune to be killed by a doctor’s negligence or someone else’s.

Over the years, bipartisan legislation has been proposed to close this egregious loophole and allow equal recovery by survivors in all wrongful death cases, but it has always been blocked by powerful special interests. It is past time for the legislature to act and remedy this shameful injustice.

The victims of medical malpractice or hospital errors should not be relegated to second class status. They, like all Americans, are entitled to the Constitution’s promise of equal protection under the law.

This inequity in the law has no rational explanation. This kind of rank injustice undermines the public’s confidence in the integrity of the legislative and judicial branches of government and leads to absurd or perverse results. For example, if a surgeon negligently botched a routine surgery under the scenario described above, his insurer would only be liable for substantial damages if the patient survived. If the

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WORKERS’ COMPENSATION

WORKERS’ COMPENSATION CUTS OPPOSE LEGISLATIVE ATTEMPTS TO CUT WORKERS’ BENEFITS AND DENY THEM EFFECTIVE REPRESENTATION

OPPOSE

The Florida Supreme Court’s recent decisions in Castellanos v.

Next Door Company and Westphal v. City of St. Petersburg did not create a ”crisis” and do not justify increased workers’ compensation rates.

In 2003, the Florida Legislature amended the Florida Workers’ Compensation Act, stripping working Floridians of medical and lost wage benefits. The insurance industryowned rating agency, NCCI, predicted at the time that these statutory changes would reduce rates by 12.5%, only 2% of which they attributed to the capping of plaintiffs’ attorney’s fee awards. The changes implemented in 2003 went much farther than expected. Since then, rates have plummeted in excess of 60%, savings that came at the expense of benefits to injured workers, whose physical health was sacrificed to the benefit of insurance companies.

The recent decisions from the Florida Supreme Court declaring some of the 2003 changes unconstitutional only slightly level the playing field for injured workers who are wrongfully denied needed benefits. Yet, NCCI and the insurers that control it immediately moved to exploit these decisions by using them as a pretext to claim the existence of an “insurance crisis” justifying massive rate increases.

However a sober, objective examination of both decisions suggests there is no legitimate basis for carriers to seek any rate increase, much less the 20% increase NCCI claims is needed.

When insurance companies delay or deny benefits recommended by the very physicians they select, they act contrary to the intent of the Florida Workers’ Comp.

Act, which is to get injured workers the care they need to return to work. Attorneys are seldom involved in workers’ compensation claims when the insurer or employer is furnishing necessary benefits.

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The Workers’ Comp. Act affords insurance companies and employers the opportunity to avoid the payment of attorney fees by simply furnishing benefits when they are due and owing. Insurers or employers that provide benefits in accordance with the statute do not have to worry about paying attorney fees because doing right by Florida’s injured workers keeps them from getting sued. The Florida Supreme Court’s decision in Castellanos does not increase the medical or wage benefits available to injured workers.

It merely obligates insurance companies or employers to pay reasonable attorney’s fees when they wrongfully deny benefits to injured workers and are sued. Westphal does nothing more than return the eligibility for payments to one class of injured worker to what it was before 2003. Neither of these results constitute anything like a “crisis.”

Requiring insurers and employers who delay or deny benefits to injured workers to pay attorney’s fees is a safeguard to assure the intent of the Workers’ Comp. Act is fulfilled.

Recall that in 2003, the insurance industry’s own rating organization (NCCI) said the attorney’s fee cap enacted then constituted just 2% of the rate reductions achieved. For that same rating agency to now request a 17% rate increase in response to that change being undone is unconscionable.

Castellanos and Westphal are not the cause of a “crisis,” they are just fair. And the Florida Justice Association will proudly oppose any attempt to legislatively roll back these workerfriendly decisions.

Additionally, Florida legislators should enact fair and competitive rate making in place of the unfair and unreliable market system currently in place.

MEDICAL PAYMENTS

LIMITATIONS IN MEDICAL PAYMENTS

YEARS OF LEGAL RESTRICTIONS HAVE ALREADY CLOSED COURTHOUSE DOORS FOR TOO MANY PATIENTS For the last several years, legislation has been introduced that would prevent victims in personal injury cases from receiving just compensation for future medical expenses, putting them at risk of financial ruin, potentially impeding their recovery from injuries, and jeopardizing their future health and well-being.

OPPOSE

Limitations in Medical Payment (“LIMP”) bills have been introduced in each of the last four legislative sessions. The most injurious parts of these bills would limit awards of future damages for medical expenses to amounts “customarily accepted from Medicare,” for such services, and would make undiscoverable and inadmissible individual contracts between victims’ health insurers and providers -- contracts that could shed light on what the victims’ real-world future medical expenses will actually be.

As a secondary payer that buys hundreds of billions of dollars of medical services every year, the Centers for Medicare & Medicaid Services has the kind of singular market power that enables it to set “take it or leave it” reimbursement rates that medical providers have for decades maligned as being inadequate to cover the costs of decent medical care. Smaller insurers lacking that kind of market power,to say nothing of private individuals, obviously must pay more for these services than does the federal government. Recent LIMP bills are deliberately designed to create a gap between what Medicare pays for services and what victims in personal injury suits and their insurers must actually pay for the very same thing, relegating those injured by others’ negligence to “second class status,” and forcing them to make the difficult choice between filling the payment gap from their own savings (in the unlikely event they can) or seeking out second rate medical services on the cheap.

LIMP legislation also undermines the integrity of the judicial system by prohibiting victims of negligence from fairly presenting their cases to juries of their peers. By preventing juries from hearing evidence of doctors’ or hospitals’ actual charges for the treatment they have provided, or will need to provide, a person who was harmed by the negligent conduct of others, this legislation requires courts to be complicit in presenting jurors fictitious, understated numbers that do not accurately reflect the actual or market value of their medical providers’ expertise.

LIMP legislation presents a huge access to care issue for injured victims, unfairly eliminating their ability to receive the best care available after being injured. When a person is injured through 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. When physicians take on the care of persons injured in accidents caused by other parties’ negligence, they do so with the understanding they will see delays in payment and have to make investments in time and money answering discovery requests and attending trials and depositions that they would not have to if they were treating other types of patients. If this misguided legislation passes, it will remove any reason these physicians have to see such patients because they will know they will end up grossly underpaid.

Additionally, LIMP legislation would force doctors to sue their patients –- not the wrongdoers or their insurance companies — for the unpaid medical bills created by the gap between Medicare rates and real market rates, further harming the innocent victim, considerably adding to the backlog in the court system, and forcing physicians to spend more time in the courtroom than in treating patients.

LIMP legislation is grossly unfair and must be opposed.

Legislation filed on this issue in 2016 Session — HB 1271 and SB 1474.

Result: Died in Committee

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INSURANCE BAD FAITH

INSURANCE BAD FAITH RESTRICTIONS

OPPOSE

ENSURE THAT INSURANCE COMPANIES REMAIN ACCOUNTABLE TO POLICYHOLDERS FOR ACTING IN BAD FAITH Consider this scenario: You are a responsible small business owner. You are properly licensed, regularly pay your bills, pay all your taxes, carry the recommended amounts of insurance and pay your premiums on time. You have done everything right. You are living the American dream and are contributing to the economic well being of your community.

reasonable settlement offers, fail to inform their policyholders of such offers in a timely manner, or fail to properly investigate legitimate claims. When this happens, the insured is exposed to an “excess judgment” that can far exceed his or her policy limits. Under a normal insurance contract, an insured subject to an excess judgment must pay the full amount over the policy limits, out-of-pocket.

But then one day misfortune strikes: one of your employees was out on a delivery in a company van, it was raining hard, limiting visibility and making the roadways hazardous. By the time your employee realized the minivan in front of him had slammed on its brakes, it was too late. He had slammed into the back of it at 45 m.p.h., severely injuring the driver. As much as you hate that those involved had to experience something so terrible, you know you are protected because every month for the last few years you scraped together your premium payments and, like they constantly insist in their expensive, flashy commercials, your insurance company has your back, just like a good friend or neighbor.

Fortunately people in these circumstances are not without hope.

If an insurance customer can prove in a subsequent lawsuit that her own insurance company acted in bad faith by failing to settle a claim within policy limits, the insurance company – not the insured – must pay the judgment in excess of the policy limits.

Not surprisingly, this is a critical consumer protection that insurance companies are working tirelessly to destroy. Every year they cause legislation to be introduced seeking to eliminate or curtail the Bad Faith cause of action, and every year the Florida Justice Association opposes them.

Now imagine that despite all the optimistic assurances of the lawyer your insurance company provided you, you are sitting in a courtroom watching a jury return a verdict against your company for the medical bills and pain and suffering of the victim of the car crash your employee caused; that the verdict is five times the limits of your insurance policy, destroying the business you worked so hard to build; and that you are just now finding out that your insurance company could have avoided the trial and settled the whole case a year ago by tendering the policy limits to the victim, but didn’t. Under recently proposed legislation, you and your business would be responsible.

This scenario is not far-fetched. Insurance companies – particularly ones with financial problems – frequently break the law and act in bad faith, which they do when they refuse to accept

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Laws that require insurers to act in good faith are good public policy, benefiting both policyholders and those injured through negligence. When insurance companies act in bad faith in an effort to pad their bottom lines, they betray the trust placed in them by their policyholders and expose innocent, job-creating, tax-paying citizens to potential financial ruin. Florida’s Bad Faith law is the private, free market alternative to additional and more onerous insurance regulation and is a consumer protection that must be protected and preserved.

Legislation filed on this issue in 2016 session — HB 5 and SB 632 Result: Died in Committee

Legislation filed on this issue in 2015 Session — SB 1088 and HB 1197 Result: Died in Committee

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PATIENT COMPENSATION

NO-FAULT PATIENT COMPENSATION SYSTEM

OPPOSE

CLOSING COURTHOUSE DOORS FOR INJURED PATIENTS After heart disease and cancer, medical malpractice and hospital errors are the third leading cause of death in the United States. The proposed “Patient Compensation System” is an effort to sweep this major public health problem under the rug at the expense of patients. If enacted, it would strip the victims of dangerous, sub-standard healthcare of the right to trial by jury enshrined in the Seventh Amendment to the U.S. Constitution, making them subject to the whims of political appointees and government bureaucrats and making bad doctors and negligent hospitals less, rather than more, accountable for their errors. This is a formula for inevitable bad governance and flies in the face of bedrock conservative principles like individual responsibility, personal accountability, and respect for the Florida and United States constitutions.

The proposed Patient Compensation System is a Big Government nightmare that would replace Floridians’ sacred right to a trial by a jury of their peers with a governmentrun panel of politically appointed healthcare industry hacks interested only in protecting their own bureaucracy’s bottom line. Harmed patients would be required to file their claims with a bureaucratic “medical review panel,” and then, if their claim survives, would have to successfully petition a second panel for compensation for their injuries according to a government-established schedule of benefits.

Florida tried this experiment forty years ago and the result was a failure. The Florida Patient’s Compensation Fund, enacted in 1975, was established to pay out medical malpractice claims exceeding $100,000, but lack of interest or participation from doctors and hospitals starved it of funds and it died from neglect. Studies have shown that to achieve its goals, a modern day repeat of this failed experiment in Big Government would cost Floridians tens of billions dollars a year and still would not fairly compensate victims of malpractice. As history has shown, voluntary participation and funding on this

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level has no realistic chance of ever materializing.

The Florida Department of Health already has numerous panels of politically appointed doctors and healthcare officials tasked with “self-policing” their professions. Yet, year after year studies and news reports show that Florida has one of the most ineffective disciplinary systems in the country. Government has shown itself incapable of imposing accountabilitiy on bad doctors. Doubling down on that failure at the cost of cherished Constitutional rights is an obvious recipe for disaster.

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 to just 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)

Legislation filed on this issue in 2016 session — HB 1065 and SB 1308 Result: Died in Committee

PUNITIVE DAMAGES

TOBACCO PUNITIVE DAMAGE RESTRICTIONS

PREVENT A TOBACCO COMPANY BAILOUT FOR DAMAGES INFLICTED ON OUR GREATEST GENERATION

Punitive damages are reserved for egregious conduct perpetated by the worst kind of civil offenders. The theory behind such damages is that they are used to punish the harmful actions of bad actors to deter even worse behavior in the future. Punitive damages are extraordinarily difficult to win: claimants must show “clear and convincing” evidence that a defendant was personally guilty of intentional misconduct or gross negligence, which is what the tobacco companies’ own internal documents prove they have been guilty of for decades. Many people are under the mistaken impression that tobacco companies have already been forced to pay all the punitive damages due and owing under the “Master Settlement Agreement,” signed by Florida and other states.

However, this agreement only covered damages due federal and state governments for the billions of dollars in healthcare expenditures paid through Medicare and Medicaid. It had nothing to do with the resolution of private individuals’ wrongful death claims, which are still being litigated.

For years tobacco companies have been trying to protect their bottom lines by paying high-priced law firms

to tie up meritorious cases in protracted litigation, in a sick game of “outlive the smoker,” or even “outlive the dead smokers’ children.” Cigarette makers use litigation strategies that drag out every case brought against them to the last extremity, and have done so for decades. Through these tactics they have successfully avoided liability on countless occasions, and now they are trying to get the Florida Legislature to bail them out of their responsibility to pay punitive damages to smokers from lawsuits originally filed in the early 1990s.

In the 1999 Tort Reform Act, the Florida Legislature changed the punitive damages statute to make it extraordinarily difficult for Floridians to win punitive damages. Legislation introduced in 2015 – and sure to be resurrected in the future – would extend these unfair caps and bureaucratic hurdles to those unfortunate persons whose meritorious claims were filed before 1999 and are still pending in court due to the extreme lengths to which large corporations go to drag out litigation and avoid liability. This grossly unfair legislation would especially hit the survivors of those who started smoking before cigarette makers were forced to admit their products were deadly.

OPPOSE

Countless years of litigation have exposed decades of deliberate malfeasance on the part of big tobacco companies. For longer than most of us have been alive, these immoral corporate giants have been knowingly and deliberately lying to the public, conspiring to hide the health risks of their dangerous and addictive products at the cost of millions of lives. The result has been the addiction and premature death of a huge swath of America’s Greatest Generation, whose relatively few survivors have finally gotten their day in court only to see Big Tobacco still trying to peddle death to their children and grandchildren and causing legislation to be introduced that would unfairly strip them of just compensation by passing caps on punitive damages that retroactively cut-off recovery for victims whose suits were filed in the early 1990s and are still pending.

All corporations should be held accountable for deceptive and immoral actions and violations of any of the laws 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 — HB1067 and SB 978 (not introduced in 2016) Result: Died in Committee

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ASSIGNMENT OF BENEFITS

ASSIGNMENT OF BENEFITS RESTRICTIONS PROTECT HOMEOWNERS WHEN AN EMERGENCY HAPPENS What if a hurricane struck, and after two days of torrential downpours your house was flooded. The water is up to your knees, your furniture is ruined, decades-worth of precious keepsakes, photographs and memories are destroyed. But you think to yourself, “Thank God… it could have been so much worse … and I have insurance. I can rebuild.”

This scenario is not unlike what happens in a serious car crash, where a grievously injured person gratefully assigns her health insurance benefits to the ambulance service dispatched to the scene and the emergency room doctors working to save her life at the nearest trauma center, knowing, as her first responders do, that what matters is her safety and her life, not whether her insurance company can shave a few dollars off its bill by using cut-rate competitors.

An “assignment of benefits” occurs when an individual entitled to a benefit under an insurance policy (such as repair of property damage caused by flooding) essentially

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Bills pushed by Big Insurance in the previous two legislative sessions – and sure to be pushed again in 2017 – are designed to strip property owners of this kind of security and peace of mind, by imposing onerus and burdensome limitations on a common practice, turning a system that has protected consumers and homeowners for decades into one where hardworking families will be at the mercy of poorly trained insurance adjusters and insurance companies who care more about padding the bottom lines for their highpaid executives and shareholders than protecting Florida’s hardworking families.

So-called “AOB reform” will have the effect of forcing homeowners to pay upfront, out of pocket (in the unlikely event they can), for time-sensitive repairs because contractors will be unwilling to provide the desperately needed work without some hope of being paid after the job is done. It is a misguided attempt to destroy an effective, consumerfriendly system that has worked for Floridians for over a hundred years and must be opposed.

Legislation filed on this issue in 2016— HB 671 and SB 596 Result: Died in Committee

OPPOSE

Knowing that time is of the essence, you call several different water remediation companies, all of whom tell you they are too busy dealing with other flooded customers in your neighborhood to look at your house. But, finally, you find someone able to take a look. These experts come out the same day, survey the damage, and tell you they need to begin pumping and drying immediately if there is to be any hope of preventing the kind of toxic mold growth that can jeopardize your family’s health and make your home nearly worthless and completely unlivable.

You gratefully authorize them to get to work right away, confident that your insurance company, which spends tens of millions of dollars a year advertising to the public what a great “friend” and “neighbor” it is, will do what’s right in honoring its contractual commitment to make you whole again. The contractors get right to work, assuring you that, by assigning the protection you bought from your insurer to them, you will not have to pay thousands of dollars up front because they will take care of everything through your insurance company.

“signs over” the right to recover from his insurer the cost of that benefit to the third party providing it (such as a contractor). Assignment of benefits means peace of mind, a reprieve from the trauma of a disastrous situation and a safe and healthy home. It is a respected and time-honored system that has worked for over a hundred years that, under this scenario, allows work to commence without out-of-pocket payment.

MEDICAL RECORDS COSTS

MEDICAL RECORDS COST INCREASES OPPOSE INCREASED “ACCESS TAXES” ON RECORDS PATIENTS SHOULD OWN

This is not unreasonable given that the physician has to pay for the computers, scanners, staff and office overhead that make such a simple exchange possible. However, for Florida’s doctors, this already generous pricing structure is not enough. Instead, some Florida physicians are trying to turn the production of medical records into a “profit center” by attempting to raise the rate they are allowed to charge for such records to $1.00 per page, a move the Florida Justice Association has fought at both the Board of Medicine and in the legislature.

As a result of technological advances in the past several years, there have been significant cost efficiencies/reductions 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 of passing these savings along to patients – or even just quietly pocketing the profits they produce – health care providers and their third-party records companies are trying to jack

up the price of healthcare transportability and affordability through “access taxes” of up to $1.00 per page, creating hardship for cash-strapped patients (especially seniors) who need these records for myriad reasons having to do with continuity of care or legal or insurance- related compliance.

Current law allows the Florida Board of Medicine, a regulatory body made up of self-interested physicians, to decide what these records should cost. Unfortunately, the integrity of this oversight responsibility is compromised because it is in the best interest of most of the members of the politically appointed Board to continue to try to arbitrarily inflate these costs to their own benefit, despite widespread efficiencies that are actually driving down the costs of maintaining and producing such records.

OPPOSE

In 2014 the federal government began requiring most medical providers to keep and maintain easily transferable, electronic medical records for their patients, even going so far as to provide financial incentives, in some cases, to subsidize the switch. In this age of tablet computers, digital, electronic medical record systems and high speed scanners and printers, a physician fulfilling a patient’s request for copies of his or her own medical records is entitled, under current administrative law, to charge up to $25 for the first twenty-five pages of records and $0.25 for every page after, even if producing the records requires nothing more than the click of a button on a mouse.

Legislative leaders should instead take control of this issue and put patients’ interests first by establishing a fair fee structure for patient medical records, including flat rates for records copied to disks or sent electronically and a rate for hard copies capped at the current level of $1.00 per page for the first twenty-five pages and $0.25 for each page after.

Legislation filed on this issue in 2016 — RORS 16-02 Result: Died in Committee

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MEDICAL MALPRACTICE

HISTORY OF MEDICAL MALPRACTICE LAWSUIT LIMITS - 1975-2016 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

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$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)

History of the Limitations Imposed on the Right of Recovery of Those Injured Through Negligence in Florida.

(1975 - 2016)

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TORT HISTORY

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.

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.

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-board

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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.

Tort Provisions Enacted by the Florida Legislature 1975 – Present: 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.

Fortunatlely, FJA and its allies have been able to prevent passage of any major tort restrictions between 2013 and the present.

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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 to require administrative determination of disputes over 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 effected land.

Denies use of the limited liability defense if the owner, agritourism operator, or employee fails to post the sign as required by the 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 arbi-

tration.

• 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.

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.

• Premises Liability/Sovereign Immunity – Allows certain 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 hunting, fishing or wildlife viewing.

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). 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, osteopath,or dentist who provides expert testimony concerning the standard of care to be licensed in this state or possess an expert witness certificate issued by the Department of Health. Makes offering false or misleading information as an expert witness a disciplinary offense for licensing.

• Cataract Surgery Consent Form – 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 proceed-

ing. 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. Repeals the requirement that a self-insurance policy or insurance policy for medical malpractice must authorize the insurer 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 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 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.

• 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 — 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

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

Sport Coaches / Background Checks — 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, there is a rebuttable presumption that an independent sanctioning authority was not negligent in authorizing the athletic coach if the authority complied with the background screening and disqualification requirements.

Negligence/Slip and Fall — Creates 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 common-law duties owed to invitees.

T H. Lee Moffitt Cancer Center & Research Institute — Extends sovereign immunity 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.

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

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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 certain statutory penalties pertaining 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.

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.

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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.

YEAR: 2003

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

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• Streetlight Provider Immunity — Provides streetlight

providers with immunity from lawsuits alleging negligent streetlight maintenance if they repair inoperative streetlights within certain time periods. 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 company” to allow a broader range of company-types to qualify for the vicarious liability caps. 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.

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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.

College Athletics Contract Practitioners — Provides sovereign immunity to health care practitioners who contract with state university boards of trustees for medical 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.

Expert Witnesses Qualifications — 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 that 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.

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

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TORT HISTORY 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. For nonpractitioners (e.g. health care facilities), 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 • 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.

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.

• Offer of Judgment Fee Caps in Workers’ Compensation

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 that 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.

• Mandatory Mediation in Nursing Home and Assisted Living Facility Cases — Requires mandatory mediation

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— 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.

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

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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, must now 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. 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: Burden of Proof — Requires plaintiff to prove entitlement to an award of punitive damages by clear and convincing evidence.

• 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.

• 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.

• Statue of Repose: Barred Actions — Actions that would

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TORT HISTORY 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.

YEAR: 1998

• Hearsay Exception — Creates an exception to the prohibition 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.

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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.

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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.

• Wrongful Death Recovery for Adult Children — Creates 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

• Medical Emergency Care Liability Reform — Grants 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.

• 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.

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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).)

• 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.

• Insurer Reporting — Insurers must report savings resulting from reforms.

• Joint & Several Liability: Teaching Hospitals — Abolishes Joint & Several Liability for teaching hospitals and Board of Regents.

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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 damages. 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 re-

duce 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 “pre-

vailing professional” rather than “accepted” standard of care.

• Expert Witness Testimony — Requires that a similar

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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).

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TORT HISTORY • 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.

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2017 Issues Book

2016 Issues Book

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Staff Contacts Debra Henley Executive Director dhenley@floridajusticeassociation.org Paul D. Jess Deputy Executive Director and General Counsel pjess@floridajusticeassociation.org Jeff Porter Legislative and Political Director jporter@floridajusticeassociation.org Lynn McCartney Assistant Legislative Director lmccartney@floridajusticeassociation.org G.C. Murray Deputy General Counsel gcmurray@floridajusticeassociation.org Don Freeman Legislative Analyst dfreeman@floridajusticeassociation.org Kevin Sweeny Operations Director, FJ PAC ksweeny@floridajusticeassociation.org

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FLORIDA JUSTICE ASSOCIATION

218 South Monroe Street • Tallahassee, Florida 32301 • 850.224.9403