Medical Malpractice Legislation: Adding Insult to Injury

By Debra Henley
Published by Florida Voices

The Florida Legislature is at it again, and this time it is a full-blown assault on the rights of patients, most disproportionately women.

First, if you are a victim of medical malpractice, this bill would allow healthcare providers, insurance companies and their lawyers to speak to your treating physicians without your consent and outside your presence. In other words, opposing attorneys could interview your OB/GYN, your psychiatrist, or anyone – just to gather more information against you in a lawsuit.

A second provision would require cases involving the failure to administer a supplemental diagnostic test to be proved at a clear and convincing burden of proof. A common form of diagnostic testing is the mammogram used to detect early stages of breast cancer. This harmful legislation would remove the incentive of doctors to administer this life-saving test and would endanger the lives of countless women.

But the most egregious provision allows doctors to REQUIRE patients to sign arbitration agreements prior to receiving care. Patients already face an abundance of paperwork when seeing a physician, and these arbitration agreements would be included in hopes most patients sign without reading.

A hypothetical debated by a Senate committee involved a doctor requiring a patient to waive their right to trial, accept an arbitrator of the doctor’s choosing and agree to limits on damages at $10,000 for actual damages, i.e., costs of healthcare, lost wages, etc., and $10,000 on noneconomic damages, i.e., pain and suffering. In such a case where the injured patient is the family’s breadwinner and becomes permanently disabled, she would only be entitled to $20,000 to manage the rest of her life.

Limiting lawsuits doesn’t magically make the doctor’s harm go away; it simply denies patients from receiving what they are legally entitled. When arbitration or other limits make it impossible to recover, rather than the highly profitable medical malpractice insurance industry paying their bill, we the taxpayers pay them through higher Medicaid and Medicare budgets and other forms of state assistance.

Fortunately, language making emergency room medical providers agents of the state for purposes of malpractice was deleted. This provision would have capped damages that injured patients could recover at $200,000 per provider and $300,000 per incident with the excess amount to be paid by taxpayers. But this change doesn’t cure a fatally flawed bill.

This legislation in its current form is dangerous for Florida’s patients. The Florida Legislature must not allow reckless and negligent medical providers to get away with adding insult to the injuries they cause.