October 2003 Bulletin

AAOS grant to Florida Orthopaedic Society brings results

By Susan Koshy, JD, MPH, Jay Fisher, JD

Grants awarded through the AAOS Medical Liability Reform Campaign, which is designed to support passage of tort reform legislation at the state and federal level, have led to several grassroots victories. An orthopaedist-led medical liability reform campaign was successful in Florida, and campaigns in Mississippi and New Jersey are underway. A summary of he experience in Florida follows.

On August 13, 2003, the Florida legislature officially passed a bill placing caps on non-economic damages among other medical liability reform measures. The AAOS awarded a $32,000 grant this summer to the Florida Orthopaedic Society in support of its tort reform efforts. The legislation was then signed into law on August 14, 2003, by Gov. Jeb Bush, adding Florida to the growing number of states passing legislation to reform the medical liability system.

The regular session of the Florida legislature ended in 2003 without the House and the Senate coming to terms on a medical liability reform bill. Gov. Bush subsequently called two special sessions in which the House and Senate still could not agree on a cap on non-economic damages (the House and governor wanted $250,000 while the Senate originally wanted no cap). Gov. Bush publicly criticized Republican members of the Senate for not supporting a cap. Not wanting to waste more money or generate more bad publicity, the House, Senate and governor worked behind closed doors and came up with a compromise bill that was signed into law on August 14, 2003.

The law caps non-economic damages at $500,000 per claimant divided amongst all defendant physicians, but it also limits each physician to $500,000 in non-economic damages to all the claimants in the case. The law also creates a separate cap of $750,000 that applies to hospitals and other facilities.

If the judge finds that a catastrophic injury occurred and justice requires a higher cap, the cap can be raised to $1 million for physicians and $1.5 million for facilities.

A lower cap of $150,000 for physicians providing emergency care was also established. This cap cannot be raised for any reason.

Other reforms in the new law include:

The law freezes all medical liability insurance rates and requires the Florida Department of Insurance to determine a rate reduction factor based on the expected effects of the law. On January 1, 2004, each insurer must reduce their rates by that factor. Insurance companies have the burden of proving that the reduced rates are inadequate if they desire a higher rate.

The law also created new patient safety initiatives. Hospitals must create patient safety committees and plans and there is broader immunity for disciplinary actions taken against staff. Hospitals and physicians must tell patients about adverse events.

Susan Koshy, JD, MPH, is manager and Jay Fisher, JD, is legislative analyst in the AAOS department of socioeconomic and state society affairs. Ms. Koshy can be reached via e-mail at koshy@aaos.org

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