CAPPING OF NON-ECONOMIC CAPPING OF NON-ECONOMIC DAMAGES IN MEDICAL DAMAGES IN MEDICAL MALPRACTICE CLAIMSMALPRACTICE CLAIMS

William BellWilliam BellGeneral CounselGeneral Counsel

Florida Hospital AssociationFlorida Hospital Association

ProblemProblem

Politics vs. PolicyPolitics vs. Policy

LegislationLegislation

The Problem

Broken System

• Expensive

- Skyrocketing premiums

• Slow

- Takes 4 to 5 years from incident to resolution

• Unfair

- Patients receive less than 50 cents on the dollar

The ProblemThe Problem

Declining access to healthcare services —

trauma/ER

obstetrics

mammography

other high-risk specialties

Affordability — Florida doctors’ premiums 55 percent above nation

Availability — Insurers writing policies droppedfrom 66 in 1999 to four

Frequency/severity of claims —

Florida’s claims’ frequency 36 percent higher than nation;

Coverage declining —

As costs rise, providers dropcoverage limits to $250,000minimum or carry noInsurance at all

Politics vs. Policy

Similarities to 1970’s and 1980’s

• Affordability and Availability

• Third Cycle

• Tried Insurance and Tort Reform

Politics vs. Policy

Differences from 1970’s and 1980’s

• Anesthesia - 70’s• OB - 80’s• Misdiagnosis - 2000’s• Data, Experience, Court Decisions• Fragile Health Care System

Politics vs. PolicyThe Goal

• Fair compensation to injured parties, while protecting coverage for all of us

Three-fold Agenda

• Clear guidelines for litigation and compensation• Stable insurance market• Improved patient safety

Politics vs. Policy• Research

• Coalition and Grassroots

• Public Education

• Legislation

What you can do

www.healflhealthcare.orgwww.healflhealthcare.org

Legislation

• Tort Reform

• Patient Safety

• Insurance Reform

Tort Reform

Non-economic Damages Caps

PractitionerDoctorsEmployeesPAs

Non-PractitionerHospitalsHMOsEmployees

Tort Reform

Practitioner Silo

$500,000 per claimant

$1,000,000 aggregate (2 or more claimants; e.g., spouse, children)

• All practitioners share aggregate cap• No individual practitioner pays more than $500,000

Tort Reform

Non-Practitioner Silo

$750,000 per claimant

$1,500,000 aggregate (2 or more claimants; e.g., spouse, children)

• Non-practitioner liability is limited to maximum in that silo, regardless of theory of liability

• All non-practitioner defendants share aggregate cap

Tort Reform

Piercing – Two Avenues

Death or permanent vegetative state-OR-

Catastrophic injury plus “manifest injustice” finding (patient only)

Up to max in each silo: $1,000,000 for practitioners; $1,500,000 for non-practitioners

Tort Reform

Emergency Room Cases

Practitioner $150,000/$300,000

Non-practitioner $750,000/$1,500,000

Definition of “reckless disregard” strengthened for purposes of Good Samaritan Immunity

Cap applies through stabilization and, if necessary, surgery within a reasonable time

No “piercing”

Tort Reform

Application

$2.5 max non-economic damages $1M + $1.5M

Set-offs for non-economic damages within silo Total non-economic damages cannot exceed cap applicable to that silo

Retain current law re: set-offs for economic damages

Only economic damages are set off between silos

EndingComplex Problem:

• Health Care System• Judicial System• Insurance

Regulated SeparatelyDifferent Public Policy Goals

Solution:

Coordinated Approach and Common Goals

• Patient Access• Quality of Care• Cost Containment