Pennington P.A.

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Malpractice insurance reform divides House, Senate

(04/14/2003, Pensacola News Journal )

The state Senate and House have both crafted wide-ranging plans to lower the rates doctors pay for malpractice insurance, hoping to keep doctors from quitting their practices and leaving parts of Florida without health care.

But with less than three weeks left in the Legislature's annual session, a solution to what many observers call a crisis is far from certain because the competing plans take entirely different approaches to solving the problem.

"The Senate and House are worlds apart," said Debra Henley, a lobbyist for trial lawyers, one of the main interest groups closely watching the legislation. "There are few, if any, similarities."

The chambers are so far apart that many of the interest groups involved -- doctors, lawyers, hospitals, malpractice victims and insurance companies -- are worried they may not get together.

John Thrasher is among the concerned. A lobbyist for the Florida Hospital Association, Thrasher knows the process well as a former House speaker.

From his vantage point, Thrasher says he's not sure the Senate and House will be able to reach agreement on one particular issue -- a limit on how much victims can win in certain kinds of damages in malpractice lawsuits.

The House passed its malpractice bill last month, with a $250,000 limit on non-economic damages, such as compensation for losing a limb. The bill would not limit compensation for medical bills, funeral expenses and other economic damages.

"There seems to be a tremendous disconnect between the House and Senate on caps," Thrasher said.

The clash over capping damages in Florida reflects a national debate. In Congress, the U.S. House has passed a measure limiting non-economic damages in malpractice cases to $250,000, but the measure is still on hold in the U.S. Senate over concerns with the caps.

In Florida, doctors have been unable to muster support for broad lawsuit limits in the state Senate.

The Senate has three bills that will be heard this week in the budget committee and then go to the floor for a vote by the full Senate. The package includes some immunity from lawsuit damages for emergency room doctors and nurses. But doctors and insurance companies say that will only protect about 10 percent of the doctors sued for malpractice, and thus not stem the rising cost of insurance.

While the House believes cutting lawsuit losses will lower insurance rates, the Senate tackles the problem more directly. One of its bills simply requires insurance companies to roll back rates to what they were in 2001. The companies would then have to go before regulators and justify future increases.

Insurance companies and doctors say that won't solve the problem -- just force insurers to quit the malpractice business in Florida.

Ultimately, whether or not the House and Senate close the gulf between them, Gov. Jeb Bush may have the biggest say in the solution. Bush is adamant that a cap on lawsuit damages is necessary.

"Meaningful reform includes caps, you can take that to the bank," Bush said last week. He has implied he might bring lawmakers back for a special session if they fail to approve caps, but he has declined to commit to overtime.

Senate President Jim King has said he can't deliver a cap -- too many of his senators oppose it. But he disagrees that the effort to solve the problem is doomed.

"We are not disallowing or disavowing anything," said King, R-Jacksonville, discussing the Senate's bill. "This is not a finished product, and we know that."

Lawmakers are under pressure not only from the governor, but from a parade of doctors threatening to stop performing certain procedures. Most recently, a Jacksonville practice of 45 obstetricians and gynecologists cited malpractice rates when it announced it will limit services starting May 2 because of a lack of general surgeons.

Aside from Bush, the Florida Medical Association has been the biggest proponent of the damages cap -- and won't support a bill that tries to solve the problem without it.

"The cap is the heart of the plan," said Sandra Mortham, CEO of the association. "Without the heart pumping there probably is nothing else that's going to save the patient."

House Speaker Johnnie Byrd, R-Plant City, has not indicated what the House is willing to accept in the bill. He was noncommittal on caps before the session. Since then, he has said he believes a cap won't completely address the problem but has acknowledged that it's an important element.

But the bill with the caps passed the House 95-19, and several members there insist it is important.

Mark Delegal, a lobbyist for malpractice insurance companies, said that even though both the Senate and House plans have several elements, the issue of capping damages is likely the one that will ultimately decide whether a bill passes or fails.

"Maybe something can be done," Delegal said. "But that's probably got to be the ... last night of the session and it's got to involve Johnnie Byrd, Jim King and Jeb Bush in a room."

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