New Florida Legislative attack on Medical Malpractice Claims

February 15, 2012

The Florida Legislature has embraced many attempts in the past to unduly restrict the rights of potential claimants in medical malpractice cases. Caps on damages, a worthless pre-suit screening process and an abbreviated Statute of Limitations are but a few that have been successfully enacted into Florida state law. During its current session, the Senate Health Regulation Committee has proposed additional measures to both limit damages and deny claimants the right to have a jury determine the outcome of their cases.

Specifically, Senate Bill 1506 permits doctors to require patients to agree to submit any potential negligence claims to arbitration as a prerequisite to obtaining medical care. Through the use of these agreements, doctors will be able to both choose the forum and cap potential economic and non-economic ( ie.” pain and suffering” ) for any future malpractice claims. This provision could also potentially be used to coerce an existing patient to unknowingly accept such limitations by a doctor, hospital or other medical provider who is already aware they have rendered negligent treatment to that patient. While the vast majority of medical care providers would never contemplate such sinister actions, we can assume that some would.Expect this provision to be hidden in the fine print in most, if not all pre-treatment paperwork which new and existing patients will be given to sign before they receive treatment from doctors and hospitals.

In addition SB 1506 would require that to establish negligence for failure to order additional diagnostic testing ( MRI’s, CT Scans, ultrasound, blood testing, etc) the patient would be required to establish negligence by “clear and convincing” evidence, rather than the usual civil proof standard which is by a “preponderance” of the evidence. Statistics show that there has been no “explosion” of malpractice claims which merits the significant changes now being discussed in Tallahassee. In fact,a majority of cases that do proceed to trial result in defense verdicts. Unfortunately, that has not stopped the vigorous lobbying by medical groups to further erode the rights of patients with legitimate injury claims.