Who is Florida’s Attorney General trying to protect?

In Florida, do we citizens who live here comprise “the State”?

The attorney general in Florida has launched another one of her battles; which I would guess she characterizes as “defending the best interests of Florida, the state constitution and all the little people in Florida.”

The attorney general’s fight? It is all about limiting the amount of money a person can collect if a jury rules they were injured by the negligence of health care providers. Yes, in Florida, health care providers are one of those special class of people who can negligently hurt and kill people and not pay the full costs of their actions.

You and I do not enjoy such privileges.

Why? Because there was an insurance crisis and laws had to be passed or all the insurance companies would flee the state… cried so many chicken littles when these laws were being drafted. And, give it to the insurance industry, the doctors and the hospital groups; they put on a well-funded and relentless advertising campaign to support passage of the laws.

I mean, try to imagine the state of Florida permanently without doctors or hospitals. Yeah, try to imagine that happening in any world you could conceive. In Florida, with an aging population where hospitals and doctors have flourished for years (well except when they tried to make a killing with managed care HMO’s, but that’s another story). But that is the very image conjured by the legislature and the insurance companies.

The Florida legislature has held hearings about medical malpractice before. They have paraded in experts and insurance company CEO’s. With few exceptions the experts and CEO’s have testified that no insurance crisis existed. But, undaunted, your Florida legislature crafted laws and let the insurance companies scare the hell out of the public to give them justification for passing those laws.

It worked. But wait, was it constitutional? Let’s face it by the time the constitutionality of the caps on damages was decided, the insurance industry would have successfully denied plenty of injured people full compensation, which translates to more profit for the insurance industry.

Now back to Florida’s attorney general fighting the good fight, right? Defending what is most important to “the State”.

Or, is this important to “the State”? It is important to the insurance industry. And, it is important to hospital lobbying groups and their clients. But, who was it who elected the legislators who passed these laws? Who elected the the attorney general, who now fights so valiantly to defend the denial of fair access to the courts for all?

Now we are back to you and me, Joe Citizen, right?

Whether you agree with filing a lawsuit when someone injures you or not, shouldn’t that be handled not by denying basic rights and access to the courts, but by severe sanctions for filing the near mythical frivolous lawsuit?

The fact is that medical negligence cases are so expensive for lawyers to prepare that no one can afford to front the very significant costs that an average medical malpractice case can require. Inject into that calculation that the lawyer or law firm may see no fees and may never have its costs repaid if they lose at trial. Another fact – doctors win more often than patients in medical malpractice cases. So, when legitimate damages are denied, the practical outcome is a denial of access to the courts for some legitimately harmed.

Back to Florida’s attorney general. In a case called McCall v the United States the Florida Supreme Court has already ruled the non-economic damage caps are unconstitutional for the wrongful death of someone caused by medical malpractice.

In a new case, Susan Kalitan v North Broward Hospital District, the Court of Appeals found the caps on damages were also unconstitutional in a case where the defendant health care providers had only severely injured the plaintiff, but had not killed the plaintiff.

Why unconstitutional? Well, some injured people can collect ALL their damages if they were not injured too badly and others, more severely injured people, are capped for the amount of damages they can collect.

Now, about the insurance crisis. One of the arguments our attorney general uses in supporting a cap on damages is a “proof in the pudding” argument that more companies came into Florida’s market to offer malpractice insurance after the 2003 tort reforms. The attorney general ignores that the financial investment market improved greatly after 2003 and it is the investment market that drives the insurance industry, not premiums earned.

Interestingly, our attorney general does not address who pays for the care of significantly injured medical malpractice victims. If you cap their damages and inhibit their ability to even file a lawsuit, let alone collect the full measure of their damages, when the injured person runs short of money to care for themselves, who pays? Tax payers pay. You and I pay.

Whom should we blame for this unfair shifting of responsibility? The party who caused the injury and the need for care was protected from paying their full share. Is that fair? Of course not and to over simplify what the attorney general knows to be fact is wrong.

Is it fair to impose specific laws in the face of even a real insurance crisis?

• Sure, if you analyze that a crisis actually exists. And, it did not.
• You analyze what is actually causing the problem. Is it a less than optimal investment environment? A failure by insurance companies to properly police their own finances? This was not done at the time.
• You make sure the law you pass applies equally to all classes of citizens and does not unfairly punish those who most need the relief. This law does not fairly apply to all citizens.
• You create a future analysis for when the alleged crisis has been relieved to examine whether a denial of our constitutional rights continues to be necessary in the best interests of insurance companies. This law does not provide for this.

The fact is if you have never been injured by the negligence of someone else, you believe, understandably, that it will not happen to you.

When thinking about refusing citizens their right to receive a jury’s full verdict of their damages, pretend it is your loved one. Think about how you would feel if mistakes were made (negligence) and your loved one is paralyzed for the remainder of their lives. Consider how you would want them to live. Would you want them to be given the bare minimum of care or would you want them to get good care and be able to pay for it themselves? Would you want them to receive a full measure of their damages?

If it were your loved one, would you want them to be abandoned by the law in favor of the best interests of insurance companies and those who caused the injuries to your loved one?