Surviving tort reform: Changes in law in Florida have affected lawyers, consultants

 By Kathleen Sesco, RN, BSN, MHA
© The Medical-Legal News 2007

In June 1999, sweeping changes were signed into law in Florida which had an effect on almost every civil cause of action filed in the state. All civil cases occurring after October, 1999, are now subject to changes made in the name of tort reform.

As such, the significant changes made to the statutes governing these types of cases affect all members of society, not just lawyers. Tort reform is intended to reduce litigation’s adverse effects on the economy by controlling frivolous lawsuits.

Such measures in Florida are as follows:

• HB 1019 and SB 2562, which address the asbestos lawsuits and tighten the medical criteria in those cases.

• HB 1925 and SB 2564 address class action lawsuits, defining residency restrictions to within the state.

• Significant changes were made to employer’s liability for any tort actions of its employees, as well as an employer’s liability for its own actions.

• Joint and several liability provisions (HB 145) allow a proportional liability based on the percentage of fault. The intent is to stop litigants from targeting corporations, insurers and others believed to have “deep pockets.”

• Tort reform, also addressed product liability regarding the “statute of repost,” or a limitation of the time during which a cause of action can arise.

The healthcare industry felt the effect of tort reform after Florida approved a measure that suspends a doctor’s license if that doctor has three malpractice payouts.

Florida physicians found the monthly cost of malpractice insurance premiums went up significantly after the reforms were announced, though increases have depended on specialty.

Tort reform initiated a flurry of appeals in the courts. Judge Nikki Ann Clark found that the law blatantly violated constitutional requirements by putting severe limitations on the rights of consumers and injured people. Numerous matters are still being heard in the courts. •

Law firms and medical consulting practices adapt

 In 2003, Governor Jeb Bush of Florida signed a med mal bill into law with a $250,000 cap on pain and suffering. The economic impact of tort reform has reached a number of consulting practices as there is a noticeable reduction in the number of med mal cases, which in turn means less need for experts, physicians and nurses to testify. Even independent court reporting businesses have felt the impact.

“Law firms just are not hiring legal nurse consultants. For the independent LNC it is very tough.” says Maureen Orr, a nurse consultant in Florida . She adds, “Med mal insurance rates have not been rising at the same pace as before.”

Orr offers that LNCs have options such as to work with smaller law firms, in non-med mal work or in state jobs. “Smaller firms sometimes will go after smaller cases even with the caps in place. In divorce cases there may be medical issues and life care planning. General liability cases such as slip and fall cases still exist. And some attorneys have been doing military medicine cases. A recent case involves surgical instruments that had not been cleaned. The attorney is suing for $25 million.”

 Trends

• Plaintiff attorneys sometimes ask clients to waive their legal rights, and thus increase the percentage that can be collected in contingency fees. The Florida Supreme Court ruled that this practice was permissible.

• A medical consultant can review billing to establish the medical damages and/or the pending lien amounts in a case.

• The consultant has a role in subrogation of the medical lines as a liaison between the adjuster and attorney.

• Consultants should have an understanding of healthcare insurance. A nurse can be an asset to a business that is buying healthcare coverage. The consultant can be an important asset in evaluating the  coverage for the premium dollar.

• Consultants in caps states can move into workers’ compensation, criminal law, domestic violence, life care planning, forensic nursing, Medicare set-asides, personal injury and case management. (See Page 13 for a PI story and Page 18 for a case management article). •

 — Kathleen Sesco, staff reports

 Kathleen Sesco RN, BSN, MHA is a legal nurse consultant at Howell & O’Neal PA, in Jacksonville ; sescok@yahoo.com.