The 2011 Florida legislature, under the thumb of one-party rule in both the House and Senate, imposed new barriers for Florida medical malpractice victims when they seek justice; this endangers patient safety by reducing healthcare provider accountability. Beginning October 1, 2011, the law hinders medical malpractice victims’ ability to present the expert testimony of qualified American physicians. Highly qualified physicians from other states, even medical school professors, must now pay a fee to “register” with the Florida Department of Health and risk disciplinary proceedings if a medical malpractice defendant claims that deceptive or fraudulent testimony was given. Also, before filing a medical malpractice suit, a form must be provided to potential medical malpractice defendants, giving them access to the patient’s private medical records. Medicaid recipients’ compensation for pain, suffering, inconvenience, and loss of quality of life – no matter how severe the injury – are now “capped” at $200,000 per medical malpractice practitioner and $300,000 per medical malpractice victim. (Even when the medical malpractice was malicious or in bad faith or was manslaughter, the legislature dictates that the practitioner is not required to pay the full compensation deserved by the Medicaid recipient if above the arbitrary caps embraced by the legislature.) Private teaching hospitals, such as the University of Miami and Shands Jacksonville, are now protected as if they were governmental institutions and enjoy the immunity of the State of Florida with a cap on medical malpractice damages of $200,000 per medical malpractice victim and $300,000 per medical malpractice occurrence.
These changes in the law, ushered in by a one-party supermajority, promote medical malpractice by adding to the many existing barriers facing those seeking justice. Not only do these amendments strip rights away from medical malpractice victims, they also protect those who have committed medical malpractice by reducing the liability to compensate the victim when a health care provider violated the standard of care.
Wayne Hogan of Terrell • Hogan is a past president of The Florida Justice Association and applauds Florida Justice for its continuing fight against laws that promote medical malpractice; Florida Justice and its members are leading the challenge to these special interest laws for violating the United States Constitution and federal law and the Florida Constitution.
The American Bar Association Section of Litigation has an article concerning this issue: States Enact Expert Witness Legislation for Medical Injury Actions. Hogan has commented on this article in the ABA Journal website saying:
“November 4, 2011 – So next a statute requiring engineers testifying in cases to register in Florida? Accountants? Architects? Of course not. The goal is focused and sinister: erect yet another barrier to justice for injured patients. If Florida physicians were willing to review cases for malpractice and, more importantly, testify in Florida courtrooms to the violation of the standard of care, there would be little or no need to seek expertise in other states. But that would subject them to derision, at a minimum, among their colleagues for having had the audacity to call[ ] it as they see it. The real object of the Florida legislation is to keep the truth hidden to avoid accountability. The legislature should have the good sense to focus on promoting patient safety, but that is too much to hope.”