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Senate ponders tort changes that include giving ER doctors malpractice protection

TALLAHASSEE — Even as the GOP assails President Barack Obama's health care overhaul as a "government takeover," top Florida Republicans are pushing a measure that opponents say would do the same for the state's emergency rooms.

State Sen. John Thrasher, the Florida Republican Party chairman, is pushing legislation to make all emergency room health care providers — nurses, doctors and even paramedics — "agents of the state" and consequently immune from medical malpractice lawsuits.

So if a doctor at a private hospital makes a reckless mistake, the state would pay the claim, subject to the current sovereign immunity cap of $200,000. To recover more, victims would need to file a claims bill in the Legislature, a process that can take years.

"It's all about the cost of health care to all of us, and protecting those guys and ladies who are on the front line of difficult situations," Thrasher said in a recent interview.

Marcus Michles, a Pensacola personal injury attorney, said it's absurd that the state would take responsibility on behalf of for-profit hospitals that make millions.

"I find it ironic that here at the state level (they are considering) a 'public option,' " Michles said. "This takes private citizens whose health care comes from the private industry and we flip it around and we make it the government's responsibility to pick up the tangible tab."

The effort is part of one of the more intriguing political issues this legislative session in the perpetual cat-vs.-dog brawl between business interests and trial lawyers.

Thrasher's legislation (SB1474) is not new. The House has passed it before. But it is making more progress in the Senate this year in part because of the powerful bill sponsor, who is a former Florida Medical Association lobbyist.

An entire package of legislation opposed by the trial lawyer lobby appears likely to pass this year after Senate President Jeff Atwater and House Speaker Larry Cretul reached a deal. The bills include a cap on attorney fees for lawsuits on behalf of the state Attorney General's Office; protections for businesses against so-called slip-and-fall claims; and the ability for parents to waive liability, but not negligence, for children participating in dangerous activities.

On the latter issue, GOP lawmakers agreed to a compromise that accepts trial-lawyer-friendly language. The Florida Justice Association, the lawyer's lobbying arm, also negotiated a deal to pass legislation to increase the sovereign immunity caps from $100,000 to $200,000 per person and $200,000 to $300,000 per incident, which is much less than what they initially sought.

The emergency room immunity is not a part of the pact and still faces a tough journey at its next stop, the Senate Banking and Insurance Committee, which is nearly split on the legislation. The bill was expected to be heard Wednesday, but Thrasher didn't attend and time expired. He was at a presentation on the history of the murals in the House chamber at the time.

"I think that when it does come up there's going to be significant debate," said Sen. Garrett Richter, the committee's GOP chairman.

But the trial bar isn't taking chances, vigilantly fighting the bill. It held an event Wednesday featuring a handful of victims and families affected by emergency room malpractice. They held posters of loved ones and captions that included the millions owed in hospital bills. And one by one they told grim stories about pain, disability and death.

The trial lawyers contend current law already limits lawsuits against emergency room doctors by requiring lawsuits to show a hospital was reckless in its treatment. The cap on punitive damages, which was one of the lowest in the nation when it was approved in 2003, is $150,000.

But Justin Sempsrott, a fourth-year medical student at the University of South Florida, said the cost of malpractice insurance still grows. Now he is looking elsewhere to practice emergency medicine.

"Because it's a state mandate to treat," he said, "these folks in the emergency room are essentially acting as agents of the sate and should be afforded the same protections."

Senate ponders tort changes that include giving ER doctors malpractice protection 03/24/10 [Last modified: Wednesday, March 24, 2010 11:12pm]

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