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Florida lawmakers seek Medicaid doctors', hospitals', nursing homes' liability limits

TALLAHASSEE — A baby's brain is damaged in a botched surgery. A 10-year-old in Florida's child-welfare system is tortured and killed as her helpless brother listens in torment.

These ripped-from-the-headlines cases are recipes for easy lawsuits — but that could change if Republican lawmakers get their way.

In the midst of expanding HMO-style management in Medicaid, the Legislature is passing a raft of proposals that limit the liability of Medicaid doctors, hospitals, nursing homes and private community-based care companies.

Backers of the legislation include doctors and hospitals. They say the underlying logic is simple: Give Medicaid providers and child-welfare companies lawsuit protections because they're acting on behalf of the state, which is shielded from lawsuits.

But opponents — Democrats and trial attorneys — say the Legislature is letting bad actors off the hook while protecting the profits of the insurance industry.

"This bill is affecting the most vulnerable and needy people in the state of Florida — those are disabled children," Maria Tejedor, an Orlando trial attorney, told lawmakers last week. "It creates two doors to the courthouse: One for the haves. And one for the have-nots."

But Sen. Joe Negron, a Stuart Republican and chair of the Senate's health budget committee, said lawmakers are trying to strike "a delicate balance … We want to protect access to the courts. But we have to make sure that, with the public funds we're spending, there's insurance available to pay these claims."

Under the House Medicaid bill, a Medicaid recipient is limited to receiving a maximum of $300,000 in malpractice and other tort cases for so-called "noneconomic damages," such as pain-and-suffering awards. Current law generally limits medical-malpractice awards to $500,000 — except in egregious cases.

Tejedor said the stricter cap on the state's 3 million Medicaid recipients, who are poor and disabled, would make it nearly impossible for attorneys such as her to shoulder the expense of investigating, gathering evidence and hiring expert witnesses.

Citing statistics from the state agency overseeing Medicaid, Tejedor said trial attorneys have returned $20 million to the state since 2003 in medical-malpractice cases. She said the lawsuit settlements have also helped the injured parties get off Medicaid and, therefore, spare taxpayers from expensive treatments.

Case in point: Isaac Rosario, a 3-year-old boy whom she said was injured when medical staff at Orange County's Winnie Palmer Hospital accidentally injected food into his head and "blew the child's brain out." She said Medicaid has paid for $715,000 worth of treatment in two years.

A Winnie Palmer spokesman confirmed the case, which was recently settled, but declined further comment.

The House Medicaid bill sponsor, Republican Rob Schenck of Spring Hill, downplayed the lawsuit caps and said trial attorneys would have to be guided by their own "morals" in deciding whether to take a case. He also cast doubt on the statistics cited by Tejedor.

"I find it hard to believe we would take a trial attorney's opinion on what costs the state and what doesn't cost the state," Schenck said.

Tejedor noted that medical-malpractice insurance rates are down, profits are up and the number of doctors has increased in Florida since it reformed liability laws in 2003.

But Rep. Mike Horner, R-Kissimmee, pointed to other statistics noting other problems with Florida's health market.

"We have the lowest ratio of doctors per senior. We have the lowest ratio of surgeons. And we're at half the national average for emergency room residents," he said. "Does that sound like, perhaps, we have a shortage of physicians?"

Another House bill caps liability for community-based care providers. It passed Monday in a committee. The House Medicaid bill was debated Tuesday on the full floor and is scheduled for a vote Thursday.

The Senate's Medicaid bill, which will be heard Wednesday in the Senate's Health Regulation Committee, caps some nursing home damages at $250,000, gives robust legal protections to doctors at teaching hospitals such as Miami's Jackson Memorial Hospital and also limits liability of community-based care providers.

The proposal was filed before the grisly death in February of 10-year-old Nubia Barahona, who was stuffed in a garbage bag, in the back of her adoptive father's pickup truck. Her twin brother, Victor, was poisoned with pesticides and near death.

Trial attorney Gary Farmer said Victor's treatment won't be cheap.

"This little boy," he said, "has spent more than a week in Miami Jackson's burn unit. He was soaked head-to-toe in chemicals. … He's going to be dealing with a lifetime of care, just to the injuries to his skin."

Our Kids, the Miami community-based care agency overseeing Victor and Nubia's care, acknowledged it made mistakes. But CEO Frances P. Allegra took issue with the trial-lawyer description of the bill as the "Barahona Relief Act.''

Allegra said the bill isn't retroactive, so the agency can still be sued under existing tort laws. She said insurance rates are rising, leaving a little less money for child-welfare services.

"The people in this business care about children," Allegra said. "The debate makes it sound like there are bad people out there serving kids — and that's just not true."

Marc Caputo can be reached at mcaputo@miamiherald.com.

Florida lawmakers seek Medicaid doctors', hospitals', nursing homes' liability limits 03/29/11 [Last modified: Wednesday, March 30, 2011 8:53am]
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