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A Times Editorial

Devaluing the lives of poor, elderly

Leaders in the Florida Legislature frequently talk about their fiscal conservative principles. But in passing four bills that would make it harder to bring personal injury cases and cap the damages that courts can award, lawmakers have closed or curtailed access to the courts for thousands of injured Floridians. That makes it far more likely that the cost of catastrophic injuries due to medical malpractice or a faulty vehicle design will shift to taxpayers. If Gov. Rick Scott signs the bill he will signal he would rather let wrongdoers off the hook and shift the burden to taxpayers.

During the session that ended May 7, the Republican-led Legislature basically authorized a two-tier justice system, where the poor or elderly would no longer have their injuries due to medial malpractice compensated to the same extent as others. That raises real constitutional concerns about equal protection and access to the courts.

As part of the state's plan to turn the state-federal Medicaid program over to managed care organizations, HB 7109 would place a $300,000 cap on pain-and-suffering damages for the state's nearly 3 million Medicaid recipients, including those in nursing homes. That cap is far lower than the conventional medical malpractice award.

But the real outrage isn't that Medicaid victims will ultimately collect less. It's that the cap makes it far less likely they can even find a lawyer to take their case on a contingency basis. The high cost of medical malpractice cases will make if financially impossible for many attorneys to finance even legitimate cases. Ultimately that means the cost for long-term care for these poor Floridians will move to taxpayers rather than being borne by the doctors, nurses and hospitals that caused the harm.

The same concerns apply to SB 1676, which would give medical faculty of the University of Miami the same "sovereign immunity" — or protection from major malpractice judgements — when teaching at Miami's public Jackson Memorial Health System. Sovereign immunity, a holdover from British law, limits government's liability. In Florida, a victim of medical malpractice by a government-financed doctor is limited to $100,000. Any judgment above that amount must be approved by the Legislature. But UM is not a government institution. It's a private medical school that shouldn't be shielded from liability or from the cost of defending lawsuits when its doctors severely injure a patient.

Lawmakers also tipped the scale against injured patients with HB 479, by forcing additional state regulation on medical expert witnesses, including requiring them to obtain state certification and subjecting them to discipline, such as the potential loss of their license, if they give deceptive testimony. The goal is to make it harder for personal injury lawyers to bring cases by intimidating and harassing the pool of medical professionals willing to testify.

Lawmakers were also willing to let automakers limit their liabilities from product defects. Currently, under the "crashworthiness" doctrine, a person injured in a car wreck can sue the automaker separately, claiming that injuries were caused or exacerbated by a defect in the vehicle's design. But SB 142 would let juries apportion blame among all the responsible parties to an accident — such as a drunken driver or a driver who was texting — which potentially lets car companies escape liability for problems built into their vehicles.

Legislative leaders have bragged that all four bills are good tort reform. But what these bills really do is make it much harder for severely injured Floridians to obtain compensation through the legal system, meaning those with catastrophic injuries will likely have to turn to taxpayers for care. There is nothing fair or fiscally conservative about it.

Devaluing the lives of poor, elderly 05/13/11 [Last modified: Friday, May 13, 2011 5:33pm]

    

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