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PERENNIAL TORT REFORM BATTLE A TIE THIS SESSION

Business, doctors and trial lawyers can claim some success.

By LILLY ROCKWELL

News Service of Florida

TALLAHASSEE - There were no clear winners or losers on lawsuit reform in this year's legislative session.

In the perennial battle between the powerful business and health care lobbies and trial lawyers, the 2011 session could probably best be declared a tie, with each side walking away with its fair share of victories and defeats.

"We took some dings," said Steve Schale, a spokesman for the Florida Justice Association, which represents trial lawyers. "We're not going to stand on top of a mountain and scream 'We had a great year.'" But Schale said the group was able to "moderate or beat back some things."

The session started with dozens of bills seeking to limit large payouts in lawsuits, ranging from extensions of the state's sovereign immunity laws to new lawsuit limits in medical malpractice cases, nursing home claims and lawsuits against foster care workers.

But only a handful of those proposals passed, and some were weakened from their original version. Still, if there was one winner, it was the Florida Medical Association, which this year succeeded after a decade of trying in regulating expert-witness testimony in medical-malpractice cases.

The organization tacked on a series of wish-list items to its expert witness bill, but some were scaled back. Tim Stapleton, executive director of the Florida Medical Association, said the group was more than pleased.

"If we got everything we asked for, it would have been an A-plus session," Stapleton said. "Instead, it's an A. We're happy."

The tort reform bills that passed and are poised to become law include:

SB 142: A reversal of a 2001 Florida Supreme Court decision that now allows juries to consider the cause of the accident as well as the role of the carmaker when placing blame for enhanced injuries caused by alleged defects.

HB 7109: Installs a lower cap for how much a Medicaid patient is entitled to in lawsuits for noneconomic damages - generally pain and suffering. The new caps are $200,000 per practitioner and $300,000 per incident.

HB 479: New requirements for out-of-state expert witnesses in medical malpractice cases. Now the Department of Health has to register and approve these expert witnesses.

SB 1676: Extends a legal protection that local and state governments enjoy that prevents big payouts in lawsuits to teaching hospitals. The bill grants sovereign immunity protections to nonprofit private colleges and universities which own or operate a medical school and provide teaching services at hospitals.

Many attempts at tort reform fell short, including:

HB 391/SB 822: A proposal to establish stricter standards on the type of expert witnesses allowed in trials. The bill would have established the more stringent "Daubert" standard.

HB 661/SB 1396: Places new caps on nursing home wrongful death lawsuits and shields some owners and investors in nursing homes from having to pay up in these lawsuits.

HB 1187/SB 1592: Changes a law that requires insurers act in good faith in attempting to settle and pay claims. This would change what is called the "bad faith" standard so the insurer's actions have to be proved "arbitrary." Current law only requires proof the insurer did not act "fairly and honestly" toward the insured.

Teye Reeves, a lobbyist for the Florida Chamber of Commerce, said some of the bills that failed could be due to "tort fatigue." There were more bills than usual filed this year dealing with tort reform, in part due to the big appetite for lawsuit limits from a Legislature dominated by Republicans and a governor who has emphasized his willingness to help business.

Times/Herald staff writer Marc Caputo contributed to this report.

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