Monday, May 16, 2011

Tort reforms: 2011 Florida Legislature passed some, passes on others

There were victories and defeats in the robust effort to obtain tort reform during the 2011 Florida Legislative Session.  The insurance and business communities had high hopes, anchored on Florida's conservative Legislature and Governor.  Here are hard-fought tort reform bills that passed:*

  • Medical malpractice.  H479 will require out-of-state doctors to apply for a certificate to testify as an expert witness in Florida, and enable the State to discipline such doctors if they are found to have offered "deceptive or fraudulent" testimony.  For insurers, the bill eliminates the requirement that medical malpractice insurance policies include a clause authorizing the insurer to settle within policy limits without the insured's permission (and removes the prohibition against a clause giving the insured the right to veto a settlement within the policy limits).  The bill represents a big step for the Florida Medical Association, which has "been working to pass expert witness reform for over a decade."  Legislature passes lawsuit protection for doctors.
  • Negligence (crashworthiness/defective products).  S142 establishes a comparative fault system in torts involving defective products, permitting juries to consider the fault of all persons who contributed to the accident.  The bill aligns Florida with the majority of states and reverses a 2001 Florida Supreme Court decision, D’Amario v. Ford Motor Co.  For a detailed explanation of the bill, see Senate Staff Analysis on SB 142.
  • Medicaid.  H7109 (section 28) caps the amounts that a Medicaid patient may recover for non-economic damages (e.g., pain and suffering) -- at $200,000 per practitioner and $300,000 per incident, subject to exceptions.
  • Sovereign immunity for private teaching hospitals.  S1676 extends sovereign immunity protections to non-profit private colleges and universities which own or operate a medical school and provide teaching services at hospitals.
* Bills are not yet law until acted on by the Governor.

Then there were the controversial reforms that did not pass out of all committees:
  • Bad faith.  H 1187 / S 1592 would have modified common law, third-party "bad faith" by incorporating reforms into section 624.155, Florida Statutes.
  • PIP legal reform.  H 967 / S 1694 would have imposed limitations on attorneys fees for policyholders and providers.
  • Expert witness.  H391 / S822 would have established stricter standards on the type of expert testimony admissible in trials, adopting the federal "Daubert" standard (in place of the "Frey" standard).  For a detailed explanation of the bill, see Senate Staff Analysis on SB 822.
  • Nursing homes. H661 / S1396 would have imposed new caps on nursing home wrongful death lawsuits and shielded some owners and investors from liability.
This summary was prepared by Perry Cone and posted at

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