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FJA MEMBER UPDATE
LATEST LEGAL NEWS

Dear FJA Member:

At the Florida Justice Association, we are committed to protecting the civil justice system for your clients and your practice. There are major changes in Florida law affecting your practice, and we want to make sure you have the most up-do-date information.

 

SOVEREIGN IMMUNITY CAPS TO INCREASE:

During the 2010 Legislative Session, the FJA scored a major accomplishment for those who have suffered wrongdoing at the hands of state actors. Legislation (SB 2060) passed the Florida Legislature, raising the sovereign immunity limits in Florida from $100,000 to $200,000 per claimant and from $200,000 to $300,000 per incident or occurrence. Considering the challenges we commonly face in the Florida Legislature as well as the severe economic conditions facing the State, this legislation was a tremendous victory for the Florida Justice Association and our members.

While it passed in 2010, the effective date for the bill was extended until this fall with the higher caps taking effect for causes of action accruing on or after October 1, 2011.


MEDICAL MALPRACTICE CHANGES:

This past session, insurance companies and medical providers sought draconian changes to the state's already restrictive medical malpractice laws. An omnibus medical malpractice bill (HB 479) was filed by Rep. Mike Horner, but due to the efforts of the FJA, many of the most offensive provisions were stripped. To assist your practice, here is a quick summary of what was in the final bill and what was not.

HB 479 (Ch. 2011-233) - Effective Oct. 1st and applying to causes of action accruing on or after that date:

  • Expert Witness Certification: State law now requires certification of expert witnesses, testifying as medical doctors, doctor of osteopathic medicine and dentists. The certification will be managed by the Florida Department of Health.
  • Expert Witness Disciplinary Action: Expert witnesses subject to certification may be disciplined for deceptive or fraudulent testimony.

  • Cataract Surgery Informed Consent: The law now provides a standardized informed consent form for cataract surgery that creates a rebuttable presumption that a physician properly disclosed medical risks.
  • Evidence Admissibility: The evidence code now prohibits the admissibility of evidence of insurer reimbursement policies or determination regarding patients' care as well as of health care provider's failure to comply with any federal requirements.

  • Volunteer Sports Team Physicians: The bill provides immunity from liability for volunteer team doctors arising from the evaluation of a student for purposes of participation in K-12 interscholastic sports unless the diagnosis was conducted in a "wrongful manner."

Provisions removed from the bill:

  • Ex Parte Communications: Proposed language specifically allowing a defense attorney to talk to claimant's treating physicians without notice to or presence of claimant or representative.
  • Hospital Vicarious Liability: Proposed elimination of a hospital's vicarious liability for medical malpractice committed by independent contractors working in the facility.
  • Standard of Care: Proposed clear and convincing burden of proof for malpractice based on supplemental diagnostic testing or failure to diagnose.

Other Medical Malpractice Legislation:

  • The Medicaid Reform bill passed by the Legislature generally caps noneconomic damages for Medicaid patients at $200,000 per practitioner and $300,000 per claimant effective July 1st. (HB 7109; Ch. 2011-135).
  • Legislators also granted sovereign immunity to private medical schools and their employees providing services at teaching hospitals (primarily affects the University of Miami). Applies to causes of actions accruing on or after June 24, 2011 (SB 1676; Ch. 2011-219).
  • Sovereign immunity was also granted to health care entities under the Shands corporate umbrella. This legislation is applicable to causes of action accruing on or after July 1, 2011. (HB 395; Ch. 2011-114) .

FJA FILES AMICUS CURIAE BRIEF IN LANDMARK MEDICAL MALPRACTICE CASE:

In 2006, Air Force spouse Michelle McCall died as a result of medical negligence during childbirth. Following a verdict in favor of the McCall family, her estate was subject to the arbitrary medical malpractice caps in Florida law. Subsequently, the 11th Circuit Court of Appeals certified four state constitutional questions to the Florida Supreme Court regarding the validity of the cap. McCall v. U.S. The Florida Justice Association submitted an amicus curiae brief on behalf of the appellant last month, and we are currently awaiting oral arguments to be set.

The FJA is proud to be joined as amicus curiae by such prestigious organization as AARP, AFL-CIO, and AFSCME which represents public employees. Additional amicus curiae briefs were filed on behalf of the McCall family by the Florida Consumer Action Network, Floridians for Patient Protection, and various legal scholars.

Many thanks to Henry Courtney, Sara Courtney-Baigorri, Stephen Poche, Bob Peck, Joel Perwin, Barbara Green, John Mills, Lincoln Connolly and all the lawyers and organizations involved in the McCall case and the pro-plaintiff amicus briefs.

The mission of the Florida Justice Association is to protect the civil justice system, your practice and your clients. We are here to serve our members, so if you have any questions on how these recent developments affect you, please don't hesitate to call us at (850) 224-9403.

Sincerely,


Debra Henley
Executive Director



P.S. - If you have any questions about how these changes in the law or the McCall case may affect your practice, plan to attend the medical malpractice seminars at the "Masters of Justice" on Oct. 27-28, 2011 at the Intercontinental Hotel in Miami. Lawyers intimately involved with the legislation, as well as masters of medical negligence cases, will be there to answer your questions. Please go online and register today.