In a deal tying two controversial health-care issues, a Senate committee Thursday approved a plan that would put new restrictions on medical-malpractice lawsuits and expand optometrists’ power to prescribe drugs, reports Jim Saunders of the News Service of Florida.
The deal, which surfaced in a 65-page amendment in the Health Regulation Committee, came after negotiations between the Florida Medical Association and the optometric industry — longtime adversaries about the prescribing issue.
In effect, the amendment would provide medical-malpractice legal restrictions that the FMA has made a top priority. In exchange, the FMA agreed to go along with allowing optometrists to prescribe some oral medications.
“These provisions (of the amendment) live together and die together,” said Rebecca O’Hara, the FMA’s vice president of governmental affairs.
A sharply divided Health Regulation Committee added the so-called “strike-all” amendment to two bills (SB 1316 and SB 1506), after hearing opposition from trial lawyers who represent patients in malpractice cases. Also, the Florida Society of Ophthalmology, which has long opposed granting more prescribing powers to optometrists, said it was left out of negotiating the deal.
To help ensure passage, Sen. Mike Bennett, a Bradenton Republican who is a lieutenant to President Mike Haridopolos, was added to the committee for the meeting. Bennett’s vote was crucial in killing two attempts to eliminate proposed medical-malpractice restrictions — attempts that failed because of deadlocked 4-4 votes.
The committee approved the overall bills, sponsored by incoming President Don Gaetz, R-Niceville, and Rules Chairman John Thrasher, R-St. Augustine, in 5-3 votes.
Supporting the bills were Gaetz, Bennett, Sen. Dennis Jones, R-Seminole; Sen. Jim Norman, R-Tampa; and Sen. Eleanor Sobel, D-Hollywood. Opposing them were committee Chairman Rene Garcia, R-Hialeah; Sen. Miguel Diaz de la Portilla, R-Miami; and Sen. Mike Fasano, R-New Port Richey.
Gaetz touted the strike-all amendment as a “peace treaty” in what he described as a “38-year turf war” between doctors and optometrists about drug prescribing.
Optometrists already can apply what are known as topical medications to patients’ eyes, but are not allowed to prescribe oral drugs. The FMA and ophthalmologists have argued that optometrists do not have the same level of training as medical doctors and that expanded prescribing powers could endanger patient safety — an argument that optometrists reject.
The deal would allow optometrists to prescribe 14 types of oral medications but also includes restrictions. For instance, optometrists would have to take a pharmacology course and exam and also could not prescribe more than 72 hours worth of some drugs without consulting a physician.
Most of the debate during Thursday’s meeting, however, centered on the medical-malpractice issues.
The amendment, for example, would make it harder to prove that doctors are negligent for not performing supplemental diagnostic tests on patients. Doctors contend that fear of lawsuits causes them to do unnecessary tests and practice “defensive medicine,” which drives up health-care costs.
“This package not only goes to tort reform,” said Chris Nuland, a lobbyist for several physician groups. “It goes to health care reform.”
But Garcia made an impassioned — though unsuccessful — plea to eliminate the stricter burden of proof for supplemental tests, saying lawmakers need to protect patients.
“It has nothing to do with the FMA. It has nothing to do with the trial bar,” Garcia said. “It has to do with what’s right.”
Another controversial part of the amendment would make clear that doctors and other health providers can sign agreements with patients to funnel future malpractice claims to arbitration instead of jury trials. The arbitration agreements could include limits on damages.
Sen. Miguel Diaz de la Portilla, a Miami Republican who unsuccessfully tried to eliminate the arbitration provision, said it is “one-sided” in favor of doctors, who could include low damage amounts in the arbitration agreements.
But FMA General Counsel Jeff Scott said many physicians have used such arbitration agreements in recent years and that the amendment would make clear the practice is legitimate. Also, he said courts could step in if arbitration agreements are fraudulent or unconscionable toward patients.
In adding the strike-all amendment to SB 1506, the committee replaced a Thrasher proposal to offer sovereign immunity to emergency-room doctors and workers. That proposal, which would have limited the damages that patients can receive for negligence in emergency rooms, also had been highly controversial.
SB 1316, meanwhile, dealt with a variety of issues related to Medicaid and the Agency for Health Care Administration, including an attempt to better regulate assisted-living facilities.
Those issues are addressed in the strike-all amendment. But Fasano said he was concerned about putting the assisted-living reforms in a bill that could get bogged down because of fighting about the malpractice and optometric issues.
“You take extremely controversial issues, and you’ve put them all around a good public safety issue for our senior citizens,” Fasano said.
But Gaetz assured Fasano that the assisted-living reforms also would be included in another bill.