ER sovereign immunity appears dead for session

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A House panel moved forward Monday with a bill aimed at helping doctors fend off medical-malpractice lawsuits — but a proposal to offer sovereign immunity to emergency-room physicians appears dead, reports Jim Saunders of the News Service of Florida.

Also, it remained unclear whether the House would go along with a controversial Senate proposal that would tie medical-malpractice changes with additional drug-prescribing powers for optometrists. That proposal stems from a deal between the Florida Medical Association and optometrists, longtime opponents on the prescribing issue.

The House Government Operations Appropriations Subcommittee voted 8-3 to approve a bill (HB 385) that would make it harder to prove doctors are negligent for failing to order extra tests on patients. Also, the bill includes a legal change that could help defense attorneys get information about injured patients in malpractice cases.

But sponsor Matt Gaetz, R-Fort Walton Beach, said he had to drop part of the bill that would have used the state’s sovereign immunity power to shield emergency-room doctors from costly malpractice lawsuits. Gaetz said the proposal could expose the state to millions of dollars a year in costs, which made it unpalatable as lawmakers deal with a tight budget.

Typically, sovereign immunity is used to shield government agencies from expensive lawsuits. Supporters of the proposed extension have argued that emergency-room doctors deserve extra protection because they are required to treat whatever patients show up at hospitals, including some patients who can’t pay for the care.

“We need sovereign immunity for our doctors, and now is as good a time as any to get it done,” said Rep. Fred Costello, an Ormond Beach Republican who is a dentist.

Medical malpractice has long been a politically volatile issue in the Legislature, with trial attorneys and some lawmakers contending that restricting lawsuits hurts injured patients. A divided Senate Health Regulation Committee last week approved bills that include the same medical-malpractice changes as in HB 385, but the Senate proposals also would go further.

One of the changes in both chambers would affect lawsuits alleging that doctors could have prevented patient injuries or deaths if they had ordered supplemental diagnostic tests. Under the proposed change, patients’ attorneys would have to show by “clear and convincing evidence” that the doctors were negligent in not going forward with the additional tests – a stricter legal standard than now.

Trial attorneys told the subcommittee Monday that the proposal goes too far, with Orlando attorney Maria Tejedor saying it could even affect cases where a doctor doesn’t order a mammogram and a patient later develops potentially deadly breast cancer.

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Peter Schorsch is the President of Extensive Enterprises and is the publisher of some of Florida’s most influential new media websites, including SaintPetersBlog.com, FloridaPolitics.com, ContextFlorida.com, and Sunburn, the morning read of what’s hot in Florida politics. SaintPetersBlog has for three years running been ranked by the Washington Post as the best state-based blog in Florida. In addition to his publishing efforts, Peter is a political consultant to several of the state’s largest governmental affairs and public relations firms. Peter lives in St. Petersburg with his wife, Michelle, and their daughter, Ella.