Senate removes key provisions from medical malpractice bill

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The Florida Senate on Monday blew holes in a medical-malpractice bill backed by doctors and hospitals, as the House overwhelmingly approved the proposal across the Capitol, reports Jim Saunders of the News Service of Florida

Senators eliminated key parts of the bill, including one that would shield hospitals from liability if contracted physicians commit malpractice. Hospitals often contract with outside groups of physicians, such as radiologists, to provide care.

Critics said that part of the bill could hurt patients who go to hospitals and have little choice in their physicians. If a hospital is not liable — and a doctor lacks malpractice insurance — the patient might not be adequately compensated if malpractice occurs, they argued.

?t (deleting that part of the bill) provides recourse to patients who are injured in hospitals by physicians they don? even know,? said Sen. Miguel Diaz de la Portilla, a Miami Republican who sponsored an amendment to remove the provision.

But bill sponsor Alan Hays, R-Umatilla, defended the proposal — and rejected charges that legal immunity would give hospitals leeway to contract with cheaper, less-qualified physicians.

?he hospitals are there to provide quality medical care to the patients,? Hays said.

The Senate? approval of three amendments was a victory for personal-injury lawyers, who have lobbied against the bill (SB 1590). The stripped-down bill continues to include new certification requirements for out-of-state expert witnesses who testify against doctors in malpractice cases.

Supporters argue those requirements would allow Florida to discipline experts who offer deceptive or fraudulent testimony — a longtime complaint of doctors.

The Senate debate came at the same time the House voted 88-28 to approve its version of the bill (HB 479), which still has the proposals backed by doctors and hospitals. With the legislative session scheduled to end Friday, it is not clear how the chambers will reconcile the bills.

Rep. Bill Hager, R-Boca Raton, said legal reforms are needed because Florida continues to have a doctor shortage in some specialties.

?et? stand with our physicians, let? stand with our hospitals,? Hager said.

But Rep. Richard Steinberg, D-Miami Beach, pointed to 2003 legislation that made it harder to sue for malpractice. He said lawmakers received promises that the measure would lower malpractice insurance rates, but doctors are still complaining about rates and seeking more limits on lawsuits.

?he issue is not that the patients have too many rights, the problem is there is not sufficient competition in the malpractice-insurance industry,? Steinberg said.

The House also voted 77-41 on Monday to approve a bill (HB 661) that would help shield nursing homes from lawsuits. Among other things, the bill would place a $300,000 cap on non-economic damages in wrongful-death lawsuits and make it harder to sue nursing homes for punitive damages.

But the fate of the nursing-home bill also is unclear, because a Senate version stalled in a committee.

Groups such as the Florida Medical Association and the Florida Hospital Association have lobbied for the medical-malpractice bill.

Along with the eliminating the proposed malpractice shield for hospitals, the Senate on Monday also deleted part of the bill that dealt with gathering patient information in malpractice cases.

The proposal called for allowing for what are known as ?x parte?communications between defense attorneys and physicians who treat patients after alleged malpractice. The talks could occur without the patients?lawyers taking part.

But Sen. Anitere Flores, a Miami Republican who sponsored an amendment to eliminate the proposal, said defense attorneys should not be able to interview treating physicians without the patients?lawyers being present.

? don? think it? right for my medical history to be divulged without my knowledge,? Flores said.

But Hays said he was trying to fix a ?rossly un-level playing field?that allows patients?attorneys to have access to information from treating physicians.

Senators also eliminated part of the bill that called for making it harder to sue doctors over their failure to order supplemental diagnostic tests for patients.

Doctors argue that fear of lawsuits causes them to order unnecessary tests and perform ?efensive medicine.?They say that drives up medical costs.

The bill proposed requiring patients to show by ?lear and convincing evidence?that a doctor? failure to order additional tests violated standards of care. That would make such cases harder to prove.

But the proposal? critics said the state doesn? need such a requirement.

?here? no need to change the burden of proof,? said Sen. Rene Garcia, a Hialeah Republican who backed eliminating that part of the bill.

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.