Yes: Lack of limit places quality health care at risk

In 2002, Gov. Jeb Bush created a Select Task Force onHealthcare Professional Liability Insurance and appointed me, University of Central Florida President John Hitt, Florida A&MUniversity President Fred Gainous, University of Miami President Donna Shalala, andUniversity of South Florida Trustee Richard Beard. Wewere given the charge of broadly examining a health-care liability-insurance crisis that threatened a critical reduction in the availability and affordability of quality health care.

We spent months traveling the state, listening to interested parties, gathering relevant data, and analyzing trends. Whatwe observed and documentedwas alarming:

In 2002, the average liability premium per doctor in Floridawas 55 percent higher than the national average.

For the period from1996 to 2002, average insurance premiums in Florida shot up 64 percent, compared to the national average increase of 26 percent.

The number of insurance companies writing medical liability insurance in Florida had dropped from 66 in the late 1990s to just 12 by 2002. Only four companies were routinely issuing policies.

We further found that this crisis was causing doctors to retire early or leave the state. In one shocking example, in the year prior to our final report, Orlando lost 10 percent of its obstetrician/gynecologists and 20 percent to 25 percent of those remainingworked without liability insurance. Meanwhile, hospitals began to discontinue maternity and trauma services because of insurance costs.

To address this crisis, we made 60 recommendations and stated the one “that will have the greatest long-term impact on the healthcare provider liability-insurance rates, and thus eliminate the crises of availability and affordability of health care in Florida, was a cap on noneconomic damages”— things like pain and suffering. In 2003, the Legislature subsequently passed and Gov. Jeb Bush enacted that cap.

Recently, the Florida Supreme Court independently re-evaluated the evidence relied upon by the Legislature and decided that this cap on noneconomic damages— the very centerpiece of all our work and deliberation— was invalid under the Florida Constitution.

So, despite a comprehensive and completely transparent factfinding effort, the court decided that the cap “[bore] no rational relationship to a legitimate state objective” and even dismissed the problem as an “alleged medical-malpractice-insurance crisis.”

Oddly, the court based its decision partly on the law’s success, pointing to the fact that:

Physicians who go to medical school in Florida are nowstaying in Florida to practice at a rate that only three other states exceed.

Medical liability claims have decreased significantly, down 60 percent from 5,829 in 2003-04 to 2,303 in 2011-12.

Total payout for noneconomic damages dropped from $195 million in 2004 to $140 million in 2012, roughly a 30 percent drop.

The court concluded that because physicianswere nowin good supply and lawsuitswere down, “even if there had been a medicalmalpractice crisis… the current data reflect that it has subsided” and caps on damageswere no longer necessary.

That logic is fatally flawed. In fact, the caps had their intended effect. By removing them, the court nowinvites the return of high liability premiums and the resulting health-care crisis.

That prospect is especiallyworrisome for new doctors and the people of Florida who need them. Prior to enactment of the caps, the Legislature discovered that new residency graduates could not always obtain or afford liability insurance, and as a resultwere not staying to practice in Florida.

The court clearly made a mistake in striking down the caps on noneconomic damages, andwe can only hope the Legislature will find away to correct it. The progresswe’ve made in the past decade hangs in the balance.

[A] healthcare liability-insurance crisis … was causing doctors to retire early or leave the state.