Summary of the Governor's Task Force Report

Christopher L. Nuland, Esq.
General Counsel

On February 5, 2003, the Governor's Select Task Force on Healthcare Professional Liability Insurance delivered its final report to Jeb Bush. While the 330 page report contains 60 recommendations, "the "centerpiece and the recommendation that will have the greatest long-term impact on healthcare provider liability insurance rates, and thus eliminate the crisis of availability and affordability of healthcare in Florida, is a $250,000 cap on non-economic damages."

Other Task Force tort reform recommendations would allow for ex parte discussions with a plaintiff's subsequent treating physician, expert witness restrictions (both before and after a suit is filed), liability protection for emergency room doctors, periodic payment of damages, the set-off of collateral awards, and the elimination of joint and several liability. A great deal of emphasis also is placed on mandatory mediation, as well as mandatory binding arbitration.

In addition to tort reform, the Report addresses healthcare quality, physician discipline, and insurance reform. With regard to Healthcare Quality, the Task Force recommends the establishment of a Patient Safety Authority to track adverse incidents and "near misses," as well as to administer statewide electronic medical records and to build a statewide physician mediation ordering system. The Task Force also called for the establishment of two "no-fault" demonstration projects in which contingency fees for attorneys would be forbidden.

The Report places great emphasis on the creation of patient safety plans at every hospital and ambulatory surgery center, and the inclusion of patient safety as a required course in medical schools. However, the recommendation with the greatest direct impact is one which would require physicians to disclose adverse incidents to patients and the publication of hospital "report cards."

With regard to Physician Discipline, the Report proposes an increase in the Board of Medicine's authority to decide standard of care issues and to require the disclosure of a physician's profiling information to patients. In order to expedite the processing of minor and first-time offenses, the Task Force would increase the threshold for mandatory reporting to the National Practitioner Data Bank and for mandatory investigations by the Department of Health.

Finally, the Report addresses Insurance Reform, advocating the retention of NICA, the elimination of bad faith claims by third parties, and the creation of alternative insurance products such as physician self-insurance funds. For insurance companies, several recommendations require additional reporting, but none require mandatory rate reductions or the guaranteed issuance of policies.

The findings of the Governor's Task Force are a major victory for organized medicine, which can use the Report as impartial evidence demonstrating the critical need for substantial tort reform. While a battle may have been won, however, the war will be decided in Tallahassee, where legislators will debate the proposals over the next several weeks.