FLORIDA SUPREME COURT
Not much has changed in the plaintiff-friendly Florida Supreme Court. Yes, liability-loving Justice James E.C. Perry retired upon reaching mandatory retirement age and was replaced by new Justice C. Alan Lawson. And yes, Justice Lawson has joined Justices Ricky Polston and Charles Canady in resisting with principled dissents the remaining majority’s expansions of liability and disregard for the policymaking role of the legislature.
But remarkably, even a er being replaced, Justice Perry was allowed by Chief Justice Jorge Labarga to continue deciding cases he had heard before his retirement date – a practice that was challenged as contrary to the Florida Constitution. Edward Whelan, president of the Ethics and Public Policy Center, wrote the following for the National Review’s Bench Memos blog:
[I]t’s one thing to decide already-argued cases without the new member. It’s quite another thing to allow the retired justice to displace the new member in those cases. This elementary distinction seems to have escaped the Florida Supreme Court.
…To be sure, there may be a small number of cases that would have to be re-argued because Lawson’s participation would break a tie among the six remaining justices who heard oral argument. But those are precisely the cases in which having Perry displace Lawson is most objectionable. And any supposed ef – ciency gains would be offset by the uncertainty resulting from a ruling in which the decisive vote is cast by someone who has taken part illegally.
The practice was curtailed after Florida House Speaker Richard Corcoran threatened to file a petition challenging the court’s “eighth justice,” but the remaining 4-3 majority continues to wield power with still rather predictable results.
In 2017 the high court issued a series of rulings in medical liability cases that are detrimental to patients and healthcare providers, while also making it more di cult both to resolve disputes without litigation and identify fraudulent or in ated medical expense claims. Additionally, Florida attorneys are bracing for the court’s anticipated rejection of a more exacting standard for expert testimony used in all federal and most state courts.
PATIENT SAFETY DOWN, ATTORNEYS’ FEES & DAMAGES UP
In four medical liability cases, the Florida Supreme Court has undercut patient safety, protected lawyers’ fees, allowed higher damage awards, and invalidated a law intended to reduce litigation.
In January Florida’s high court ruled that information about adverse medical events that healthcare providers voluntarily share with patient safety organizations can be obtained by plaintiffs’ lawyers and used in litigation. The court’s 5-2 decision in Charles v. Southern Baptist Hospital of Florida found that a 2004 amendment to the Florida Constitution that provides patients with a right to access adverse incident reports e ectively supersedes a federal law providing that these reports are confidential.
This ruling should concern doctors and patients alike. It discourages doctors from sharing information the broader medical community can use to limit mistakes and increase the quality of care. In its May petition to the U.S. Supreme Court, Southern Baptist Hospital emphatically noted its concern that health-care providers in Florida face “the dilemma of eschewing valuable patient-safety activities altogether or creating work product that may be used against them in litigation.” Groups such as the American Medical Association and Florida Medical Association, American Hospital Association and the Patient Safety Organization of Florida also urged review by the high court but, quite disappointingly, the defendant’s petition for certiorari was denied in October 2017.
On the same day it undercut patient safety, the Florida Supreme Court sided with plaintiffs’ lawyers over their medical liability clients when it comes to getting paid. In Searcy, Denney, Scarola, Barnhart & Shipley v. Florida, the court found that the legislature could not maximize recoveries for injured patients by limiting attorney fees in malpractice claims against public hospitals. In its 4-3 decision the court ruled that a law rm was constitutionally entitled to take 25% of a client’s $15 million recovery. It did so even though the legislature waived the state’s sovereign immunity and approved the large recovery, but with the condition that no more than $100,000 of the award go toward attorneys’ fees. A mid-level appellate court, which Florida’s Supreme Court reversed, found that to allow otherwise would violate the separation of powers, rewrite legislative enactments, and be contrary to earlier decisions of the state high court. Yet the usual 4-3 majority allowed the lawyers to take their hefty cut of funds that the legislature specifically approved for a child’s future medical care.
Then, this past summer, Florida’s high court invalidated the state’s reasonable limit on noneconomic damage awards in medical liability cases. In another 4-3 decision in North Broward Hospital District v. Kalitan, the court found that the legislature lacked a legitimate state objective to constrain such awards, which are often the largest part of damages. The decision was not a surprise. Three years earlier the court invalidated the cap when applied in wrongful death cases involving multiple claimants in Estate of McCall v. United States. As predicted in last year’s Judicial Hellholes report, the court extended this reasoning in Kalitan, allowing unlimited awards in all cases for unquanti able losses, such as pain and su ering, inconvenience or lost enjoyment of life.
In Kalitan and McCall the court hubristically substituted its own policy judgment for that of the state legislature and governor, finding the medical malpractice insurance crisis that originally drove the reform statute never existed and, even if it did, it was over. In so doing, the court rejected the findings of a bipartisan governor’s task force, numerous hearings and an extensive legislative record documenting the impact of excessive liability on medical malpractice insurance rates and access to quality healthcare in Florida. By way of contrast, the U.S. Court of Appeals for the Eleventh Circuit upheld the same law under the U.S. Constitution.
Dissenting in Kalitan, Justice Polston, joined by Justices Canady and Lawson, expressed concern about the majority’s eagerness to legislate from the bench. “It is the Legislature, not this Court, that is entitled to make laws as a matter of policy based on the facts it nds,” he wrote. His dissent properly recognized that it is “the Legislature’s task to decide whether a medical malpractice crisis exists, whether a medical malpractice crisis has abated, and whether the Florida Statutes should be amended accordingly.”
A Florida civil justice advocate said the court “crowned itself fact-finder and policymaker, rejecting all of the Legislature’s work and its role under [Florida’s] system of government.”
Finally, in a November encore, the Florida Supreme Court invalidated a state law enacted to place plaintiffs and defendants on level ground when initially evaluating the merits of medical malpractice allegations and thus encourage settlement of valid claims without the need for litigation.
The law, enacted in 2011, allowed a healthcare provider’s attorney to informally speak with a plaintiff’s treating physicians about the medical condition at issue in the lawsuit before a lawsuit is filed. Since bringing a medical malpractice lawsuit waives privacy rights with respect to the medical information at issue in the claim, a mid-level appellate court upheld the law, rejecting plaintiff counsel’s seemingly ridiculous contention that the law intruded on a patient’s privacy.
But you guessed it, in Weaver v. Myers Florida’s high court majority reversed the lower court on wholly specula- tive grounds, suggesting that defense counsel might ask doctors to share medical information beyond the scope of the speci c malpractice allegations – even though the statute does not authorize them to do so. is decision was not supported by Florida’s Constitution or prior court decisions. Rather, as the three dissenting justices recognized, it was yet another instance of the majority’s “unwarranted interference with the Legislature’s authority.”
INVALIDATING ARBITRATION AGREEMENTS
In addition to undermining amicable settlements prior to litigation, Florida’s Supreme Court also has signi cantly curtailed the ability of patients and doctors to avoid litigation by way of relatively inexpensive and quick resolutions through arbitration.
The court twice ruled, in December 2016 and then again in May 2017, that an agreement to arbitrate any dispute arising out of medical care entered between a doctor and patient is void and violates public policy unless the agreement mirrors provisions included in Florida’s Medical Malpractice Act. One such provision requires healthcare providers to concede liability and arbitrate only on damages. A hospital has asked the U.S. Supreme Court to review the most recent decision, arguing that these rulings violate the Federal Arbitration Act, which promotes arbitration by generally requiring states to honor and enforce such agreements. The hospital notes that state law compelling it to surrender its defenses in order to arbitrate a dispute is incompatible with the federal law. The hospital’s petition for certiorari is pending.
Those two decisions came on the heels of another 2016 ruling noted in last year’s Judicial Hellholes report, in which the Florida Supreme Court ruled nursing home residents cannot be bound by an arbitration agreement when it is signed by a family member – even when that same family member subsequently files a lawsuit on behalf of the estate. Such anti-arbitration rulings carelessly enrich Florida’s litigation industry at the expense of those seeking medical and nursing home care in this steadily aging state.
ENABLING FRAUDULENT AND INFLATED CLAIMS
In years past the Judicial Hellholes report has documented the shady referral relationships between some Florida personal injury lawyers and the medical clinics to which the lawyers refer their clients. The system leads to in ated medical bills and, as a result, inflated judgments and settlements. This year a Florida Supreme Court decision may make the situation worse, allowing attorneys to hide such arrangements during litigation.
In Worley v. Central Florida Young Men’s Christian Association, Inc. the plaintiff fell in a YMCA parking lot, went to the hospital to be checked out, and had a follow up appointment a week later. She then hired an attorney and was sent to an orthopedic center, which referred her to another doctor who performed a routine procedure that should have cost around $6,000. Yet her lawsuit claimed over $66,000 in damages a er the debt was sold multiple times, with the cost in ated a er each additional transaction. When lawyers for the YMCA attempted to investigate the legitimacy of the charges, Worley’s lawyers instructed her not to answer any questions about whether they referred her to a particular doctor.
By way of background, some plaintiffs’ lawyers refer clients to certain doctors willing to sign “letters of protection.” A letter of protection promises the doctor will not charge the patient a er providing care and instead wait for payment from the anticipated settlement of a lawsuit. Because payment does not come through the patient’s insurance, there is no applicable schedule of fees and the clinics can charge rates that no one would ordinarily pay. The clinic can then sell the account receivable and letter of protection to another entity that can also sell the debt, and so on.
In April 2017 the high court’s usual 4-3 majority effectively protected this letters-of-protection racket, allowing assertions of attorney-client privilege to hide referral relationships in personal injury cases. The dissent logically argued that the number and frequency of referrals between a lawyer and a medical provider are not privileged because the referrals are for the purpose of receiving medical care, not legal services.
EXPERT TESTIMONY STANDARDS ON THE LINE
While federal courts and an overwhelming majority of other states have adopted the more exacting Daubert standard for expert testimony, Florida’s high court is not raising the bar without a ght. In action many saw as long overdue, the Florida Legislature nally passed a reform law in 2013, e ectively deputizing judges as gatekeepers to ensure ahead of time that expert testimony presented to jurors is indeed reliable.
In February 2017, however, the court handed trial lawyers a major victory by refusing to adopt Daubert procedurally, expressing “grave” but unspecified “constitutional concerns.” Despite its fair and just application in most of the nation’s courts, Florida’s plaintiff-friendly justices posited that having trial judges carefully review proposed expert testimony is somehow impermissible in Florida. While refusing to adopt the Daubert approach, the court also declined to adopt as a rule of procedure another statute that would have required an expert testifying on the applicable standard of care in a medical liability lawsuit to be in the same specialty as the doctor named as a defendant.
Now, having declined to adopt the new standard as a rule of procedure, the Florida Supreme Court is poised to end what is left of Daubert. In Delisle v. Crane Co., it will decide whether Daubert applies in a case in which the plaintiff’s experts testified that he developed mesothelioma due to a combination of low-dose exposures to asbestos fibers in sheet gaskets (while working at a paper company) and the lters of Kent cigarettes (while smoking), among other sources. A Broward County jury returned an $8 million verdict. A mid-level appellate court, however, overturned the verdict, finding two of the plaintiff’s expert witnesses failed to meet the Daubert standard. It ordered a new trial for the cigarette maker and entered a verdict in favor of the gasket maker. The Florida Supreme Court, which has already darkened Sunshine State skies for tobacco defendants with various plaintiff-friendly rulings, will now use this asbestos-cigarette case to make a substantive determination on whether trial courts may apply the Daubert approach in Florida.