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Florida Families Finding Tort Reform Unjust

4 comments

Advocates of medical mapractice tort reform usually present it as a "cure" for an out of control civil justice system. However, a few families in Florida are now finding how unjust tort reform really can be to victims of medical malpractice.

Two families in particular are learning about the inequities that tort reform promotes. The controversy centers around Florida’s wrongful death act. As described by local news authorities:

Florida’s Wrongful Death Law passed back in 1990. It gives doctors, nurses, medical staff and hospitals special protection. They cannot be sued for medical negligence if the adult patient has no kids under the age of 25 and no spouse.

Essentially, if a loved one is killed by the negligence of a health care professional, the family of a 26 year old single person has no recourse for seeking justice.

When Troy Bostick, a 26 year old single male died last year, his family sought civil justice for what they believed was medical malpractice. However, they found that tort reform laws had totally precluded any of them from filing suit. "The most you can get is what I got, which is, ‘Mrs. Bostick, we’re sorry for your loss.’ That’s what I got,” Troy’s mother said. Its no surprise that this is not particularly satisfying.

Likewise, Travis Osborn had a similar experience involving the death of his 50 year old deceased, and single, father Mike.

Mike Osborne went in for minor surgery to remove a polyp from his nose. State records show the doctor’s probe went too far and damaged his brain. Because he was divorced when he died and his Travis was over 25 years old, nobody could sue for medical malpractice.

Both families of Troy Bostick and Mike Osborne were surprised by the implications of state tort reform laws, as were many of their friends.

While some Florida legislators are taking time to amend the law, Florida’s Wrongful Death statute is an example of both the errors of tort reform, and the creative marketing of big business. Most people – as the Osborns and Bosticks have found – do not agree with the statute, but most would also probably not recognize this as "tort reform." This is exactly the type of legislation pushed by big business and, for example, the U.S. Chamber of Commerce, who recently labeled Florida as the 41st "most fair" state for tort litigation. That is to say, despite the patently unfair Wrongful Death Act which singles out medical malpractice victims, the U.S. Chamber of Commerce seeks Florida as one of the states that needs the most additional reform.

4 Comments

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  1. james O'Hare RPLU AIC AIS says:
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    Florida is 41st for many reasons, but this does not imply that is because the rules lean against the plaintiffs. A very tough state for physicians.

    There is plenty that the defense has to complain about.Several notorious “hell holes” are in Florida, and considered by most, as a plaintiff friendly state.

    Several insurance companies lost their shirts in Florida, Frontier Insurance comes to mind. Doctors couldn’t find affordable coverage, had few companies to choose from and went bare. This is not good for injured plaintiffs. It is better now after several recent reforms.

    Thousands of doctors are still bare. Insurance should be mandatory. I need it to operate a car, but a doc does not need it to operate. The market is as soft as it is going to get. How about- no insurance, no hospital admissions?

    The way Florida approaches wrongful death focuses on economic loss. By 26, the thought is that you should be making your own way. What is the appropriate cut off age? 36/46/56? The spouse still has rights, so we are talking about “kids” older than 26 !

    I would not expect you to argue for reforms that would address rules that are tilted against the physicians, only those reforms that increase the chances for plaintiff recovery.

    More reform is needed to make it better, not just better for my team.
    regards
    Jim O’Hare RPLU AIC IAS
    VP claims Physicians Ins Co Fl

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    Jim:

    I honestly have a tough time discerning what you are trying to argue there, but I think its mostly because we are seeing things from a completely different point of view.

    For example, I am not going to be concerned if a single Florida insurance company once “lost their shirt.” Businesses in this country “lose their shirt” every day. The fact that one insurance company in a million maybe got weeded out by the market, is not a “crisis” or anything that requires statutory or legislative redress.

    I do not argue for any reforms tilted against physicians, nor for reforms that make it easier for plaintiffs to recover. I simply argue for a fair system. And the only fair system is allowing both sides to present their case, their entire case, to an unbiased jury and ask those uninterested people to make a decision.

    As far as wrongful death in Florida, which is the topic of this post, I realize that Florida has decided that wrongful death laws should only apply to people of a certain age, and much of that is based upon economic recovery. However, the point is that that line of thinking is patently unfair. I challenge you to contact the Bostick’s and the Osbornes and explain to them that they really didn’t lose anything when their loved ones died, and so it only makes sense that they can’t seek civil justice. After you are able to get through that phone call, I’ll continue to have this conversation with you, but only after that because I’m sure your eyes will be opened.

  3. james O'Hare RPLU AIC AIS says:
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    Jon: Thanks for the response.

    Florida is 42nd in the country, according to the chamber of commerce study. An indication of whether a company can / wants do business there. One would be best, 50th worst.

    Notice that AIG, Zurich and CNA are among the big insurance gorilla’s that stay clear of Florida. Why is that? It is not because the rules and regs favor the cariers.

    Caduceus, St Paul, Travelers & unisource, among other writers went belly up along with Frontier, leading to some attempt at reforms. This was a “Lost their shirts” response to help the system.

    At Physicians Ins Co we are the 2nd oldest med mal writer in Florida, going all the way back to 2003. Post reform, some 20 foreign writers have dipped their toes into our waters. A good start.

    I will not take your invitation to call the Bostwicks or Osbornes to tell them they didn’t lose anything. I am not the bad guy here. They lost plenty, as any other grieving family. I do not attempt to minimize their grief. That is not the argument. Grief times money does not equal justice. I would not attempt to measure the value of their family member in terms of dollars.

    Their loss is monumental, but not economically compensable ,if you are over 26 and unmarried.

    How much money is required to equate justice in these cases? How did you figure that number? Cant be done.

    My initial response inartfully attempted to state that there is room for reform on both sides, even though we are 42, 8 from the bottom.
    regards Jim

  4. J. Camps says:
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    I’m one of those whom is left without recourse. Doctor is self-insured, pays a firm for defense in lieu of malpractice. I have no recourse, the condition will exist a lifetime. No one takes my case because of the manner the Dr. has shielded him/ herself. I’m not whole and can’t be made whole. Doctor continues to practice without even a blemish to their record.

    The zinger? Now incompetence can proliferate unchallenged. If I were a notoriously sued Dr elsewhere, Florida would be a haven. I believe this is whom it will and does attract. The position that it attracts more Dr’s to the state is TRUE. Just not the right ones.