Plaintiff Bar Responds to Tort Reform

After jamming the courthouse system with thousands of lawsuits, plaintiff attorneys are out of time to get their claims filed before Florida's new tort reform legislation is signed into law by Governor De Santis. After its signing, HB 837 will make it more difficult for Floridians to file lawsuits. In anticipation of this changing climate, it is estimated that Florida plaintiff firms have filed hundreds of lawsuits in anticipation of the bill's signage last week. The bill calls for wide-ranging tort reform and the new revisions in the area of civil litigation arena are significant. Many plaintiff firms are unhappy with the changes and some have even publicly stated that they plan to make the litigation process as difficult as possible for defense attorneys moving forward.

HB 837 significantly modifies the current "bad faith" framework that Florida currently employs, which examines whether insurance companies have acted "unfairly" in processing their policyholders' claims. Under the new law, insurers will not be found to have acted in bad faith if:

  • They pay out the policy limits within 90 days after receiving actual notice of a claim which is accompanied by sufficient evidence to support a limits tender, or
  • They pay the amount demanded by the claimant within 90 days of receiving notice of the claim.

In addition, HB 837 reduces the circumstances under which attorneys may charge a contingency fee multiplier as well as reducing the general negligence statute of limitations from four years to two years. It also proposes a presumption against negligent security liability in some instances.

The bill places severe limitations on the recovery of medical bills in litigation. Now a jury may hear evidence regarding the relationship between the plaintiffs' attorney and any doctor they refer clients to obtain a letter of protection, including any financial exchanges made between the doctor and the referring attorney. In addition, jurors have the right to know the number of referrals as well as the frequency and the amount paid for each. This is a change to the current law, which only requires that defense attorneys disclose payment made to defense experts. The legislature's stated hope is to increase fairness and give the jury all of the information they need to understand and perceive potential biased relationships and how they may impact the case. Unreasonable mark-ups by these doctors are commonplace and finally addressed by the legislature in this bill. Specifically, it calls for:

  • Limits the evidence juries hear regarding the payment of medical bills. Under current law, jurors are permitted to hear both the gross amount for private insurance as well as the net amount for Medicare. After HB 837, the evidence juries hear on this front would only include the amount paid, regardless of what source the payment came from.
  • Plaintiff must disclose whether or not they maintain private health insurance and the amount the plaintiff's insurer is required to pay plus any co-pay.
  • If the plaintiff does not have private health insurance, or used Medicare or Medicaid, the amount is limited to 120% of Medicare's reimbursement rate, or where there is no Medicare rate, 170% of Medicaid's reimbursement rate. This applies to past and future medical treatment.
  • If past medical bills are sold to a third party collection vendor, the new legislation allows for presenting evidence of the bill sold off and the amounts paid by the third party vendor.

The Florida Chamber of Commerce and business advocates supported the bill along with Governor DeSantis in hopes that it would curb the number of frivolous lawsuits that are increasing the cost of doing business in Florida. Although in the long run, this bill may even the playing field for defense attorneys, the plaintiff bar is not going to pave that path with gold. In fact, one plaintiff firm quoted by the Tampa Bay Times informed the world that it had adopted a new "red line policy" and will no longer accept continuances or deadline extensions requested by the defense. Only time will tell how impactful this legislation actually is on the fairness of the legal process in Florida.

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