Another tort tussle in the state House

The amount in damages that injured parties can recover in personal injury or wrongful death lawsuits could grow under a bill moving its way through the Florida House of Representatives.

The Civil Justice & Claims Subcommittee voted 13-4 on Thursday to pass HB 1553 to its next— and only other — remaining scheduled stop, the Judiciary Committee. The four “no” votes were cast by Reps. Kim Berfield, Dean Black, Danny Nix and Paula Stark.

There are 56 lobbyist registrations for the bill, which would crack open a hard-fought, sweeping 2023 tort law (HB 837).

According to a legislative staff analysis at the time, the 2023 law “defined and limited the types of evidence the judge or jury could hear” when it comes to a plaintiff’s medical bills, a driving factor in settlements and jury awards.

But to whom does it apply, and when?

Some trial court judges applying the law have held that the burden to produce evidence—including what a plaintiff’s health insurance would reimburse for care — falls solely on the plaintiff. Other judges have ruled that the burden also falls on the defendant.

Sponsored by Vero Beach Republican Rep. Robbie Brackett, HB 1553 would make clear that “any party” can produce information to establish or rebut future medical costs.

Supporters of HB 1553, including the statewide association representing trial attorneys, insist that the existing law is flawed and needs to be fixed legislatively.

The Florida Justice Reform Institute, insurance, and business lobbyists who oppose HB 1553 argue that the conflicting trial court decisions need to wind their way through the legal process and be decided by state appellate courts and potentially the Florida Supreme Court. They also argue the bill would roll back changes that encouraged plaintiffs to use their health insurance to get the care they need.

The medical expense section in the omnibus 2023 tort bill was driven in large part by the idea that plaintiffs should recover what they themselves have actually paid and not the prices that physicians can “charge.”  Those charges, business and insurance interests successfully argued, are exponentially higher when provided under agreements known as letters of protection.

LOPs are contracts between injured parties, their attorneys, and medical providers under which care is provided free of charge up front. Providers agree to defer payment until after the litigation is settled.

What physicians charge under LOP agreements for providing health care isn’t set by the government, like Medicare or Medicaid, or negotiated, like the reimbursements they agree to accept from the insurance companies that write health care, auto, and workers comp policies and whose members they agree to treat.

Physicians are free to charge what they want, and —the insurance and business interests successfully argued — do. Those allegedly inflated charges inflate plaintiffs’ medical bills, which drive settlement amounts and jury awards.

To address those concerns, the Legislature agreed in 2023 to pass a law that spells out what juries could see regarding medical bills.

For incurred but outstanding bills, a jury can see:

The amount a plaintiff’s commercial health insurance would reimburse for care if they are commercially insured, regardless of whether they used their policy.

An adjusted amount that Medicare or Medicaid would reimburse for the care if the plaintiffs are uninsured or covered by government programs; and

The financial agreements in a LOP and the amounts paid to contracted health care providers, if a LOP was involved.

The Legislature agreed the jury could see similar information about estimated future medical bills as well as “any evidence of reasonable future amounts to be billed to the claimant for medically necessary treatment or services.”

Brackett’s four-page bill would make what appear to be small changes. It amends the 2023 statute so the evidence requirements for both incurred but outstanding and future medical bills apply to “any party” and not just the plaintiff. It also changes the law so the evidence requirements apply when determining or rebutting those medical costs.

Proponents and opponents testified in Committee on Thursday, with the latter arguing that Brackett’s bill would undo the 2023 law and the degree to which it has helped lower costs.

Appearing on behalf of Associated Industries of Florida, certified medical auditor and coder Elin Kunz said that, before the 2023 law, there were no standards for the health care bills shown to juries.

“Health care is unique in that amounts billed is far higher than the amount actually paid. Even hospital websites today acknowledge this reality, stating that charges are rarely the price that patients pay,” she testified. “Without context, bill charges can be misleading and do not reflect the market value.”

She said the law doesn’t “set health care prices,” but provides benchmarks for the costs of care. Medicare, she said, is widely used for that purpose in the industry and can be easily obtained to determine bills for uninsured plaintiffs.

But health insurance reimbursement rates aren’t widely available; they are available only to the policyholder.

“Shifting to a rebuttable standard would make that information harder, if not impossible, for defendants to access,” she told the Committee.

Cypress Truck Lines’ safety director and Jacksonville resident, Matthew Penland, told lawmakers that the 2023 law had an immediate positive effect on how the company handled settlements.

“We’ve invested 100% of this money into safety programs, technology. Our trucks have cameras all the way around. We want to know what our drivers are doing so we can make the roads safer,” he said.

“I would ask each of you today to not move backwards and not support the passage of HB 1553,” he testified.

In his testimony, Panama City trial attorney R. Waylon Thompson, a bill supporter, quoted the 2023 bill sponsor, former state Rep. Tommy Gregory, to the effect that the medical expense provisions applied to both the plaintiff and the defendant, a position he claims is supported by 60% of circuit judges who have ruled on the point (The Florida Justice Reform Institute contests that number.)

And if the intent of the 2023 law was to clarify the determination of medical expenses, he said, “it has failed its basic fundamental principle.”

“It’s your duty to clarify it,” said Thompson, a board-certified trial attorney.

While the legislation has pitted insurance and business interests against trial attorneys, with the latter supporting the changes, Brackett said it’s not what it seems.

He twice told the Committee that he wasn’t sponsoring the bill for Florida trial attorneys.

“We have people who have damages not getting paid to them,” Brackett said.

“I’m not here to fight for the attorneys,” he said. “I’m here to do what’s right for the people of Florida.”

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Christine Sexton reports via Florida Phoenix, part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501 (c) (3) public charity. Florida Phoenix maintains editorial independence. Contact Editor Michael Moline for questions: [email protected].