Florida Bar Journal

Neither Goose Nor Gander: Why Tort Reform Fails All

Illustration by Barbara Kelley

In 2006, an egregious misdiagnosis by emergency room doctors deprived Allan Navarro of a normal life.^[1] Navarro was rushed to the emergency room at the University Community Hospital in Tampa with textbook stroke symptoms; he even communicated a family history of strokes to providers at the hospital.^[2] Without doing an independent examination, the emergency room doctor relied on the evaluation by an unlicensed physician’s assistant who diagnosed Navarro with a sinus infection and sent him home with a prescription for painkillers.^[3] Less than 24 hours later, Navarro returned to the same emergency room, where a proper computed tomography, or CT scan, showed that Navarro had suffered a stroke.^[4] He underwent emergency surgery to relieve swelling in his brain and spent nearly three months in a coma.^[5] Once a professional basketball player in the Philippines, Navarro became confined to a wheelchair and risked suffocation every time he ate.^[6] A Florida jury awarded him and his family $116.7 million to cover the around-the-clock care and specialized medical equipment he needed, as well as $100.1 million in punitive damages against the hospital, the latter of which the family vowed to donate entirely to charity to help people with spinal cord and brain injuries.^[7]

Whether you subscribe to the corrective justice^[8] or the economic tort theory,^[9] tort law is the law of making private wrongs right. Tort law and the civil justice system are what empowered the Navarro family to hold providers accountable for their wrongful actions. Tort law enables trial lawyers to make the world a better, safer place. Through the civil justice system, car manufacturers have been stopped from selling defective vehicles that explode,^[10] Big Tobacco has been held accountable for intentionally promoting lethal and addictive products,^[11] and large corporations have been prohibited from harming unsuspecting families with deadly toxins such as asbestos.^[12] Tort law and the civil justice system empower the courts to level the playing field between injured victims and corporations and/or their insurers in order to hold wrongdoers accountable for their actions. The jurors that hear these cases are its foundation.

Until the mid-1970s, tort law developed through the common law tradition.^[13] Since then, industry actors and interest groups have campaigned for and introduced legislation intended to reform and remedy the perceived deficiencies of the tort system through tort reform.

Tort reform, broadly, is legislative intervention that changes the common law rules of tort^[14] and allegedly advocates for increased fairness, predictability, and efficiency in America’s civil justice system.^[15] It has variations depending on which area of tort law it affects, with medical malpractice tort law arguably being the most heavily targeted area for reform.^[16] In the medical malpractice space, tort reform aims to reduce the number of liability payouts to injured patients from physicians and health-care facilities, reducing medical malpractice insurance premiums, thereby keeping good doctors in Florida.

While the topic itself has proven polarizing, most rational minds agree: Some kind of reform is needed as patients suffer serious consequences from the diminishing quality of and access to affordable health care in an already overburdened health-care system.^[17] Despite its purported intentions and ideals, the Florida Legislature’s four decades’ worth of tort reform and the ongoing medicolegal climate in Florida have not equitably improved medical care^[18] or malpractice litigation.^[19] Instead, there has been a steep decline in the quality of health care, a concerning lack of access to care for patients, a clear curtailment of compensation for injured victims, a dramatic increase in insurance premiums, and an alarming decrease in health-care coverage to more than one million now-uninsured people.^[20]

Before determining what reforms may actually improve Florida’s medicolegal climate, it is fundamental to grasp the proposed goals of the current tort reform system, the methods by which those goals are pursued, and the reasons why over 40 years of medical malpractice tort reform have missed the mark.

The Proposed Goal of Tort Reform

Florida ushered in medical malpractice tort reform in the 1970s, at the beginning of what has been claimed as the first “medical malpractice crisis”^[21]: a period during which medical malpractice insurance premiums increased dramatically and resulted in an increase in medical care costs for most patients and the unavailability of malpractice insurance for some physicians.^[22] To respond to claims of a “medical malpractice crisis,” the Florida Legislature established the Academic Task Force for Review of the Insurance and Tort Systems (the task force) in 1986.^[23] The Task Force declared that the substantial rise in medical malpractice premiums resulted from a sustained increase in the total amount of malpractice claims paid.^[24]

Quality physicians and health care are unquestionably essential. Yet, the consequences of rising malpractice premiums can threaten the quality of and access to health care. Indeed, higher or prohibitive malpractice premiums may influence physicians’ decisions regarding not only their practice specialty and location, but also whether to enter or exit the profession entirely. As such, when physicians are forced to make strategic professional decisions based on capital, it unfortunately can lead to underserved patient populations in certain specialties or geographic areas.^[25] Furthermore, liability fears and rising malpractice premiums may motivate the frowned-upon “defensive medicine” practice: performing more tests and procedures than necessary to reduce exposure to lawsuits, or refusing to perform more complex, risky procedures altogether.^[26] Fear of litigation, taken together with rising insurance premiums, has resulted in the prevailing response to claims of medical error: Deny that any mistake has happened and vigorously defend against any claim.^[27]

On a large scale, tort reform was broadcast to save the everyday American time and money, to preserve precious judicial resources, and to kick out frivolous lawsuits. In the Florida medical malpractice context specifically, tort reform was touted as the solution after the legislature initially found the following:

1) the increased medical malpractice insurance premiums resulted “in increased medical care costs for most patients and ‘functional unavailability’ of malpractice insurance for some physicians”;

2) the primary cause of these increased premiums was the “the substantial increase in loss payments to claimants caused by tremendous increases in the amounts of paid claims”;

3) the increased costs of malpractice claims needed to be controlled “in the interests of the public need for quality medical services”; and

4) the increased costs of malpractice claims could be controlled “by requiring early determination of the merit of claims, by providing for early arbitration of claims, thereby reducing delay and attorney fees, and by imposing reasonable limitations on damages, while preserving the right of either party to have its case heard by a jury.”^[28]

As a result, the goal of tort reform in Florida became to lessen insurance premiums by limiting both the filing of lawsuits and money recovered by injured victims.^[29] The legislature’s methods to accomplish this goal span decades and numerous statutory schemes, but a few highlights that will be discussed are the statutory presuit process codified in F.S. §766.203,^[30] the Florida Birth-Related Neurological Injury Compensation Association (NICA) codified in §766.303,^[31] sovereign immunity exceptions, and recovery limitations codified in §768.21.^[32]

Florida’s Tort Reform Methods

Florida’s first method for limiting medical malpractice lawsuits is its statutory presuit process.^[33] The presuit process is an unregulated investigation phase where both parties to a potential lawsuit are required to investigate the validity of a claim before being allowed to file a lawsuit. The statute explicitly defines “investigation” as the plaintiff’s “attorney [having] reviewed the case against each and every potential defendant and . . . consulted with a medical expert and . . . obtained a written opinion from said expert.”^[34] Once a claimant has completed their investigation, they must notify each prospective defendant of their intent to sue at least 90 days before filing a complaint with the court.^[35] During the 90-day period, a potential defendant or defendant’s insurer should investigate to determine the defendant’s liability.^[36] By the end of the 90-day period, the prospective defendant or defendant’s insurer must provide the claimant with a response: 1) Rejecting the claim; 2) making a settlement offer; or 3) admitting to liability and offering to arbitrate as to damages.^[37] A defendant or defendant’s insurer can also outright ignore plaintiff’s claim, and the choice to ignore the plaintiff is treated simply as a denial of the claim.^[38] A plaintiff that fails to comply with these presuit processes cannot file his or her lawsuit,^[39] while a defendant that fails to comply may waive defenses.^[40]

Any discovery, evidence, or statement generated during the presuit screening process is not discoverable or admissible in any civil action that may be subsequently filed.^[41] Therefore, if there is no resolution after the 90-day presuit period expires and a plaintiff is forced to file a lawsuit, the parties must use significant time, costs, and resources to essentially relitigate their case.^[42] But if defendants meaningfully participate in the presuit process, they can avoid cumbersome (re)litigation. Indeed, Florida’s statutory presuit scheme is intended to weed out cases that may not have merit and quickly resolve meritorious cases that have huge exposure risks for liability carriers.^[43] For example, entering an arbitration agreement in potentially meritorious cases would limit plaintiff’s recovery while also satisfying the purported goal of tort reform — early determination of a claim’s merits. In truth, arbitration is the most likely method to accomplish the goals of tort reform. It determines when a physician has acted in error, allows an injured victim to recover, and curbs the ever-lamented “nuclear verdict” by resolving a case without the need for court intervention. Unfortunately, however, presuit arbitration is a rarity.

In fact, there is no evidence whatsoever that suggests defendants regularly use the presuit process for its intended purpose.^[44] There is no way to accurately report how many meritless suits it weeds out because the presuit process is not monitored by the courts.^[45] Further, even though parties are required to participate in presuit discovery, statements made during this period are not sworn or under oath and are not admissible in the lawsuit. Therefore, a witness falsifying testimony cannot be impeached with the prior inconsistent statements.^[46] Additionally, physicians fear an admission of liability that comes with presuit arbitration not because they do not believe in accountability,^[47] but because many cannot afford an increase in their premiums in an already extreme market.^[48] Thus, while the goals of Florida’s statutory presuit scheme are honorable in theory, the reality is that plaintiffs and defendants alike spend at least 90 days wasting time, money, and resources just to start from scratch once a lawsuit is filed.

Florida’s second method of reform aimed at limiting injured victims’ access to courts and recovery of damages came with the Florida Legislature’s Florida Birth-Related Neurological Injury Compensation Plan (NICA plan) in 1988. NICA applies to newborns who have experienced oxygen deprivation or mechanical injury during birth, resulting in permanent and significant mental or physical impairment.^[49] Babies that satisfy the criteria of a birth-related neurologically injured infant may receive compensation for medically necessary and reasonable care, including long-term medical care, transportation, special equipment, and other services for the lifetime of the child and $100,000 to the infant’s parents.^[50] If the infant dies due to medical negligence, the parents may receive $50,000 as a death benefit for the infant.^[51]

The legislature created NICA to provide limited recovery, irrespective of fault, for infants who have sustained a birth-related neurological injury.^[52] NICA was created to prevent birth-related injury lawsuits from being filed, as well as to keep obstetrician-gynecologists in Florida despite the rising medical malpractice insurance premiums and jury awards.^[53] The statute makes clear that the NICA plan is the exclusive remedy for negligently and severely injured babies, regardless of the degree and extent of the malpractice and injuries.^[54] This means that if an infant suffers a NICA-qualifying injury during birth and the at-fault physician is a NICA participant, the family must either enroll in the NICA plan or foot the bill for all medical, or funeral, expenses. The family will be barred from filing a lawsuit to recover any type of damages against a participating NICA physician.

NICA was sold as a solution to lawsuits because injured victims — the infants and families alike — would be taken care of by the plan rather than needing to pursue recovery via a lawsuit. However, in recent years, injured babies and their families have essentially been deprived of adequate recovery under the law due to systematic mismanagement of the NICA plan. While affected families were silently and privately suffering from this mismanagement for years, a state audit released in 2021 finally publicly exposed the severity of the situation.^[55] As the audit found, “NICA has amassed nearly $1.5 billion in assets while sometimes arbitrarily denying or slow-walking care to severely brain-damaged children.”^[56] The audit further found that NICA’s process for determining coverage is inadequate because NICA administrators — not physicians — were simply googling treatments to decide whether they were “medically necessary” and therefore covered under NICA.^[57] If that was not bad enough, the audit also found that NICA failed to: 1) properly document claims denials, 2) record complaints from families, and 3) record if or how the complaint was resolved.^[58] The audit concluded that NICA’s claims processes placed barriers, burdens, and time restrictions on participant families seeking reimbursement for actual expenses, among a plethora of other disturbing findings.^[59]

Florida’s third method of reform is the limitation of recovery against state-run hospitals. Sovereign immunity is a type of legal protection that prevents the government from being sued for tort claims resulting from the negligence of government employees acting in the scope of said employment.^[60] Florida relaxes this protection, but nevertheless caps the damages that can be recovered against a government entity at $200,000 per person and $300,000 per incident that affects more than one person.^[61] This arbitrary cap applies regardless of the severity or gravity of the injury, leaving victims and their families to pay for and live with the negligence of state-run health-care facilities. The state or its agencies may agree to excess judgments within the limits of their insurance, however there is no incentive or requirement to do so.^[62] An injured victim seeking recovery of a judgment above the statutory limits may take on the process of pursuing a claims bill for monetary recovery above the caps.^[63] However, the process is even more arduous than a traditional lawsuit^[64] and, in these authors’ experience, has taken over 15 years for the victim to see the benefits, if at all, even with support from the defendant.^[65] Such damage caps reduce the “deterrent effect of the civil justice system, protect wrongdoers who cause harm, and transgress the most basic rights associated with civil justice.”^[66]

Florida’s fourth method of reform is codified in F.S. §768.21, which limits how much an injured party may recover and denies certain family members of deceased victims an opportunity to recover damages if the death resulted from medical malpractice.^[67] In cases of medical malpractice, the law allows only the following relatives of a decedent to pursue damages for pain and suffering: 1) Spouses, 2) minor children, and 3) parents of minor children.^[68] While families can bring suit for damages such as funeral costs, most attorneys cannot accept such cases because malpractice suits are too costly to litigate without both economic damages and noneconomic damages such as pain and suffering. The effect is that the current law prevents parents and adult children from pursuing lawsuits if their adult child or unmarried parent dies due to medical malpractice. As such, this statute has been referred to as Florida’s “free kill” law. It essentially renders adults who are unmarried or have no minor children worthless and allows their wrongful death by medical negligence to go without repercussions or recovery.^[69] In 2023, victims of Florida’s free kill were given a bait-and-switch that promised repeal of the law in exchange for reenactment of antiquated law the Florida Supreme Court has already declared arbitrary and unconstitutional: caps on noneconomic damages.^[70]

Florida’s fifth method of reform placed severe caps on noneconomic damages in medical malpractice cases,^[71] and was struck down by the Florida Supreme Court.^[72] The caps were premised on the task force’s conclusion that “actual and potential jury awards of noneconomic damages (such as pain and suffering) are a key factor (perhaps the most important factor) behind the lack of available and affordable medical malpractice insurance in Florida.”^[73] In 2014, however, the Florida Supreme Court held in Estate of McCall v. United States, 134 So. 3d 894, 910 (Fla. 2014), that these caps violated the equal protection clause of the Florida Constitution because they failed the rational basis test, noting that “[r]eports have failed to establish a direct correlation between damages caps and reduced malpractice premiums.”

In fact, the court’s review of the statute’s legislative history made the court question whether a so-called crisis ever existed.^[74] Specifically, the court found that in the midst of the purported crisis, the number of physicians in Florida was actually increasing, not decreasing.^[75] The court also discovered that as far back as 2003, “the deputy director of the Florida Office of Insurance Regulation testified he had found no evidence to suggest that there had been a large increase in the number of frivolous lawsuits filed in Florida, nor was there any evidence of excessive jury verdicts in the prior three years.”^[76] Additionally, the president of First Professionals Insurance Company testified during a Senate Judiciary Committee meeting that “a $500,000 cap on noneconomic damages would achieve ‘virtually nothing’ with regard to stabilizing medical malpractice insurance rates.”^[77] Finally, in each of the “malpractice crises” in the 1970s and 1980s, as well as the early 2000s, critics of tort reform noted that there never actually were crises, but rather “nothing more than the underwriting cycle of the insurance industry . . ..  The tort reform changes in the 1980s had nothing to do with the flattening of rates. The flattening was caused instead by modulations in the insurance cycle throughout the country.”^[78] The task force reached a similar conclusion in its investigation in Florida, noting, “[t]hese cycles have always occurred in the insurance industry, particularly in medical malpractice insurance.”^[79]

As a result, once the court determined that this limitation on damages was not meeting its intended goal and there was not a rational relationship between damage caps and reduced malpractice insurance premiums, the court struck down the caps and ruled that damages caps violate the equal protection clause of the Florida Constitution.^[80] Yet despite our state’s highest court finding that the medical malpractice insurance crisis was tenuous at best and nonexistent at worst, the Florida Legislature has not repealed any of the other above-mentioned limitations on the judicial remedies for victims of medical malpractice. In fact, the legislature is doubling down on medical malpractice tort reform and is now expanding similarly misguided tort reform efforts in other areas of the law.^[81]

Have Insurance Premiums Decreased?

Constituents have begun wondering, much like the Florida Supreme Court did in 2014, whether such restrictive legislation has served its purpose. Floridians have been told for decades that limiting recovery for some is worth the sacrifice if society benefits as a whole. The goose may suffer, but the gander surely must benefit from over 40 years’ worth of medical malpractice tort reform restricting the recovery rights of injured victims. It begs the question: Have Florida’s tort reform methods actually lessened medical malpractice insurance premiums for physicians? The answer to that question is a resounding, “no.”^[82]

Taken by the numbers: Premiums for doctors in Florida continue to be among the highest nationwide.^[83] Florida is in its strictest era of reform, yet its premiums are the highest in comparison to New York, California, Pennsylvania, Illinois, New Jersey, Texas, Georgia, Maryland, and Massachusetts.^[84] In fact, while tort reform measures have been implemented nationwide since the 1970s for the stated purpose of lessening medical malpractice insurance premiums for physicians, the actual data shows there has been no overall decrease in such premiums whatsoever.^[85]

Still, the legislature continues to push tort reform that benefits insurance companies while acutely harming Floridians.^[86] Ironically, the states that have begun enacting stricter reforms since the alleged “crisis” began are the ones who are now facing the highest premiums,^[87] highest commission to direct written premium ratios,^[88] and highest underwriting profitability metrics for insurers.^[89] Great for insurance companies; bad for doctors, patients, and Floridians who foot the bill.

The premium problem is probably being made worse by a recent movement that encourages doctors to “go bare” — physicians in Florida are being encouraged to not carry any liability insurance,^[90] further concentrating the insurance market and causing premiums to increase even more.^[91] Despite programs such as NICA being put in place to reduce premiums for obstetricians, medical malpractice insurance premiums for obstetricians remain the highest physician premiums in Florida.^[92] Whether these rates are due to the high costs associated with birth injury cases in general or if NICA has further concentrated the obstetrician premium rates has yet to be evaluated but could provide some insight as to why obstetricians continue to bear the highest rates in Florida. Physicians are encouraged to “go bare” not to improve health care, create accountability, or reduce insurance premiums, but rather to avoid lawsuits or at the very least attempt to cap the amount an injured victim can recover after the physician commits malpractice.^[93] To go bare, a doctor pledges that he or she has credit up to $250,000 in order to satisfy a judgment against him or her instead of carrying traditional malpractice insurance.^[94] No proof or separate account is required, just a promise based on the physician’s word; and while a doctor may certify having $250,000 to satisfy a judgment, the doctor’s individual net worth and savings are still at risk if the judgment entered is beyond $250,000 and the physician has chosen to go bare, because the physician has no insurance.

Has Health Care Improved in Florida?

Surely if premiums have not gone down or stabilized, at least Florida’s tort reform methods have improved access to good doctors and health-care facilities in Florida, right? The answer to this question is another resounding, “no.”

The number of medical malpractice claims filed each year has stayed consistent despite over 40 years of tort reform. The Office of Insurance Regulation (OIR), which prepares an annual report about the medical malpractice insurance market in Florida,^[95] reported that in 2023, Florida medical malpractice insurers reported 3,026 closed claims in Florida, up from 2,680 in 2022.^[96]

In addition, the reporting data indicates that death is the leading category for closed medical malpractice claims; specifically, death cases accounted for 33.2% of all the medical malpractice claims closed in 2022.^[97] Deafness, loss of limb(s), loss of eye(s), paraplegia, blindness, quadriplegia, and brain damage collectively constituted another 23.7% of claims.^[98] As such, roughly 60% of injured patients for which suits were brought either died or experienced severe, life-changing, and permanent injury due to negligence.^[99]

The problem is only worsened by the lack of accountability for particularly dangerous physicians in Florida who not only put patients at risk but also further burden the efforts of ethical providers who must foot the bill for these “repeat offenders.” A study published in the New England Journal of Medicine found that doctors who are sued once for malpractice are more likely to be sued again.^[100] The study found that 1% of doctors accounted for 32% of all malpractice claims.^[101] Indeed, a 2023 study comparing cost, accessibility, and outcome of health care ranked Florida as the eighth worst state for health care in the nation.^[102] The problem is so well-known that predatory physicians are opening shop in Florida because there is so little oversight, especially in the pain management and plastic surgery spaces.^[103] These statistics and Florida’s shielding of “repeat offenders” support just one sad conclusion: Floridians are suffering due to the legislature’s decades of misguided tort reform methods.

Wrong Diagnosis, Wrong Treatment

The legislature’s decades-long decision to limit access to the courts and to limit what injured patients can recover has not successfully lessened insurance premiums. Instead, it has adopted an unfair and incorrect diagnosis: Plaintiffs are the problem. For nearly 40 years, individual plaintiffs have been the arbitrary scapegoat for much larger systemic failures across goliath industries: the health-care industry, the insurance industry, the legal industry, and the governmental overreach permeating them all. To blame injured victims of medical malpractice for powers out of their control, place hurdles at each possible solution, and then cap their monetary recovery for malpractice during medically necessary treatment is more than a misguided solution: it is unfounded and unjustified.

Proponents of such tort reform cite to multimillion dollar verdicts against hospitals as the reason why we need tort reform the same way tort reform’s critics cite to Dr. Kavorkian and serial killer nurses as the reason why we need lawsuits. These arguments highlight not only the flaws of our societal understanding of medical malpractice, but also the flaws in the laws that attempt to regulate medical malpractice cases; they target the extreme cases while failing to address the majority of cases and the flaws within our medicolegal system altogether.

The reality is not that doctors intentionally harm patients, nor is it that patients are faking their injuries for money. The reality is that mistakes happen. Physicians are human. Patients are human. To err is human.^[104] No one wakes up hoping to suffer medical malpractice and life-changing injuries when they head to a doctor’s appointment. Indeed, many articles on tort reform continue to call attention to the fact that many people who have suffered medical malpractice never actually sue.^[105] Of patients surveyed who chose to sue their doctor or a health-care facility, the four predominant reasons for so choosing were: 1) wanting to prevent a similar bad incident from happening again; 2) a need for an explanation as to how and why an injury happened; 3) financial compensation to cover their medical expenses as a result of the malpractice; and 4) accountability.^[106]

Surveys of plaintiffs in medical malpractice cases highlight what has been known to the medical community for a long time: Cases are filed overwhelmingly as a result of a breakdown in the relationship between patient and physician, leading to poor communication.^[107] This sentiment makes sense given the modern trend in the doctor-patient relationship noted above: Deny and vigorously defend rather than discuss medical error or complications with the patient.

Tort reform has not reduced premiums, increased patient safety, or attracted higher quality physicians to Florida. Yet, “the problem stubbornly persists despite past attempts to address it in large part because the treatment to date has targeted the wrong diagnosis.”^[108]

There Must Be a Better Way

So what can be done? The first step is to recognize that no one actor is responsible for the problem. Plaintiffs’ attorneys, defense attorneys, insurance companies, large health-care corporations, federal and state governments, patients, and physicians — just to name a few — all have a dog in this fight.

The second step is to do what the Florida Supreme Court did in McCall: Use the rational-basis test to determine whether any of the current tort reform laws in Florida serve their purported function.^[109] The rational-basis test requires a court “to determine (1) whether the challenged statute serves a legitimate governmental purpose and (2) whether it was reasonable for the [l]egislature to believe that the challenged classification would promote that purpose.”^[110] Tort reform was built on the initial report of the task force in Florida, and that report itself questioned whether the methods of tort reform would promote its intended purpose. Now, after over 40 years’ worth of tort reform measures, the data collected, and the testimony of the hardships faced by medical malpractice victims and their families indicate the answer is, “no.”^[111]

The third step, after recognizing tort reform’s failings in its intended goals, is to note what tort reform does successfully. Tort reform is and always has been an effective cost shifting mechanism that pushes the high and rising cost of medical errors^[112] away from insurance companies and hospitals and onto physicians, patients, employers, private health insurers, public benefits programs, and the legal industry.^[113]

The fourth step is to correct the diagnosis and begin a new treatment plan if the goal truly is to decrease insurance premiums and increase access to quality physicians and health care in Florida. Florida is not alone in this struggle. For years, states across the U.S. have tried to stop the bleeding based on the same misguided “plaintiffs are the problem” diagnosis of the Florida Legislature. The proper treatment plan may have been identified by those states, or private actors, that have reached a different diagnosis — for example, the “Michigan Model,” which targets the communication-breakdown diagnosis discussed previously.^[114]

The Michigan Model came about after it passed its own tort reform in the 1990s, including caps on what an injured patient can recover and a mandatory presuit screening process, to no avail.^[115] Like Florida, no hospital or insurance companies were systematically using this presuit period to investigate and resolve cases.^[116] Seeking to determine what would happen if the presuit period were used for its intended purposes — rather than denying and delaying potential claims — the University of Michigan Health System created and tested the Michigan Model within its own facilities.^[117] The University of Michigan Health System experimented with using the presuit period to allow the complaining patient to meet with the physician who provided the allegedly negligent care at their facilities, to discuss the care, and to see what remedy the parties could agree on.^[118]

The Michigan Model is different in that it seeks to prevent lawsuits before they are filed through increased claims reporting and transparency. This is achieved by 1) allowing physicians and patients to communicate openly in the event of an unforeseen medical complication or error; and 2) to immediately use those discussions to improve patient safety.^[119] To quote the program itself, the goal of the Michigan Model is to “apologize and learn when we’re wrong, explain and vigorously defend when we’re right, and view court as a last resort.”^[120] By allowing physicians to discuss mistakes — or explain why something was not a mistake but rather an unfortunate outcome not due to medical error — the Michigan Model addresses the No. 1 contributor to malpractice cases at its source: the breakdown of physician-patient communication.

“In the dynamic created, the decision to litigate becomes a mutual one and litigation is relegated more and more frequently to the role it was meant to play: a last resort for resolving intransigent disputes.”^[121] In most cases, as the surveys discussed above have found, “patients are actually seeking accountability, answers, and assurances that the same complication will not befall anyone else.”^[122]

In the first five years after the Michigan Model was implemented at the University of Michigan Health System, the system saw its number of active medical malpractice claims drop from 262 in 2001 to below 100 in 2005, the average claims processing time drop from 20.3 months to 9.5 months, the total insurance reserves drop by more than two thirds, and the average costs of litigation cut in half.^[123] Due to the success of the Michigan Model, in 2009 the Agency for Healthcare Research and Quality created a $23 million patient safety and liability grant to study the application of this open communication model, which is known as the Communication and Optimal Resolution (CANDOR) study.^[124] To date, four states have adopted so-called CANDOR Laws.^[125]

For this system to work in Florida, however, some hard truths need to be faced by all parties. First, no matter how skilled or careful, “health care professionals work in an inherently and unpredictably dangerous environment in which the simplest decision can have catastrophic consequences for their patients.”^[126] Second, creating a wall of silence between injured patients and their doctors, through insurance companies and/or attorneys, does nothing to deescalate the situation. Third, reform measures that are “no-fault” in nature do nothing to accomplish the purported goals of tort reform and certainly do not improve the quality or affordability of health care. And fourth, for any of this to work, we need a saturated medical malpractice insurance market in Florida and a functioning insurance industry with legitimate oversight.

The fourth truth may be achieved by enacting particular legislation that seven other states already have: mandatory medical malpractice insurance for all providers and entities in the state.^[127] A saturated insurance market ensures lower premiums for physicians and facilitates the implementation of greater physician-patient communication when used in conjunction with Michigan Model systems. Notably, those states with CANDOR-style laws or mandatory medical malpractice insurance are also consistently ranked among the states with the lowest rates for malpractice insurance and the fewest number of malpractice suits filed, as well as being the best states for physicians to practice.^[128]

New Diagnosis, New Treatment Plan

Tort reform is supposed to advocate for increased fairness, predictability, and efficiency in America’s civil justice system. So why has the focus in Florida been only on stopping injured victims from having their day in court, rather than improving patient outcomes to prevent the need for court intervention altogether?

Tort reform in medical malpractice cases centered around a “plaintiffs are the problem” diagnosis has not reduced the number of lawsuits, improved health care, or decreased insurance premiums. Instead, such tort reform has highjacked reform and turned it into a political and economic campaign that undermines the entire goal of the tort system: learning from mistakes, making wrongs right, and doing better next time. Despite its goal, Florida’s tort reform has tipped the scales entirely in favor of one side to the detriment of all others.

Tort reform has had devastating consequences for countless innocent children and families.^[129] It has also weakened the ability of the civil justice system to protect vulnerable patients from injury.^[130] Good physicians suffer as they bear the consequences when repeat offenders plague the health-care system. If the public good that results from these tort reforms is improving quality and access to health care, there should be some quantifiable improvement after 40 years. Yet, Florida’s health-care system is among the nation’s worst in access, affordability, avoidable use, consistent pediatric care, and overall costs.^[131]

Tort reform has been the preferred treatment plan for the “plaintiffs are the problem” diagnosis for decades and to no avail. “If there is to be any major reduction in medical malpractice claims and the financial impact they have on the medical community, there must first be an integrated approach to patient safety, quality improvement, and the education of both medical staff and patients.”^[132] For 40 years, there has been no improvement because the wrong diagnosis has led to the wrong treatment time and time again. Now, in the face of record-high inflation and medical malpractice insurance premiums, advocates for tort reform will sound the alarm bells once again and insist on doubling down harder on plaintiffs.

As the McCall analysis and the Michigan Model demonstrate, there’s a new diagnosis available and it’s time to institute a new treatment plan for medical malpractice.