The below content previously appeared in the April 2023 issue of the Broward County Bar Association’s Barrister magazine.
SIGNIFICANT CHANGES LOOMING IN THE LEGISLATURE
With proposed House Bill 837 (House Bill 837 (2023) – The Florida Senate (flsenate.gov)), the Florida Legislature is looking at dramatic shifts in tort litigation in Florida. The bill is still proposed at the time of this writing, and therefore subject to additional modifications, but the current version includes the following:
Statute of Limitations
The latest version of the bill proposes to change the statute of limitations for negligence claims to two years, instead of four.
This proposal would change comparative negligence. Instead of being able to recover some percentage of damages, an injured plaintiff who is found to be more than 50% at fault will not be permitted to recover any damages in a personal injury or wrongful death case.
Anywhere you can recover attorneys’ fees (now called “attorney fees”) there would be a presumption that the lodestar method is sufficient, which is a reasonable hourly rate multiplied by the number of hours during which the work was performed. It would become even more unlikely that the courts would allow the use of a multiplier when determining recoverable fees.
Under the proposed changes, a patient/plaintiff would only be able to introduce, at trial, evidence of the actual medical bills that were paid by the patient or on the patient’s behalf, not the amount actually billed by the health care providers. For future medical expenses, if the patient has health insurance, the patient would only be permitted to recover what would be paid under that coverage (plus outside costs for the patient). If the patient does not have insurance, the amount recoverable would be the amount that would be paid under Medicare (and if there is no Medicare rate for a particular procedure, 140% of the state Medicaid rate for that service).
Letters of Protection
In personal injury and wrongful death actions, before asserting a claim for medical expenses rendered under a letter of protection, the patient would be required to disclose: (1) a copy of the letter; (2) itemized billings with appropriate codes; (3) information about factoring companies and how much they paid to purchase the accounts, including any discounts; (4) whether the claimant had insurance coverage at the time the care was provided under the letter of protection and what rates would have been utilized; and (5) the identity of the person who referred the patient to the healthcare provider with the letter of protection.
The bill would eliminate an attorney-client privilege for communications related to the attorney’s efforts in referring a client to a particular medical provider.
The proposed changes to the bad faith statute would give the insurer a safe harbor after being notified of the claim for bad faith and being provided “sufficient evidence” to support it. The insurer would be given 90-days to tender the lesser of the policy limits or the amount demanded. The law also differentiates between statutory and common law bad faith claims. The new law would additionally allow the jury in the bad faith case to also consider whether the insured/claimant (and his or her representatives, including attorneys) “did not act in good faith” and to reduce the damages accordingly, sort of a comparative-bad-faith analysis. Finally, in cases where there are competing claims arising out of a single occurrence (which exceed the available policy limits), the insurer would not be responsible beyond the policy limits if, within 90 days after receiving notice of the claims, the insurer files an interpleader or makes the policy limits available for payment in a binding arbitration.