On March 24, 2023, the latest round of tort reform measures were signed into law in Florida. While there are a number of implications, the following is a summary of what these changes mean to those who are injured at the hands of another. The law is purposefully designed to reduce litigation and its impact will be felt most by people with personal injury claims, and those who represent them. Here’s what it means, in a nutshell.
It means that the time in which to bring a negligence claim in Florida has been cut in half, from four years to two.
Negligence claims generally seek to recover for personal injuries and property damage. While property damage claims are usually finite and the value can be determined relatively quickly, personal injury cases often take time before their value can be readily ascertained. Medical care and treatment takes time. Conditions can be aggravated or exacerbated, leading to delays in recovery. Notwithstanding this, the legislature has determined that lawsuits in those cases must be filed within two years, regardless of whether the plaintiff has fully recovered or is even able to evaluate the impact of the injuries on his or her future. This change drastically cuts the amount of time for an injured plaintiff (and his or her counsel) to determine the damages that have resulted from someone else’s negligence.
It means that a jury will not be told the medical charges for care and treatment rendered to injured patients in the past.
Medical expenses can often be arbitrary, depending on whether a patient pays the health care provider directly, is covered through private health insurance, or is the beneficiary of public benefits such as Medicare or Medicaid. Historically, a jury was told what the health care providers charged for that medical care so that they had a full picture of the supposed cost of that care. Then, the court would adjust the amount the injured patient was allowed to recover in order to make sure that there was no windfall. Now, the jury will only be told what was paid for that medical care, although the jury will not be told who paid it.
It means that a jury’s award of future damages to an injured plaintiff will be arbitrarily based on what health insurance companies, Medicare or Medicaid might pay for those services.
When it comes to future medical care, juries have historically been told what the health care providers and life care planners believed that care would cost in the future. The courts historically refused to predict whether those costs would be covered by public benefits or private insurance because it was speculative and impossible to know whether those benefits would remain available. Moving forward, when deciding what to award an injured plaintiff for future medical care and treatment, the evidence presented to the jury will be based on an evaluation of what private insurance, Medicare or Medicaid would presumably pay for that care, regardless of whether or not those benefits will be available to that particular patient in the future. If those benefits disappear, or the health care becomes more expensive than anticipated, injured plaintiffs will not have sufficient funds available for the medical care they need.
It means that instead of partially being able to recover for the damages he or she suffered, if an injured person is more than 50% at fault for his or her injuries, he or she will recover no damages at all.
For decades in Florida, an injured plaintiff has been allowed to recover even if he or she contributed to the incident or accident in question. The plaintiff’s recovery was just reduced by the amount of responsibility the jury apportioned to him or her. For example, if the injured plaintiff was 60% at fault, he or she was only allowed to recover for 40% of the damages awarded by the jury. Now, if it is determined that the injured plaintiff was more than 50% at fault, he or she will no longer be permitted to recover any damages at all. This requires those who represent injured plaintiffs to evaluate, before all of the evidence and testimony comes to light, how much responsibility might be apportioned to their own client in order to determine whether to proceed – even where there is clear evidence that the other party also caused or contributed to the accident.
It means that an insured will not be permitted to assign his or her right to recover attorneys’ fees in a lawsuit against an insurance company accused of wrongfully denying coverage.
The legislature did salvage an insured’s right to recover his or her attorneys’ fees in a lawsuit against an insurance company who has denied coverage under the policy. However, the changes to the law do prevent the insured from assigning that right to anyone else, and also require the court to presume that the attorneys’ fees awarded in such a case (or any case, for that matter) do not need to be enhanced by a multiplier.
We will likely be facing many years of litigating under these new changes to the law and, no doubt, litigating over what these changes mean and how they should be applied. It remains to be seen, however, whether the revisions will actually reduce litigation as intended, or whether they’ll simply impact the rights and recovery of those who need the civil judicial system the most – our injured members of society. If you have any questions about how these changes may impact your legal matter(s) and would like to discuss your options, please contact Debbie Klauber, or any of our Haliczer Pettis & Schwamm legal team.