MIAMI, June 16 (UPI) -- As President Bush pushes for a medical malpractice insurance bill in Congress, and shortly after his home state of Texas passed a similar bill, his younger brother is seeking one in Florida.
The bill in Congress passed the House in March but appears to be stalled in the Senate. It sets a national cap of $250,000 for pain and suffering in awards malpractice suits.
That's the same figure set in a bill signed by Texas Gov. Rick Perry Thursday, and the same as one in a bill written by Florida Gov. Jeb Bush for a four-day special session of the Legislature that began Monday.
There are 24 states with caps on non-economic damages in medical liability cases. California passed the first limit in 1975 and in the 1980s began regulating premiums levied by the insurance industry.
The Pennsylvania House of Representatives last week passed a bill to amend the state constitution to allow limits on malpractice suits. A handful of other states are considering malpractice insurance bills.
The amounts of the award limits on awards vary from state to state, while others are adjusted according to inflation or have exceptions. The cap may also be per event, per defendant or per institution -- or there may be a total damage cap.
The cap on awards for pain and suffering is intended to drive down the cost of malpractice insurance for doctors, who say the premiums are more than they can pay.
Trial lawyers contend that the cap won't drive down insurance costs and that it leaves patients vulnerable to incompetent doctors. They said they would be forced to reject many cases because they can't afford to take them, and that most of those cases will involve low-income victims.
Non-economic awards address those wrongs that cannot be covered by lost earnings or the cost of medical care. They include such categories as chronic pain, disfigurement and amputation.
Two studies have been released recently showing that liability caps don't reduce the cost of premiums. Weiss Ratings of West Palm Beach, Fla., said medical malpractice premiums continued to rise despite the imposition of caps and in most cases it was worse in states without caps.
Weiss ratings said that in 19 states that established limits on awards during a 12-year period, premiums jumped 48.2 percent, from $20,414 in 1991 to $30,246 in 2002.
The study also said that in 32 states without caps, the increases came at a slower pace, rising by only 35.9 percent from $22,118 to $30,056.
"Tort reform has failed to address the problem of surging medical malpractice premiums, despite the fact that insurers have benefited from a slowdown in the growth of claims," said Martin Weiss, chairman of Weiss Ratings.
Bush said he disagreed, adding there also were other factors to consider.
"If this is a problem with insurance companies, why is there only about one insurance company writing policies in our state? It is clearly a serious problem," Bush said.
The difficulty is that "we have a problem that is imperiling access to medical care."
He is afraid too many physicians are leaving Florida for greener insurance pastures in other states, creating a shortage of care providers.
A study conducted for Pew Charitable Trusts seemed to agree with both Bush and Weiss Ratings. It said the caps are "unfair" to patients in medical malpractice lawsuits, but access could also be a problem.
"At some point, even severely injured patients would lose more by being denied access to healthcare than by being unfairly compensated for their injuries," the report said.
All this has to be sorted out in four days by the Florida Legislature.
"There has to be a convergence of opinion pretty soon in order to get all this done in four days," Bush said. "I'm hopeful that it will, but if it doesn't, I'll call another special session."
To that, Senate President Jim King of Jacksonville responds, "It could be a long, hot summer."
The House, Senate and the governor's mansion are all in the hands of Republicans, but opinions are sharply divided.
The House earlier this year passed a bill similar to the one offered by the governor during the special session but the Senate, led by King, is opposed.
King said last week that 13 senators would support the $250,000 caps. Eight more are needed for approval in the 40-member Senate.
But both King and Bush said they were willing to bargain.
King said he is willing to look at a higher limit, and also at a "soft cap," which would put the awards on a scale according to the severity of the negligence and hardship rather than setting one limit for all cases.
However, Bush said a hard cap is a must.
"It's not my way or the highway. I'm willing to negotiate as long as it's a hard cap," he said.
Bush has also suggested a provision ordering a 20 percent cut in rates. First Professional Insurance Company, the dominant force among only a handful of companies writing malpractice in the state, said it would cut premiums 20 percent if the cap is passed.
The Academy of Florida Trial Lawyers says the language of Bush's proposal is so full of holes it looks like Swiss cheese.
And the academy said the offer by the insurance company would be aggregate -- varying amounts for different fields of medicine -- rather than across the board, meaning it could be done in such a way that it would have no impact where it counts.
Bush said he went back to the insurance company and was assured the cuts would be across the board.
