FHA Member Alert

On Friday the Florida House of Representatives passed HB 837, “An act relating to civil remedies.” The Senate version of the bill, SB 236, could be passed by that chamber as early as this week. HB 837/SB 236 create generally positive reform to the state’s tort system, however, hospitals should be aware that there are provisions that could impact your business practices.

The bill, which was a major priority for House Speaker Renner and has been supported by Governor DeSantis and Senate President Passidomo, attempts to limit frivolous lawsuits and bad-faith actions by trial lawyers. The bill sponsors, Senator Hutson and Representatives Fabricio and Gregory, seek to disincentivize the overuse of Florida’s tort system by revising how damages are calculated and awarded. Specifically, the bill:

• Changes Florida’s comparative negligence system from a “pure” comparative negligence system to a “modified” system, except for medical negligence cases, so that a plaintiff who is more at fault for his or her own injuries than the defendant may not generally recover damages from the defendant.
• Provides uniform standards to assist juries in calculating the accurate value of medical damages in personal injury or wrongful death actions:
  • Evidence of past medical treatment is limited to amount actually paid, regardless of source of payment.
  • Unpaid charges shall include (but are not limited to): amount commercial insurer will pay or would pay if their commercial insurer covers; the claimant’s share of medical expenses; if patient does not have coverage of any kind then 120% of Medicare reimbursement rate or, if no Medicare rate, 170% of Medicaid; and the value a provider received if they sold their Letter of Protection to a third party.
  • A jury will also hear evidence of coverage for future medical treatment, which will consider commercial reimbursement rates, the same Medicare/Medicaid calculations for uninsured claimants, and any evidence of reasonable future amounts to be billed to the claimant.
  • Letters of protection – “any arrangement where a health care provider renders medical treatment in exchange for a promise of payment for the claimant’s medical expenses from any judgment or settlement of a personal injury or wrongful death action” – will be subject to certain disclosure requirements to prevent claimants from using letters of protection inflating total damages by concealing the amount a provider would generally accept as satisfaction for services rendered.
• Florida’s “bad faith” framework is modified to: allow insurers to avoid third-party bad faith liability if the insurer tenders the policy limits within 120 days after receiving notice of a claim; clarify that negligence alone is not enough to demonstrate bad faith; and requires claimants to act in good faith with respect to providing information and settling the claim.
• Provides that a contingency fee multiplier for an attorney fee award is appropriate only in a rare and exceptional circumstance, adopting the federal standard.
• Provides that Florida’s one-way attorney fee provisions for insurance cases apply in limited situations. This provision is intended to discourage the practice of attorneys identifying de minimis underpayments by insurers, then collecting statutory attorney’s fees that are significantly higher than the amount at issue.
• Requires the trier of fact in certain negligent security actions to consider the fault of all persons who contributed to the injury, establishes a presumption against negligent security liability in specified situations, and expands immunity for a property owner defending a lawsuit against a criminal actor who is injured on the property.
• Reduces the statute of limitations for general negligence cases from 4 years to 2 years.

FHA has supported this legislation while acknowledging that our members could be impacted. We have discussed our concerns with the bill’s sponsors, and the offices of the Speaker and President. As the bill moves through the Senate, we will continue to advocate for stronger protections for hospitals as both health care providers and defendants, while supporting the underlying aims of the sponsors and leadership.

If you have any questions, please contact Michael Williams at [email protected].

Thank you,

Michael Williams, JD
Senior Vice President Federal Affairs and General Counsel