Jeffery M. Scott, general counsel and senior director of governmental affairs, Florida Medical Association [Photo:Ray Stanyard]

In the early 2000s, medical malpractice rates were rising by double digits, Florida had some of the highest litigation costs in the nation and some physicians were claiming that they couldn’t afford to practice in Florida anymore. Since 2005, however, rates have fallen 30%. Cases are also down, from 3,753 settled in 2005 to 3,336 in 2008, according to the Florida Office of Insurance Regulation.

Physician and lawyer advocacy groups attribute the declines to a series of tort law changes that made it harder to win malpractice suits and big settlements.

Jeffery M. Scott, general counsel and senior director of governmental affairs for the Florida Medical Association, says it would be a “gross mischaracterization” to say tort reform has not been successful.

The Florida Insurance Council isn’t so sure. It points out that med-mal rates and cases are down nationally, even in states that haven’t enacted tort reform. Rather, it speculates that the numbers are down because it has become too expensive for many lawyers to pursue med-mal cases.

Debra Henley, acting executive director, Florida Justice Association [Photo: Ray Stanyard]

Debra Henley, acting executive director of the Florida Justice Association, sees a combination of factors — adding that the declining med-mal numbers might look good to physicians and insurers, but they’re not necessarily good for patients. “We have had many, many years now of restrictions on the rights of med-mal victims,” Henley says. “When you put together things like caps on damages, higher burdens of proof, the requirement of more expert witnesses than you used to have to have — when you put all of that together, you get to a point where only the most catastrophic medical malpractice cases can be brought.”

Linda Quick, president of the South Florida Hospital and Healthcare Association, says the majority of doctors in Miami-Dade now go bare and, as a result, the practice of defensive medicine hasn’t declined. With doctors knowing their own assets are at risk, “The fear of litigation ... is very pervasive here. You’re going to get every test.” She says a doctor who came from up north said “he was surprised people don’t glow in the dark” from all the testing.