Friday, October 31st, 2014

Scott-O-Meter

Protect doctors working for the state Department of Health from litigation

"Rick Scott supports extending sovereign immunity to physicians acting on behalf of the Department of Health, as already provided to those acting as agents of the Department of Corrections, and providing some measure of indemnification to those physicians who primarily treat Medicare and Medicaid patients."


Updates

Scott signs bills that extend protection to certain doctors

During his 2010 campaign for governor, Rick Scott made a two-part promise that related to doctors.

Scott said he "supports extending sovereign immunity to physicians acting on behalf of the Department of Health, as already provided to those acting as agents of the Department of Corrections, and providing some measure of indemnification to those physicians who primarily treat Medicare and Medicaid patients."

At the end of Scott's first year in office in 2011, we gave him an "In the Works," based on his signing of a bill relating to the second part of the promise. The bill placed a cap on damages in cases filed by Medicaid recipients. That wasn't the same as "indemnification" -- see a more detailed analysis about this in our previous update -- but it was good enough to meet Scott's broader goal of limiting doctors' exposure in exchange for treating Medicaid recipients.

However, in late 2011 we found no evidence that sovereign immunity had been extended to physicians acting on behalf of the state Department of Health.

Now, as Scott's third year in office nears its end, we are checking again on his progress.

First, some background. According to a Florida house analysis, "sovereign immunity bars lawsuits against the state or political subdivisions for the torts of officers or employees unless the immunity is expressly waived. Instead of holding the employee or agent liable, the state defends the claim."

Florida statute 766.1115, enacted in 1992, extended sovereign immunity to health care providers who volunteer on behalf of the state to treat the poor. There are about 13,000 licensed, contracted volunteer providers in the state. (The department also directly employs 381 licensed medical doctors, who were already covered by a law passed in the 1970s that extend sovereign immunity to state employees.)

Scott has worked to extend sovereign immunity to additional doctors who do work on behalf of the Department of Health:

• In 2013, Scott signed HB 1093, which tweaked that law to diminish the state's control as it relates to patient eligibility, referral and care determinations. That move shored up sovereign immunity for those volunteers.

• In 2011, Scott signed SB1676 which extended sovereign immunity to university doctors at teaching hospitals.

So Scott has signed legislation to address the first part of the promise, and has signed legislation that caps damages -- but falls short of providing "indemnification" -- on the second part of the promise. We rate this a Compromise.

Sources:

Florida House, HB 1093, Signed by Gov. Rick Scott, June 7, 2013

Florida House, SB 1676, Signed by Gov. Rick Scott, June 24, 2011

Florida statute, 768.28, 1973

Interview, Nathan Dunn, spokesman for Florida Department of Health, Nov. 26, 2013

Interview, Erin Vansickle, spokeswoman for the Florida Medical Association, Nov. 26, 2013

Interview, Sarah B. McBrearty, spokeswoman for the Florida Hospital Association, Dec. 2, 2013

Interview, Jackie Schutz, spokeswoman for Gov. Rick Scott, Dec. 4, 2013

Bill that placed cap on damages in suits filed by Medicaid participants moves Scott toward a goal to protect doctors

During the 2010 campaign for governor, Rick Scott made two promises in an effort to help some doctors avoid expensive lawsuits.

"Rick Scott supports extending sovereign immunity to physicians acting on behalf of the Department of Health, as already provided to those acting as agents of the Department of Corrections, and providing some measure of indemnification to those physicians who primarily treat Medicare and Medicaid patients."

The idea of granting immunity to doctors who treat Medicaid patients was a subject of debate before Scott took office. In late 2010, a report commissioned by then-CFO Alex Sink warned that giving doctors who treat Medicaid patients immunity from lawsuits could cost taxpayers at least $69 million a year. The report also stated that extending sovereign immunity to Medicaid providers could be challenged on the grounds that providers aren't truly agents of the state. Sink, a Democrat, lost to Republican Scott in November 2010. Her campaign was backed by trial lawyers while his received the support of the Florida Medical Association.

Sovereign immunity bars lawsuits against the state or political subdivisions for the torts of officers or employees unless the immunity is expressly waived. Instead of holding the employee or agent liable, the state defends the claim.

Medicaid is a partnership of the federal and state governments that provides health services for low-income people and is the second-largest program in the state behind education -- representing more than 25 percent of the budget in 2010-2011. Medicare, a federally-run program, is a health insurance program for seniors.

Florida House Bill 7109 included a limit on noneconomic damages for medical negligence. The bill passed the House 80-39 and Senate 26-12 May 6 as amended and was approved by Scott in June. The bill analysis explains:

"The limitation will apply when a Medicaid recipient brings an action for personal injury or wrongful death alleging medical negligence by the practitioner. The amount of noneconomic damages is limited to $300,000 per person; however, no practitioner individually will be liable for more than $200.000. Additionally, the bill creates an exception and the limitation will not apply if the Medicaid recipient pleads and proves, by clear and convincing evidence that the practitioner acted in a wrongful manner. 'Wrongful manner' means in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property."

State law defines "noneconomic damages” as nonfinancial losses that would not have occurred but for the injury giving rise to the cause of action, including pain and suffering, inconvenience, physical impairment, mental anguish, disfigurement, loss of capacity for enjoyment of life, and other nonfinancial losses to the extent the claimant is entitled to recover such damages under general law, including the Wrongful Death Act.

That bill placed a cap on damages but that isn't sovereign immunity, said Jeff Scott, general counsel for the Florida Medical Association.

"The way that bill started out was a discussion about originally giving physicians sovereign immunity for treating Medicaid patients," Scott told PolitiFact Florida in an interview. "We had a conversation with folks in the Legislature who supported that idea, the governor supported it, we were all set to do that. When it got down to crafting the actual language it became clear that an easier way to go rather than substitute the state for physicians would be to limit damages -- that's an easier sell."

Since the legislation passed, Gov. Scott "asked his policy, legal and health experts to look at ways to move toward granting full sovereign immunity, or other options that would best serve Florida"s patients, health care providers, and taxpayers," Scott spokesman Brian Burgess said in an e-mail. Burgess said that that effort relates to doctors who treat Medicaid patients. In our conversations with Burgess and attempts to obtain information from a Department of Health spokeswoman we heard no indication that anything has happened under Scott's tenure to provide sovereign immunity to doctors at the Department of Health.

The second goal is intended to encourage doctors to see Medicaid and Medicare patients. We'll focus on Medicaid here because there isn't a shortage of doctors in Medicare, according to Alan Levine, a former state secretary of Florida's Agency for Health Care Administration and chair of Scott's health and human services transition team.

Scott promised to provide "some measure of indemnification" to doctors who primarily treat Medicare and Medicaid patients. HB 7109 placed a cap on damages for doctors who treat Medicaid patients. But does that qualify as a measure of indemnification?

We turned to two law professors for an answer: Robert Jerry, an expert in contracts as well as health insurance at the University of Florida, and Mary Coombs who teaches and writes in the areas of torts and law and medicine at the University of Miami.

" 'Indemnity' is a sum paid by A to B for the purpose of compensating B for a loss. ... Thus, a cap on damages -- i.e., a limit on what one party can recover in a claim against the other -- is not really the same thing as indemnification," Jerry said in an e-mail. "A cap prevents an aggrieved party from recovering compensation for a portion of the loss, i.e., the loss above the cap. ... But no one is 'indemnifying' the doctor for his/her liability above the cap; rather, the physician is made immune from responsibility for the loss above the cap. So, in my opinion, it is incorrect to refer to a cap as 'some measure of indemnification.' It is true that a cap protects the physician in the same way that indemnification would do so, but the cap is not, in and of itself, indemnification"

Coombs noted the limits of the cap since it only applies to non-economic damages: "So if, for example, a doctor committed malpractice in a way that caused serious economic damages (e.g. future expenses for medical care or rehabilitation or the need for assistance, such as becoming paraplegic) these are not limited; (2) it only applies to Medicaid, not Medicare; and (3) it applies even if this is the only Medicaid patient Dr. X ever treated, not just those 'who primarily treat' Medicaid (although as a practical matter many physicians don"t ever treat any Medicaid patients!)"

How Scott fared

Scott made a two-part promise when he said: "Rick Scott supports extending sovereign immunity to physicians acting on behalf of the Department of Health, as already provided to those acting as agents of the Department of Corrections, and providing some measure of indemnification to those physicians who primarily treat Medicare and Medicaid patients." We couldn't find any evidence that the first half of the promise -- extending immunity to Department of Health doctors -- has occurred. On the second half, the Legislature passed a bill -- and Scott signed -- that placed a cap on damages in cases filed by Medicaid recipients. This doesn't equate to "indemnification," but it meets Scott's broader goal of limiting doctors' exposure in exchange for treating Medicaid recipients. We rate this promise In the Works.

Sources:

Rick Scott campaign for governor, "Let's Get to Work," 2010 campaign

Former CFO Alex Sink,"Extending sovereign immunity to Florida Medicaid providers: A fiscal and legal analysis," Dec. 21, 2010

Florida Senate, Final Bill analysis House Bill 7109, Bill approved by Gov. Rick Scott June 2, 2011

Florida Senate, House Bill 7109, Approved by Gov. Rick Scott June 2, 2011

Interview, Erin Vansickle, spokeswoman for the Florida Medical Association, Nov. 28, 2011

Interview, Jessica Hammonds, spokeswoman for the Florida Department of Health, Nov. 28, 2011

Interview, Brian Burgess, spokesman for Gov. Rick Scott, Nov. 30, 2011

Interview, Jeff Scott, general counsel for the Florida Medical Association, Nov. 28, 2011

Interview, Bill Bell, general counsel for the Florida Hospital Association, Nov. 29, 2011

Interview, Robert Jerry, law professor at the University of Florida, Nov. 29, 2011

Interview, Mary Coombs, law professor at the University of Miami, Nov. 29, 2011

Interview, Alan Levine, former secretary of Florida's Agency for Health Care Administration and chair of Gov. Rick Scott's health and human services transition team, Dec. 2, 2011