By Carmel J. Barrau, MD

Legislation has been filed in Tallahassee that will once again seek to expand the ability of adult children to recover non-economic damages in Wrongful Death cases in Florida. As an organization that represents physicians in our community, I recognize that our opposition to this legislation may seem self-serving. However, I would ask our elected officials and the public at large to consider the potential cost of this expanded ability to recover unlimited pain and suffering, versus the ability of the health care system to continue to treat the pain and suffering of those sick and injured in our community.

While that statement may seem over dramatic, the reality facing Florida’s physicians is very real. Florida’s physicians already pay the highest medical malpractice premiums in the Country. The cost of insurance is so high that many physicians locally continue to practice without malpractice insurance. For those that do purchase malpractice insurance, the coverage limits are typically much lower than physicians in other states ($250K versus $1 million+).

Florida also has the second highest number of Medicare beneficiaries of any state in the nation, with over 4.8 million patients. The vast majority of these beneficiaries will have adult children whose ability to recover unlimited pain and suffering damages in Wrongful Death cases will significantly increase litigation exposure for our physicians. While Medicare is supposed to consider malpractice insurance costs in physician reimbursement, due to budget neutrality, the physician fee schedule has failed to increase in relation to inflation for the past 20 years.

In a speech delivered to the National Press Club last week, the President of the American Medical Association, Jesse M. Ehrenfeld, MD, MPH, noted that “In an era of record-high physician burnout and a projected physician shortage up to 124,000 over the next decade, America’s health care system is near its breaking point as tens of millions of Baby Boomers soon will become eligible for Medicare and our nation’s chronic disease burden surges.” Florida will be at the epicenter in this surge of patient demand and is already feeling the impacts of workforce shortages, burnout, and an aging physician population.

According to Robert E. White, Jr., President of The Doctors Company and TDC Group, “When Florida’s Wrongful Death Act was expanded years ago to allow adult children to recover noneconomic damages for the death of a parent and parents to recover noneconomic damages for the death of an adult child, healthcare professionals were exempted. The exemption was because tort reforms were enacted to help curb high premiums for Florida doctors, and this change would have negated the benefits of tort reform. We know that doctors face a higher percentage of death cases when sued than any other class of defendants.”

He continued, “According to the Florida Office of Insurance Regulation’s Medical Malpractice Financial Information, Closed Claim Database and Rule Filings Annual Report dated October 1, 2023, 3,026 claims involving Florida healthcare professionals were closed in 2022, and 1,007 (33 percent) of those were wrongful death cases. Any change in the law that can potentially increase the number of wrongful death cases against healthcare professionals will put upward pressure on rates that are already the highest in the nation.”

As physicians, we strongly support the ability of patients and dependents to recover all of their economic losses in medical liability and Wrongful Death cases where malpractice is proven. We have long advocated for a balance between the needs of individual patients and their dependents to be able to recover unlimited noneconomic damages to make sure that health care remains accessible in the community. We implore state leaders to continue to seek that same balance as they consider a significant expansion of those eligible to recover noneconomic damages in Wrongful Death cases. As physicians and colleagues, we need to come together to educate our leaders on the potential ramifications of pursuing this liability expansion.

Dr. Carmel Barrau is President, Dade County Medical Association, Inc.