Posted on 08/09/2003 4:07:19 PM PDT by eartotheground
TALLAHASSEE -- The quality of the smiles Friday told who won Florida's months-long political standoff over medical malpractice lawsuits.
Gov. Jeb Bush approached the podium set up in the center of the Capitol rotunda with a tight grin as he praised legislative leaders for the deal that let him announce that he was calling the House and Senate back to Tallahassee Tuesday to begin the third special session of the year devoted to medical malpractice insurance reform.
Behind him, top GOP senators could scarcely contain their glee: Finally, five and a half years into Bush's tenure, they had stared down the popular governor, the brother of a popular president, and forced him to blink.
Said one privately: "This is probably the first time he's ever been spanked."
Said another: "I don't want to gloat. Well, yes I do."
For five years, Bush's strong personality, combined with a Republican cadre of lawmakers too closely allied or too timid to challenge him, has allowed him a string of legislative victories.
That ended Friday, as Bush was forced to retreat from a long, public campaign to impose $250,000 caps on noneconomic damages, such as those for pain and suffering, that juries can award victims in medical malpractice cases.
Instead, he had to accept, with minor changes, the package that Senate President Jim King and his top leaders were pushing during the second failed special session last month.
Key to the agreement announced Friday was the element that would limit noneconomic damages against individual doctors to $500,000 per injured patient, with the cap rising to $1 million in the case of death, permanent coma or limited catastrophic injuries.
Currently, there are no limits on noneconomic or economic damages. Friday's agreement would not impose any caps on "economic" damages, such as the cost of longtime care or lost wages.
Individuals reacted according to their economic interest. The Florida Medical Association said the $500,000 to $1 million cap would not help lower malpractice insurance premiums.
Dr. Stuart Himmelstein, president-elect of the Palm Beach County Medical Society and a Delray Beach internist, said, "It's too easy to break through the caps. This is not the fix we wanted. This won't help bring down rates."
Trial lawyers said the caps would hurt grievously injured patients, help insurance companies and probably be found unconstitutional.
Insurers say bill not enough
And insurers said the bill would not be enough to let them lower premiums significantly.
Bush, however, said, "To have caps on noneconomic damages for hospitals and for doctors, for our health-care providers... will create certainty in the insurance marketplace. I'm confident that in a short period of time there will be some reductions" in doctors' insurance rates.
But, most agree, it's still the biggest piece of legislation on malpractice insurance to pass the legislature in 20 years -- and it's being taken without reliable data.
The state's database of "closed claim" medical practice cases is incomplete. By its very nature, it does not include more recent cases that are still unresolved. And even the closed cases cannot say with any certainty how much of each pain-and-suffering settlement was really for pain and suffering, and how much was simply shifted over from the lost-wages category to lessen the tax consequence for the victim.
"It is not comprehensive, and it is not really reliable," Steve Roddenberry, a state insurance regulator, told Bush and top senators during a meeting Wednesday morning.
Nevertheless, Bush has pushed the issue relentlessly since last year in an effort that critics say is primarily a way to strike back at a hated political foe, the trial bar.
Indeed, Bush said in an unguarded moment during last year's reelection campaign that it was necessary "to whack" trial lawyers. A month after reelection, he said he would push hard for the $250,000 cap because he "wasn't scared anymore" of trial lawyers who had pushed so hard to defeat him.
Bush continued down that track for the next six months. He often said fixing the medical malpractice "crisis" required many different elements, but he generally added that an overall solution would not be complete without a strict, $250,000 cap on noneconomic damages.
Bush turned to hardball
When all else failed, Gov. Bush began playing hardball, essentially equating support for a $250,000 cap with being a good Republican. And he made it clear he considered the contrapositive equally true: A lawmaker who did not support a $250,000 cap could not be a good Republican.
That sent Republican senators ballistic, particularly when a top Bush aide sent an e-mail to a supporter agreeing that two anti-cap senators should be defeated in the 2004 Republican primary election and when Bush himself told other supporters that GOP donors should not give money to Republican senators who opposed him.
GOP senators, some of whom have been active in the party since before Bush moved to Florida in 1980, were furious, and finally played the hole card they had been holding for months.
Since the 2002 meetings of Bush's task force, some senators had believed the lobbyists' contentions did not seem to have any foundation in fact. They put the insurers and the doctors groups under oath, and under penalty of perjury, to see what they would say then.
The results were astounding.
The staff director of Bush's medical malpractice task force conceded that he had relied on data supplied by the Florida Hospital Association, whose members have a financial stake in the outcome, rather than data collected by state regulators.
Florida Medical Association lobbyist Sandra Mortham denied under oath that there was an explosion of "frivolous" lawsuits causing the malpractice insurance problem, even though a press release from the FMA had quoted her as saying exactly that.
Testimony also found that the number of licensed physicians in the state is increasing, despite claims that doctors are leaving the state in droves.
Although some newspapers, such as The Palm Beach Post, had previously reported data from state insurance regulators that often contradicted what the lobbyists claimed, the sworn testimony changed the tenor of much of the media coverage. The words and pictures flowing from the debate everywhere started exploring the underlying premises of the so-called "crisis."
National GOP was watching
Encouraged by what they perceived as a turning tide, the emboldened senators also came to the realization that the national GOP, watching Florida closely in anticipation of next year's election, was not liking what it was seeing.
GOP senators who attended the conservative American Legislative Exchange Council conference in Washington, D.C., last month top party officials asked them to end the rancorous atmosphere on the issue.
King, a lifelong Republican known for his dislike of confrontation, started pitching compromise numbers below the Senate's $500,000 bottom-line position as a way to let Gov. Bush save face. But where King feared another blowup, his lieutenants smelled victory. They realized that the national party needed their solidarity.
Instead of letting Bush negotiate with King directly, like Bush wanted to, King's lieutenants forced Bush to negotiate with King's likely successor, Rules Chairman Tom Lee, a blunt home builder from Brandon. According to sources, Lee set the tone by letting Bush know that he didn't care whether he lost the Senate presidency or whether President Bush lost Florida, but that he refused to buy into the notion that a $250,000 cap was a core Republican value.
Lee would not discuss his conversations with Bush, saying only, "I was out of time and energy. I think it all worked out for the best."
Said another: "I don't want to gloat. Well, yes I do."
I think I am missing something here. If you are in the Republican party, it's OK to "spank" the Republican governor??? Am I hopelessly naive or should Lee and King be kicked out of the party?
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