Emphasize protection to trim ‘lawsuit abuse’

We have to give Gov. Ron DeSantis and business interests in Florida credit for a well-pitched campaign against “billboard lawyers” and a civil justice system they claim is raging out of control. In a particularly clever bit of semantic stagecraft, they are pushing a claim that “lawsuit abuse” costs each Florida household more than $5,000 a year.

Unfortunately, this time they aren’t going to win the hearts and minds of most Floridians.

At a speech in Jacksonville on Tuesday, DeSantis was touting a large tort-reform package, focused on reforming state-insurance litigation and reducing the growing number of frivolous claims that jam the legal system.

While many find the countless barrage of ads touting insurance payouts in the hundreds of thousands of dollars annoying, Floridians understand that big-dollar judgments usually go to people whose lives have been drastically changed by the negligence, greed or recklessness of someone else — and they can easily imagine themselves in the same desperate predicament. Often, economic or medical injuries could have been prevented if corporate interests hadn’t cut corners or made deceptive claims. Meanwhile, too many Floridians have to go to war with their own insurance companies to get the coverage they were promised.

And yes, there are shady lawyers out there — but efforts to blame billboard lawyers for all “lawsuit abuse,” and the claim that it costs every Florida household $5,065 a year, are fundamentally dishonest. That figure (taken from a study commissioned by the U.S. Chamber of Commerce, released in November) includes many cases where the guilt of corrupt contractors, careless doctors, slipshod nursing homes or greedy insurance companies is undeniable, and the defendants had multiple opportunities to make things right but refused. Juries punish that behavior with so-called nuclear verdicts, which are often reduced on appeal.

Lawmakers also know that the study’s $5,065 figure is based on litigation that took place before December’s special session, when the Legislature made significant changes intended to slash the amount of litigation between Floridians and their insurance companies. Meanwhile, DeSantis has appointed dozens of judges who are already reshaping case law to be less friendly to plaintiffs.

If lawmakers want to convince Floridians to give away critical legal rights, they need to start by being honest. They don’t really know how much frivolous litigation and shady legal practices cost state residents, but it’s not $5,065 — not even close.

Florida residents also know this: Many of the lawsuits filed in this state are the result of lax consumer protections and a failure to deal with bigger societal problems such as lack of access to health care. Below, we’ll run down a list of changes that are all but guaranteed to reduce the number of legitimate lawsuits that are filed in Florida.

The reforms

Florida residents may not realize it, but their access to civil justice may have already taken a significant whack. In the recent special session on property insurance, lawmakers eliminated so-called one-way attorney fees that require property insurance companies to pay their customers’ legal costs if the insurer is found to have denied a valid claim, and made other changes that make it harder for consumers to prevail in those insurance disputes. A big part of DeSantis’ proposed reform focuses on expanding those protections to other forms of insurance, including health and vehicle policies.

Those provisions might reduce the disproportionate share of money that flows to attorneys in some borderline cases. But it will also make it easier and more profitable for insurance companies to deny claims. Is the tradeoff worth it? That’s something Florida leaders should pay close attention to, and Senate President Kathleen Passidomo acknowledged as much in a Monday press conference announcing further reforms that will be on the agenda for the 2023 spring session.

“I know we can find the right balance and protect the rights of Floridians who suffer a loss, while at the same time safeguarding everyone else against the hidden costs of prolonged litigation,” she said. But it’s unrealistic to expect lawmakers to find that balance before they have reliable data on how the laws that have already passed impact consumers and litigation costs.

Gathering reliable, current data will take time, especially since many cases play out over months, if not years. But rushing ahead now could be devastating to those Floridians who will suffer debilitating injuries or have their claims denied under hastily passed laws that tipped the scales too far in favor of defendants.

The same holds true for other proposed changes, with one exception: DeSantis and legislative leaders want juries to have more accurate information about medical costs associated with injuries. Tort reform proponents claim that medical damages are often based on “fictitious” figures that can be thousands of dollars more than the actual cost of the care a plaintiff needs. That’s a legitimate concern that reaches far beyond the arena of tort reform — and one that lawmakers should tackle in a way that benefits all Floridians, by continuing to push for greater medical-cost transparency.

The bigger picture

That leads to the other big reality lawmakers must confront: Litigation flourishes in Florida because too often, the state has let its residents down. Going to court is often the last resort for people whose needs could have been met far more efficiently, inexpensively — and justly.

Here’s a short list of changes that could make a tremendous difference in the number of people desperate enough to resort to lawsuits:

Improve access to health care: The evidence is clear. The biggest drivers of medical malpractice claims — such as delayed diagnosis, failure to treat health problems and medication errors — often start with uninsured people who don’t get good preventative care. The good news is that Florida leads the nation in the number of people taking advantage of insurance plans offered through the Affordable Care Act, aka Obamacare. The bad news is that hundreds of thousands of Florida residents are about to be scrubbed from state Medicaid rolls — and because Florida is one of only 12 states that hasn’t expanded Medicaid eligibility to low-income workers, many of those people could join at least 500,000 others who earn too little to buy policies in the marketplace but too much for Medicaid. Expanding that access should be a no-brainer.

Fight for consumers: Common consumer scams are rampant in Florida, but the state’s regulation and investigation efforts are fractured across multiple state agencies, many of which are underfunded and undercut by special-interest laws that protect bad business practices. When residents can’t figure out which agency to contact, they are more likely to head to court. At the least, Florida needs a well-publicized portal that spells out where to go for various types of claims. But lawmakers should also inventory the most common scams — such as the dubious roofing contractors driving up property insurance rates with spurious claims of storm damage — and direct adequate investigations and law enforcement their way.

Make nursing homes safer: Under the guise of COVID-era labor shortages, nursing homes successfully coaxed lawmakers into a rollback on staffing requirements. This is almost certain to lead to a surge of litigation over poor care and financial abuse of vulnerable seniors. State records show that, from 2014 to 2022, the number of “adverse” nursing home deaths in Florida doubled, with much of the increase coming in the last two years. Lawmakers can prevent more misery, deaths and lawsuits by reinstating rational, protective standards that require nursing homes to put patient safety above profits.

These are just a few ideas; lawmakers should look for more before they make it more difficult for Floridians to find justice in a system that already feels stacked against them. Until the state tackles the root causes that drive litigation, the lawsuits will keep coming — and the billboard lawyers will keep making money.