By: Jeff Cohen
Florida has long been a hot spot for medical malpractice lawsuits. Professionals debate the causes frequently, but the fact remains: Florida is a place where medicine has to be practiced defensively. And it’s likely to get worse because the Florida Supreme Court recently tossed out the state cap on non-economic damages.
Since the cap was found to be unconstitutional, the risk of expensive med mal suits is expected to rise. And the secondary effect will almost certainly be increased med mal insurance premiums. If the upcoming premium rise is like any from the past (this is a cyclic phenomenon), it’s a sure thing that more physicians will decide to self-insure (not carry professional liability insurance). The State of Florida doesn’t require physicians to carry professional liability insurance provided that they have adequate financial backing or provide necessary patient notices
Which leaves “bare” physicians to wonder what to do. Asset protection is a must for any person who has assets, not just physicians. The state protections afforded to tenants by the entireties (spouses), homeowners (homestead exemption) and top wage earners in families (head of household) are unique to Florida. These laws have been around for many many years and were not created to specifically protect physicians and healthcare business owners. And physicians and healthcare business owners need to know about these laws and how they apply!
Many physicians are attracted to the notion of “pre funding” their litigation expenses through a pre-paid version of legal defense coverage. They hope that by capping their legal defense spending at maybe $8,000 each year (instead of $30,000 and up for insurance), with the promise of full blown legal defense, they will (a) be a smaller target for lawsuits, and (b) save money over the long haul.
Though the issue of avoiding the risk by self-insuring hasn’t received any widespread support, the promise of saving money on legal defense by spending a certain amount each year for a prepaid plan has gained some traction. For those who avoid getting sued altogether, the decision was money smart. But for those who are sued, we have to wonder how a physician or healthcare business could receive the value of the usual full on insurance defense provide when an insurance company is paying the bill for $8-10,000. Are physicians fooling themselves into thinking they’re truly protected when they’re not? Is the defense provided by a low annual prefunded legal defense expense the same as the defense provided by a lawyer who has practiced for 20-30 years? Do physicians and other healthcare business people truly think “A lawyer is a lawyer. They’re all the same” any more than they think “All physicians are the same.” This one is hard to see.
When a patient wants the best, the patient chooses the right doctor for the job. Oftentimes, the choice is made after independent research and consultation, to be sure that they are given the best care possible. When it comes to a physician’s defense of his or her practice in the public eyes of the court, wouldn’t a physician want the same? It just makes sense that a terrific defense attorney who you know and trust is worth every penny
