How Florida’s Patient Compensation Fund Could Change Medical Malpractice

What happens if you become a victim of medical malpractice in the state of Florida? You might take your case to a West Palm Beach medical malpractice attorney who will send you for medical tests and consultations with specialists. A medical malpractice lawsuit could conceivably take five to seven years to work its way through the legal system. Even after all of that work and aggravation, there’s no guarantee that a medical malpractice victim will receive any compensation whatsoever, and many believe that there must be a better way.

Florida is currently one of five states considering a Patient Compensation System (PCS) that would take medical malpractice cases out of the courts and instead have them resolved by administrative panels. Under Florida’s current system for compensating the victims of medical malpractice, many injured patients – especially the poor, minorities, and the elderly – have limited access to justice. Even when those victims of malpractice are able to retain legal representation and endure a lengthy medical malpractice procedure, some are not compensated fairly in the end.


By using an administrative process rather than a judicial procedure for medical malpractice claims, the proposed Patient Compensation System would resemble the workers’ compensation system. If the proposed new system is adopted, an alleged victim of medical malpractice would file a claim with a panel composed of health care experts and an administrative law judge. If that panel determines that avoidable harm or medical negligence caused injury, the victim will be compensated fairly and swiftly.


PCS advocates say that a Patient Compensation System would ultimately save millions of dollars by avoiding the courts and eliminating the adversarial relationship between patients and healthcare professionals. Advocates also believe that a PCS would substantially reduce costly “defensive” medicine such as unnecessary blood tests, CT scans, referrals to specialists, x-rays, and MRIs. According to surveys and research, one in four healthcare dollars is spent on defensive medicine including tests or procedures that are not clinically necessary. The healthcare economics firm BioScience Valuation says the annual cost of defensive medicine exceeds $480 billion annually in the United States


On all sides of the issue, observers admit that the current medical malpractice system does not work as efficiently as it should. In 2013, for example, nearly 19 million Floridians paid up to $40 billion in defensive medicine costs. That year in Florida, 75 medical malpractice cases went to trial – that is, they were not settled out of court – and eighteen injured patients were eventually compensated.


Patient Compensation System proponents argue that rather than practicing defensive medicine, a doctor’s time should be spent improving the quality of patient care. Any doctor will tell you that the fear of being sued and the pressure to practice defensive medicine is not in the best interests of their patients. PCS advocates claim that physicians will be more likely to take advantage of new medical breakthroughs and discoveries while treating their patients, which could mean better patient outcomes.

Astoundingly, the research indicates that ninety percent of all genuine medical-related injuries are not compensated. Supporters say that the PCS alternative would ensure that every injured patient in Florida would be fairly compensated with the dollars generated by physicians’ malpractice premiums. Those premiums would no longer pay for costly litigation and instead premiums would be used for their original purpose – compensating injured patients.


The PCS proposal would, according to supporters, bring quicker justice to injured patients and protect physicians from unwarranted lawsuits. Under this model, doctors and hospitals would not be sued for medical malpractice. Instead, a patient would request an investigation by a panel of healthcare experts. If the panel finds a preventable “medical injury” happened, the patient would be compensated in just months rather than the five to seven years it now takes many victims to receive medical malpractice compensation.


Taxpayers would also be the beneficiaries of a Patient Compensation System, according to supporters. Emory University researchers found that doctors in Georgia would substantially reduce the practice of defensive medicine – resulting in a $7 billion savings for the state during the first ten years of a PCS. That’s money saved by the state’s Medicaid program and by the program that insures state employees. And of 1,548 physicians surveyed by Jackson Healthcare in 2012, 62 percent believe an administrative compensation system such as a PCS would reduce the practice of defensive medicine. The doctors ranked a system such as PCS as their top option among choices to reduce defensive medicine.


Not everyone, however, is convinced that a Patient Compensation System is the right answer to the medical malpractice question. The Physician Insurers Association of America (PIAA) says, “Medical liability claims, with their uniquely complex nature, are simply too different from workplace injuries to be handled in the same manner.” The PIAA makes the following arguments in opposition to PCS proposals:


  • About seventy percent of all medical liability claims filed are found to be meritless. A Patient Compensation System would pay most of these claims as well as claims that are not now filed for lack of merit. Compensation would go to persons who are not victims of medical negligence at the expense of those who are.
  • A PCS establishes arbitrary deadlines for claims to be reviewed to expedite compensation. When compelled to analyze claims under an arbitrary deadline, reviewers would be able to provide only a cursory review. In the end, non-meritorious claims would be paid while some meritorious claims would be rejected by rushed reviewers. A Patient Compensation System might be faster, but it would be far less accurate.
  • Proponents claim that a PCS will improve the economics of the healthcare system by reducing “defensive medicine,” but with more claims being paid to more patients, insurance costs would have to increase, or medical malpractice victims would have to receive reduced payments.

With health insurers seeking premium hikes as high as 53 percent in some states in 2016, reforms are clearly and urgently needed, but it’s not clear whether a Patient Compensation System is or is not necessarily the right answer.

For now, of course, the current litigation-based system remains in place for compensating the victims of medical malpractice. Rather than going before a panel, malpractice victims in Florida will need to retain an experienced medical malpractice attorney, depending of course on where they live. The current system is far from perfect, but it has adequately compensated scores of medical malpractice victims in the past, and a good Florida medical malpractice attorney can still make the system work for the victims of medical malpractice in this state.