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The Quarterly Dose

Florida Tort Reform: The Impact of House Bill 837 on Health Care Litigation

The Quarterly Dose - May 2024

May 1, 2024

by Megan J. Nelson

On March 24, 2023, Florida Governor Ron DeSantis signed House Bill 837 into law. Also known as the “Civil Remedies” or “Tort Reform” law, HB 837 has changed civil litigation in Florida, including providing a uniform standard for calculating the accurate value of past and future medical expenses in personal injury or wrongful death actions. Florida Statute 768.0427 now defines how past and future medical expenses may be entered into evidence at trial and how letters of protection are admission as to medical expenses and discovery related to the treating provider and a plaintiff’s attorney’s relationship.

House Bill 837 changes how cases will be evaluated for settlement negotiations and potentially increases the ability to reasonably settle claims before trial. It is important to note that these changes apply to causes of action filed after the effective date of March 24, 2023. However, if a complaint was filed before March 24, 2023, but is amended after March 24, 2023, there may be an argument that the changes from HB 837 should apply to the amended complaint.

If you find yourself wondering why these changes matter, it’s because a plaintiff’s damages are evaluated based on multiple factors, including past and future medical expenses. For example, if the medical bills are $100,000 but the amount paid is $10,000, a plaintiff should not be able to assert $100,000 in medical expenses. Knowing what can be presented to a jury will help to provide a better evaluation and strategy for settlement negotiations.

Before the new law, a plaintiff was permitted to board the full amount of medical bills charged for services rendered, with the exception of services paid by Medicare or Medicaid. Evidence of adjustments, reductions and setoffs could not be entered into evidence, unless paid by Medicare or Medicaid. Now, under HB 837, the evidence offered to prove the amount of damages related to medical expenses for past medical bills is limited to what was actually paid, regardless of the source of payment.

Example: If the medical bill is $1,000 but the contractual reimbursement rate (private insurance, Medicare, Medicaid) is $450 and the plaintiff’s co-pay is $50, then the amount paid for the bill can be presented to the jury as $500, not the $1,000 billed.

For any unpaid medical bills (past and future), the claim can only be for an amount deemed necessary and reasonable. The amount that may be presented will depend on whether the plaintiff has health care coverage. If a plaintiff has Medicare, Medicaid or no coverage, the amount that may be offered into evidence is 120% of the Medicare reimbursement rate in effect on the date of the medical treatment or service obtained. For future medical expenses, the amount would be the reimbursement rate in effect on the date of trial.

Example: If the medical bill is $1,000 but the Medicare reimbursement rate is $400, then the reasonable value of the unpaid services would be $480.

If there is no Medicare rate for a service, then the amount that may be offered into evidence is 170% of the applicable state Medicaid rate in effect on the date of the medical treatment or service obtained. For future medical expenses, the amount would be the reimbursement rate in effect on the date of trial.

Example: If the medical bill is $1,000 but the state Medicaid reimbursement rate is $400, then the reasonable value of the unpaid services would be $680.

New Definition for Letters of Protection
Florida Statute 768.0427 now defines a letter of protection as “any arrangement by which a health care provider renders treatment in exchange for a promise of payment for the claimant’s medical expenses from any judgment or settlement of a personal injury or wrongful death action. The term includes any such arrangement, regardless of whether referred to as a letter of protection.” This means any document showing an agreement for services can be called a “Letter of Protection,” “LOP,” or anything else. If there is an agreement to provide medical services to a plaintiff and not to charge the insurance carrier, it falls under the definition of a letter of protection.

If a plaintiff has health coverage (private insurance, Medicare, Medicaid) but does not submit the medical treatment or services to the insurance carrier (i.e., treating under a letter of protection), the amount that may be offered into evidence is limited to what the insurance carrier would have paid plus the plaintiff’s co-pay.

Example: If the medical bill is $1,000 but the contractual reimbursement rate (private insurance, Medicare, Medicaid) is $450 and the plaintiff’s co-pay is $50, then the amount paid for the bill can be presented to the jury as $500, not the $1,000 billed.

If the letter of protection is subsequently transferred to a third party, the amount that may be offered into evidence is limited to the amount the third party paid or agreed to pay in exchange for the right to receive payment pursuant to the letter of protection.

Example: If the medical bill is $1,000 but a third party bought the letter of protection for $700, then the amount paid for the letter of protection can be presented to the jury as $700, not the $1,000 billed.

The law also places new obligations on a plaintiff to disclose information related to the letter of protection, including identifying whether the plaintiff was referred for treatment and the identity of the person who made the referral. If the referral is made by the plaintiff’s attorney, disclosure of the referral is permitted, and evidence of such referral is admissible, notwithstanding attorney client privilege. Moreover, in such situations, the financial relationship between a law firm and a medical provider, including the number of referrals, frequency and financial benefit obtained, is relevant to the issue of the bias of the testifying medical provider. This effectively overturns the Florida Supreme Court’s decision in Worley v. Central Florida Young Men’s Christian Ass’n, Inc., 228 So. 2d 185 (2017).

As the new law allows evidence of reasonable amounts for necessary treatments, it is important to be aware that a doctor may claim that their bills are reasonable and medically necessary due to the limited availability of doctors willing to treat patients under a letter of protection. However, a proactive defense that actively pursues what the reasonable and customary cost is for the medical treatment and services received, is likely the best course of action. Florida has implemented price transparency related to minimizing the surprise bills that arrive after medical treatment and services have been provided by hospitals. This price transparency allows the defense to argue what constitutes a reasonable and customary value. 


 

The Quarterly Dose – May 2024, has been prepared for our readers by Marshall Dennehey. It is solely intended to provide information on recent legal developments and is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We welcome the opportunity to provide such legal assistance as you require on this and other subjects. If you receive the alerts in error, please send a note to tamontemuro@mdwcg.com. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2024 Marshall Dennehey. All Rights Reserved.

Firm Highlights

Thought Leadership

PA Middle District Dismisses Claims Against School District and its Superintendent, Principal, Special Education Director, and Classroom Teacher

A five-year-old special education student was enrolled in the Wyoming Valley West School District and attended the State Street Elementary School during the 2024-2025 school year. The student refused to clean up classroom toys at dismissal. When his teacher allegedly grabbed him by the wrist to walk him back to his seat, the student dropped to the floor and began crying. The teacher then allegedly grabbed the student by the ankle and dragged him across the floor. Following an investigation, criminal charges were not advanced by the county DA, and the school permitted the teacher to return to the classroom. The student’s parents sued, lodging thirteen legal counts under both state and federal law, which sought monetary damages from the teacher, the school district, the superintendent, the principal, and the director of special education. The plaintiff’s 42 USC 1983 claims were dismissed as to the school district for failure to allege a policy or custom violation, and the failure to alleged deliberate indifference in the failure-to-train context. As to the superintendent, building principal, and special education director, the Section 1983 claims were also dismissed for failure to allege personal involvement on the part of the individuals. Regarding an equal protection claim asserted against all defendants, the motion to dismiss was also granted for a failure to advance a plausible equal protection claim, holding that “plaintiffs' single-act allegations do not include a factual basis to even infer that the act was motivated by discriminatory animus rather than some other non-discriminatory impulse.” The court further dismissed the plaintiff’s negligence-based claims including negligence against the teacher and district administrators, NIED, and vicarious liability under the Political Subdivision Tort Claims Act (PSTCA). The federal claims under the IDEA, Section 504, and the ADA were also dismissed in various respects. The IDEA claim was dismissed against all defendants with prejudice for failure to exhaust administrative remedies. The Section 504 claims against the individual defendants were also dismissed with prejudice, as districts, not individuals, are the recipients of federal funds under Section 504. However, the Section 504 and ADA claims were dismissed without prejudice as to defendant Wyoming Valley West, and the plaintiff was permitted leave to amend.

Result

No-Cause Jury Verdict Secured in Wrongful Death Trial

We successfully obtained a no-cause jury verdict in a 13-day wrongful death trial. The decedent, a 59-year-old man, was admitted to the emergency room on February 15, 2019, with complaints of abdominal pain, decreased appetite, and constipation, despite the use of laxatives. The patient did not complain of any nausea, vomiting, or diarrhea. He had a significant medical history including diabetes, hypertension, prior coronary artery stenting, morbid obesity (with past gastric bypass surgery), longstanding ventral hernia, and back pain. A CT scan revealed multiple hernias and a potential closed-loop bowel obstruction, leading to a surgery consultation. Our client, an emergency general surgeon, interpreted that the patient did not have a closed loop or any significant obstruction and recommended non-surgical management. The patient was approved to have clear liquids, and had a vomiting incident shortly after, but our client was not notified. The patient was returned to NPO status, and after improving overnight, he was returned to “clears” and additional medical and renal consults were ordered. Our client did not receive any communications from the residents/nurses of any changes in the patient’s condition. On February 18, 2019, two rapid responses were called due to increased heart rate and vomiting. It is believed that the vomiting resulted in aspiration, causing sepsis, ultimately leading to the patient’s death. During the trial, the plaintiff’s sole medical expert highlighted imaging on the wrong hernia, which called into question all of his opinions in the case. We made key objections related to the expert testimony, limiting what the allegations were, and preventing new allegations from being made. After approximately two and a half hours of deliberating, the jury returned a no-cause verdict. 

Thought Leadership

U.S. Supreme Court Decides Key Issue Regarding Interstate Freight Broker Liability

Freight brokers are intermediaries.  They connect shippers of goods with trucking companies that transport those goods.  Freight brokers match a load of freight with a trucking company and oversee the logistics of the transportation. For a number of years there has been a division among the Federal Circuits regarding the potential liability of freight brokers when the trucking companies that they retain for interstate loads are involved in accidents.  At the center of this division was the Federal Aviation Administration Authorization Act of 1994 (FAAAA).  Some Federal Circuit Courts have held that state law negligent hiring claims against freight brokers were preempted by the FAAAA .  Other Federal Circuits Courts have held that even if preemption applied, the “safety exception” in the FAAAA saved state law negligent hiring claims from federal preemption.  On May 14, 2026, the U.S. Supreme Court addressed the conflict in Montgomery v. Caribe Transport II, LLC, et al, No24-1238. In that case freight broker C.H. Robinson selected Caribe Transport to haul an interstate load. The commercial truck driver employed by Caribe Transport allegedly caused an accident and the plaintiff, Montgomery, was seriously injured. Montgomery brought an action against the driver, Caribe Transport and C.H. Robinson. The allegation against C.H. Robinson was that it negligently retained Caribe Transport when it knew, or should have known, that it was an unsafe company. The Seventh Circuit Court of Appeals held that Montgomery’s claims against C.H. Robinson were preempted by the FAAAA. The plaintiff appealed to the U.S. Supreme Court.  The U.S. Supreme Court’s decision focused primarily on the safety exception in the FAAAA.  That provision provides that the FAAAA preemption “…shall not restrict the safety regulatory authority of a State with respect to motor vehicles.” C.H. Robinson argued, as freight brokers historically have, that their function was not “with respect to motor vehicles” because they do not own trucks or employ drivers. They are merely intermediaries, connecting entities who need freight moved with entities who can do that job. Therefore, C.H. Robinson argued that preemption applied, not the safety exception. The U.S. Supreme Court did not accept that argument. The Court focused on the meaning of the phrase “with respect to” in the safety exception. The Court held that it means “referring to”, “concerning” or “regarding”. Therefore, writing for a unanimous Court, Justice Barrett concluded that “[r]equiring C.H. Robinson to exercise ordinary care in selecting a carrier therefore “concerns” motor vehicles—most obviously, the trucks that will transport the goods. So, Montgomery’s negligent-hiring claim falls within the FAAAA’s safety exception, which saves it from preemption.” Justice Kavanaugh, in his concurring opinion, noted the effect this ruling may have on freight brokers and their insurers throughout the country: Importantly, the Court's decision today should not be read to mean that brokers will routinely be subject to state tort liability in the wake of truck accidents. As even plaintiff's counsel stressed, brokers should be able to successfully defend against state tort suits if the brokers have acted reasonably and arranged transportation with reputable trucking companies. Tr. of Oral Arg. 27-29. In plaintiff's counsel's words, the brokers "just have to hire carriers that actually have a reasonable policy," and "the broker is not going to have a problem if it's asking the hard questions of the carrier." Id., at 42, 45. In addition, the proximate-cause requirement in typical state tort law should help protect brokers from excessive liability. Id., at 25. That said, the brokers rightly caution against naivete. In the real world, as the brokers forcefully respond, state tort law can be unpredictable, and the costs to brokers of litigation and insurance may be significant even when brokers prevail in lawsuits. Moreover, the costs of litigation and insurance, as well as the costs of brokers' conducting more substantial inquiries into trucking companies, will cascade through the economy and be paid in part by American consumers in the form of higher prices. The concerns expressed by the brokers are legitimate and weighty. The key point here is that freight brokers can no longer claim they are protected from negligent retention claims by the FAAAA (in cases involving interstate transportation). The challenge will be to determine what is considered ”reasonable efforts” used by brokers when retaining transportation companies.