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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.

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Thought Leadership

Appeals Court Reverses Trial Court Order Awarding Attorney’s Fees Due to Lack of Evidence to Support Fee Awarded

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First DCA Reverses Excessive Jury Award Unsupported by the Evidence

In December 2019, the plaintiffs filed a claim with Universal for damages caused by a water and sewage back up through the plumbing system and existing through multiple fixtures including the washing machine drain, kitchen sink, dishwasher, bathtub and toilet. Universal investigated the claim, issued payment for resulting water damage totaling $7,000.00 in actual cash value ($12,000.00 in replacement cost value). The plaintiffs sought additional benefits for work needed to access the below-slab cast iron plumbing system due to the failure of the system from rust, deterioration, corrosion and breaks in the line. Universal denied any additional benefits for access. In 2021, the plaintiffs filed suit. During litigation, Universal sent a plumber to inspect the home and the plumber concluded the pipes were clogged but could be cleaned. The plaintiffs’ plumber testified that the plumbing system needed to be replaced due to holes and openings in the pipes. The plaintiffs introduced two estimates prepared by Triad Restoration services totaling $79,680.22 in replacement cost value and $50,219.97 in actual cash value and an executed contract with another company for repairs with the amounts of repair redacted. Since the insurance policy did not provide coverage for repair or replacement of the plumbing system, the jury only had to decide whether the plumbing system needed to be replaced, and if it did, Universal would owe for the access costs; the jury verdict form required the jury to determine both the replacement cost value and actual cash value amounts. The jury asked if it had to rely on the Triad estimates for their amounts. The trial court advised the amount awarded had to be based on the evidence presented at trial and the law given by the trial court. The jury awarded $335,000.00 in replacement cost value or $305,000.00 in actual cash value. Universal motioned for a new trial arguing the amount awarded was unsupported by the evidence and then moved for remittitur. The trial court denied both motions and this appeal followed. The court found that while a jury’s verdict should only be disturbed with caution and discretion, the trial court must give the properly challenged award close scrutiny and determine whether it bears a reasonable relation to the damaged provided, is supported by the evidence, and could have been reached in a logical manner by reasonable means §768.74(3), (5)(d)-(e), Fla. Stat. The court found the trial court did consider the statutory requirements at the hearing on Universal’s remittitur motion and was concerned about a reasonable relation to the amount of damages proved and injury suffered and whether the award was supported by the evidence, but ultimately denied the motion, reasoning that the jury had been properly instructed to fairly and adequately compensate the plaintiffs. The court noted the only evidence providing the basis for the jury verdict was Triad’s estimates and those valued the plaintiffs' claimed loss at $79,680.22 in replacement cost value and $50,219.97 in actual cash value; no valuation evidence reasonably supported the jury verdict. The plaintiffs argued that the jury was entitled to consider more than the estimates, but the court conveyed the evidence provided did not give the jury a way to reach the amounts they awarded. The court was also not swayed by the plaintiffs’ argument regarding inflation and later price increases, but the court noted that no evidence via the contract, nor testimony regarding increase in labor, material, fuel or construction costs were entered into the record.  The court concluded the jury may draw reasonable inferences from the evidence, but it may not supply a damages number by speculation. The court did not find any of the plaintiffs’ remaining argument persuasive either. The court reversed the denial of Universal’s remittitur motion and motion for new trial as to damaged and remanded the case. The court ended its opinion with advising the trial court must determine whether replacement cost value or actual cash value is the property measure of damages under the policy and order remittitur in an amount consistent with that determination and the evidence.

Thought Leadership

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The plaintiff filed a claim for damage as a result of Hurricane Ian. It claimed damages were over $24 million, but the carrier accepted partial coverage and paid $8,307.49 for secondary components. The carrier found hurricane damage to the building, but it was below the insurance policy’s $3.6 million deductible. The plaintiff sued for breach of the insurance policy. The carrier argued in a motion for summary judgment that plaintiff could not recover replacement cost value (RCV) because the property repairs had not been effectuated. The policy provided for RCV, but only after the repairs were completed. The carrier argued that because the repairs were not completed, the plaintiff was not entitled to RCV damages. The plaintiff argued the carrier could not withhold the actual cost value (ACV) due, which was the main allegation of the lawsuit, then fault it for not making the repairs to unlock the RCV. The United States District Court for the Middle District of Florida rejected the carrier’s argument, finding that when an insurer allegedly breached the policy by withholding coverage, it could not hide behind a repair-contingent provision to block the insured from RCV damages at trial. The court found the issue to be whether the contractual language designed to preclude certain coverage until after repairs are completed barred an insured from seeking those damages at trial when repairs were not complete. The court noted the Eleventh Circuit had not resolved this issue and neither side pointed to a definitive answer from the Florida Supreme Court. The court reasoned that it must look to the Sixth District Court of Appeal (6th DCA), which is the court which would have heard this case if it was in state court. The court noted the 6th DCA recently addressed this issue in Universal Prop. & Cas. Ins. Co. v. Rodriguez, 427 So. 3d 676 (Fla. 6th DCA 2026). The Rodriguez Court found that a breach of contract action is designed to adjudicate not only whether the contract was breached, but also evaluate the damages incurred had the breach not occurred, which the Rodriguez court found to be recovery of the RCV. This court also noted basic Florida contract principles compelled the same result, as a material breach frees the nonbreaching party to suspend its own performance and can demand the full benefit of its bargain, including RCV damages. Finally, the court found the distinction between a full denial and partial denial did not compel a different result. It found the policy required the carrier to acknowledge coverage and pay ACV for all covered damages, and the failure to do that is a material breach, entitling the insured to all of the damages available under the contract, which included the RCV.