Florida Medical Malpractice Statute Exposes Providers to Excess Judgments

doctor.jpgMedical providers (doctors, hospitals, nurses), aligned, for the most part, with Republican politicians, believing them to be covering their backs, will be surprised to learn that, in a battle between them and medical malpractice insurance companies, they have been stabbed in the back.

Florida Statute 766.1185 (2003) is a safe-harbor statute for medical mapractice insurers. It gives them 210 days after a formal Complaint is served on one of its insureds to avoid having to satisfy an excess (of the policy limits) judgment. If the insurance carrier tenders the policy limits within the 210 days, it is safe from having to pay the excess portion of any judgment.

Although the insurance carrier may be safe, the insured is not. For the carrier to benefit from the safe-harbor statute, it is the tender alone, rather than a tender and acceptance, and thus a release of liability, that matters. The statute does not make acceptance of the tender mandatory. The operative act for carrier protection is the tender.

The rub for the insured medical provider develops because 210 days is a long time for the victim of medical malpractice to sit back and wait to see what the carrier will do. Instead of waiting, victims vigorously prosecute their cases at great time and expense. Carriers, also, will also be aggressive defending cases during this period of time, forcing the victim to insur additional costs. Hence, once the 210 days is reached, it can be too late, in practical terms, for the Plaintiff victim to accept the policy limits, which is often well below the actual damages suffered anyway.

Accordingly, although the carrier is protected by the tender, events within the 210 days prevent the victim from accepting the tender. Without an acceptance, the Defendant medical provider will not be released from the lawsuit. The lawsuit will proceed to verdict and final judgment, frequently in excess of the policy limit amount the carrier is obligated to pay.

Victims who have received excess judgments will seek to collect from the individual defendants and their professional corporations. This is meaningful because, unlike some individuals, medical providers have the personal resources to satisfy excess judgments.

Medical providers have obeyed like sheep the policies put forward by their malpractice insurance carriers and those doing their bidding, Republican politicians, proving that smart people can be duped.

**********************************************

Contact our law firm toll free at 866-785-GALE or by email to learn your rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.