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The Truth about the Patients’ Compensation System

Fellow Medical Society,

You may have received a marketing letter from The Doctor's Company (TDC), most recently known as the First Professionals Insurance Company. The letter indicated a formal legislative position regarding the Patients' Compensation System (PCS).

If PCS becomes law, physicians, dentists and others in the healthcare industry, would never be sued again for negligence. The system will use practicing Florida physicians to determine whether a medical injury has occurred. If so, payments will be paid according to a capped, predictable schedule.

Since it's capped and predictable, you might ask yourself why TDC would align itself with the Florida Academy of Trial Attorneys in opposing this legislation. Since it's capped and predictable, you might think that TDC would support any legislation that gets its customers out of the court room.

However, TDC and trial attorneys are both making huge profits off the backs of Florida physicians. Any elimination of control within the malpractice industry will reduce the 40% profit that MedMal carriers are currently realizing.

The following information includes TDC's comments, along with clarification regarding errors found in the TDC marketing piece:

TDC: While we would like nothing more than to see physicians relieved of the emotional and financial burden the medical tort system places on them, we do not want to see another Patients Compensation Fund of the 1970s and 1980s. That system did not work and its failure created a huge financial burden for healthcare providers. We do not believe, given the problems with PIP, that no-fault is the cure for the current system's problems.

Fact: In the 1970s, the Florida Legislature enacted mandatory mediation panels that were but a stepping stone to civil litigation. That proposal was invalidated by the Florida Supreme Court in 1980. The proposed 2012 Patients' Compensation System and the Patient Compensation System in the 1970s are similar by name only, the mechanics and goals of the two systems are completely different.

TDC: We don't believe that workers compensation is an example of an ideal system worthy of replication. There are exceptions to the workers compensation systems that allow a worker to sue their employer to recover damages. We believe that the Patient Compensation System will also include exceptions that will still allow a physician to be sued. These systems are not inexpensive despite their structure.

Fact: While the Workers' Compensation System (WCS) provides a good example of a legal precedent for a system of this sort, there are significant differences between the two systems. Unlike WCS, PCS is not adversarial or subject to fraud, and there are no exceptions present where physicians can be sued.

TDC: The message from the Charlotte County Medical Society references actuarial reports that indicate a decrease in premium for physicians in Florida. We do not agree with these claims. In fact, we believe the Patients' Compensation System representatives and their actuaries have dramatically underestimated the cost of the system they propose. We believe that their system will actually cost more than the current system. That cost will be placed on the physicians participating in the system.

Fact: The actuarial study conducted by AON, the leading global provider of risk management shows a substantial decrease in premiums (up to 80%) for Florida physicians. The chart featuring your specialty's estimated premiums, including no deductible and unlimited coverage, is available on the Patients for Fair Compensation website.

TDC: While we understand the appeal of a "no-fault" system our defense of physicians is fierce and uncompromising because we know that their professional reputation and personal assets are at stake. As an organization led by doctors, we have a keen understanding of how a malpractice claim can affect a doctor. When a claim is filed our expert defense team, including claims managers, defense attorneys and expert witnesses, immediately engages to relentlessly defend our members. We believe our coverage truly provides "no-fault" protection against frivolous claims.

Fact: The no-fault system ensures that doctors are never sued, forced to settle, submitted to the Data Bank or subject to an adversarial litigation process.

TDC: We believe that the most effective way to reduce claims cost, and as a result physician malpractice premiums, is effective and permanent tort reform. As a result of tort reform passed in Texas in 2003 claims and lawsuits in most counties have been cut in half. Consequently Texas doctors have seen their liability costs reduced an average of 46 percent.

Fact: In states praised for tort reform, like Texas, doctors still believe they can be hauled into court and are aware they are the mercy of the state's Supreme Court. As a result, health care costs are not reduced under tort reform. We need tort replacement.

TDC: Finally, we are very concerned that the legislation promoting the Patients' Compensation System will be used as a vehicle to require that every physician purchase insurance, infringing on their right to choose. Legislation like this has been used in the past as a vehicle to argue for a government run insurance company. Mandatory insurance provided by a government run insurer is a euphemism for a give-away program.

Fact: An opt-out provision has been added to the legislation to allow physicians the choice of entering the Patients' Compensation System where they will no longer have personal financial exposure beyond the cost of their decreased malpractice premiums, or they can choose to continue under the current tort system, maintaining their right to litigation, as well as the right to continue paying their current MedMal carrier or go bare.

Decisions regarding the personal and financial liability of physicians should not be made by those who are financially dependent on doctors being sued. Let the FMA know you support the Patients' Compensation System:

learn more About PCS

Sincerely,
Lee S. Gross, M.D.

Treasurer of the Charlotte County Medical Society
President of the Florida Chapter of Docs4PatientCare

Cell: (941) 812-6944
Fax: (941) 426-9794