USA – FLORIDA Trends and Developments Contributed by: Melissa Sims and Patrick Betar, Berk, Merchant & Sims
in court. As defined by Florida statute, a letter of pro- tection is “any arrangement by which a healthcare 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”. In practice, these arrangements often led claimants to bypass their health insurance or avoid paying out of pocket right away. However, because the provider was no longer billing through an insurer, they could set their own rates − typically at a much higher rate than what an insurance company would have negoti- ated. As a result, plaintiffs could present these inflated charges at trial, even though they bore little resem- blance to usual and customary billing practices in the medical community. Under the new law, if a plaintiff has health insurance but chooses instead to fund care through a letter of protection, only evidence of the amount the insurer would reimburse for medical services is allowed into evidence − not the inflated rates the medical provider unilaterally set in the letter of protection. If the plaintiff does not have health care coverage, then evidence of 120% of the Medicare reimbursement rate or 170% of the applicable state Medicaid rate (if there is no applicable Medicare rate) is admissible at trial. In effect, this portion of the tort reform closes a long- standing loophole that allowed exaggerated medi- cal costs to drive up verdicts and potentially result in windfalls for the injured party. The Legislature has amended the statues to ensure damages more accu- rately reflect the true value of the care the injured party received. What impact do the tort reforms have on strategic considerations? The goal of these tort reforms is both to have tangible implications for commercial liability insurance premi- ums and to assist Florida businesses in evaluating risk and liability. By shortening the time a potential claim can linger prior to suit and eliminating recovery where an injured party is more than 50% responsible for their injury, the tort reforms create a more predicable litigation environ-
ment and eliminate the potential for residual claims. The reforms also demand that businesses review and streamline their procedures related to handling injury and negligence claims. A concentrated effort on the front end of the incident − evaluating, retaining nec- essary experts, and engaging liability carriers − can significantly assist later in the defence of a lawsuit. One of the more intriguing aspects of the 2023 tort reforms is the creation of a new statute establishing a rebuttable “presumption against liability” for cer- tain negligent security claims brought against owners and operators of multi-family residential properties. In essence, if property owners can show that they have substantially implemented a defined set of safety measures outlined in Section 768.0706, they are pre- sumed not liable for criminal acts committed by third parties on the premises − unless that presumption is overcome by contrary evidence from the plaintiff. The statute spells out in detail what qualifies as ade- quate security measures. These include: • the installation of security cameras at all points of entry and exit, with footage retained for at least 30 days; • sufficient lighting in parking lots that meets a speci- fied brightness standard from dusk to dawn; • one-inch deadbolt locks on every dwelling door; • functional locking devices on all windows and exterior sliding doors; • locked gates with key or fob access around pool areas; and • peepholes or door viewers on unit doors that lack adjacent windows. Although the list may appear exhaustive, most of these measures reflect basic, commonsense secu- rity practices that many properties already employ. However, the new law formalises these standards and attaches a meaningful legal benefit to compliance. Property owners who fail to meet these requirements could find themselves without the statute’s protective presumption − potentially exposing them to significant liability in the event of an incident. Because of that, this part of the tort reform represents both a warning and an opportunity. Those who act quickly to audit and upgrade their properties in accordance with Sec-
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