Matt Silbernagel: Florida legislators advance reforms to address lawsuit abuse

by | Feb 1, 2024

In this current legislative session, Florida’s elected leaders are taking a few more steps to curb the crisis in Florida we have come to know as lawsuit abuse.

Up until last year, Florida was listed on the annual “Judicial Hellholes” report produced by the American Tort Reform Association. Under the leadership of Gov. DeSantis and a conservative legislature, Florida passed a legislative package in 2023 that would restore sanity to the legal process and stop some of the frivolous games designed to be a “get rich quick scheme” via lawsuit.

However, the fight in Florida is far from over, and this year, legislators are proposing a collage of statutory improvements that will preserve Florida’s place as an economic powerhouse well into the future. Two of them deserve special mention: House Bill 1179 and Senate Bill 248.

House Bill 1179 is a masterful piece of legislation designed to bring some reasonable regulation to the financing of lawsuits by third parties. Third-party financing may sound like a good idea because it gives some people who may not have the ability to pay for their own expenses during a lawsuit recovery period an opportunity to receive an unsecured loan to keep the lawsuit going.

This benefit comes at a high cost, however. Third-party financiers have engaged in playing the odds by keeping lawsuits going even after a sound decision for the plaintiff would have been to take an offered settlement. Financiers can and have taken over other decisions on the direction of the case, ignoring any considerations for the plaintiff. Financiers can, and have, charged exorbitant interest rates to the point that the plaintiff receives little to nothing from a final settlement or award. Financial third-party funds can and have been set up to even receive funding from international investors, including foreign governments.

The sole idea that international profiteers could be using our court system to attack our small businesses in Florida should be enough to question this system. The proposed legislation would require certain public disclosures about the nature of the financing to the court, limitations on the amount of control a financier can have over a lawsuit, and limitations on the amount of interest a financier can charge a plaintiff. These are all reasonable reforms that should protect plaintiffs and bring transparency to a process that is being abused.

Senate Bill 248 is a piece of legislation that proposes some caps on awards for medical malpractice. Most significant are caps on awards that can be given to plaintiffs for non-economic damages such as pain and suffering awards. These awards have traditionally been used to secure much larger settlements than the actual damages due to some claimed emotional damage.

For instance, if a doctor botches fingernail re-attachment, a jury could award a very small amount for actual economic damage but may simultaneously award a massive amount for a claimed pain and suffering for the disfigurement, even though very minor. Furthermore, in Florida, there have been instances of parents collecting on pain and suffering for the death of a child over the age of adulthood, and there have been instances of adult children collecting on pain and suffering for the deaths of parents.

This legislation does not do away with all claims for non-economic damages, but it does provide reasonable caps that can restore certainty to the medical malpractice insurance system. SB 248, if passed, will be a significant boost for our physician recruitment and retention in Florida. We are currently suffering a massive physician shortage for one reason alone: frivolous lawsuits with massive non-economic damages claims.

By moving forward with these two bills, the legislature will have restored fairness to our courts and have eliminated a couple of the remaining cracks in the foundation of Florida’s economy. Long-standing prosperity will result.

This article is an Op-Ed written by Matt Silbernagel


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