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2012 Legislative Session

A Look Back at the 2012 Legislative Session

By Gary M. Farmer Jr.

The 2012 legislative session has come to a close, and once again, the session included a lot of focus on issues relating to the judicial branch. This session was different than most in one key way. This year, the legislature was required to complete its constitutionally mandated, once every ten-year exercise of redrawing the state’s Congressional and legislative boundaries. Following the U.S. Census, states must equal out their districts to have equal numbers of residents. This meant the Legislature convened two months earlier than usual, starting in January instead of March.  In addition, the state budget faced another billion-dollar shortfall, which led to a session very focused on political and fiscal issues.  That being said, the civil justice system had its fair share of battles.

Here are the Highlights:

Medical Malpractice

There were several proposals to radically change medical malpractice laws and make it harder for injured patients to hold their treating physician accountable. There were proposals to extend sovereign immunity for emergency room (ER) doctors, which would mean that taxpayers would be on the hook for malpractice claims. The legislature also tried to enact laws that would make it easier for insurance companies to deny critical diagnostic testing, allow insurance companies to dig into medical records without permission, create a patient’s compensation fund that would limit damages and a draconian proposal that would allow doctors to require their patients to sign arbitration agreements before treatment. All were defeated.

Bad Faith

Several legislators tried to repeal a law in Florida that makes it illegal for insurance companies to treat their clients in bad faith.  Bad faith means not paying insurance money when it is due and owing. Fortunately, this proposal was swiftly defeated.

Standard of Evidence

There was a full-frontal effort by the pharmaceutical industry to force Florida courts to adopt the Daubert standard of evidence, which allows courts to dismiss claims based on a judge’s finding that the expert’s opinion was not published and subject to formal peer review. This was the number two priority of Florida’s business community.  The Senate passed an amended version that was better than the original bill; however, the House did not pass the compromise language.

Auto Insurance Reform

First, there was a real effort to repeal Florida’s personal injury protection (PIP) laws, which are fraught with fraud, and move the state to a mandatory bodily injury insurance state, which is the model in 48 other states. This multi-year effort got more traction than ever before, and has a good chance to become law in the coming years.

That being said, a major overhaul of auto insurance did pass, which will limit the types of medical providers that can treat auto accident victims under PIP. A proposal that would have limited payments to attorneys who fight insurance companies on behalf of hospitals was defeated.

The Judiciary in General

The legislature also considered a number of proposals related to the structure of the judicial branch. These included raising the mandatory retirement age for judges, and a more controversial proposal that would give the governor the power to remove members of the Judicial Nominating Commissions.  While both of these issues received a lot of attention, neither of them passed the legislature.

There will be a proposed constitutional amendment on the 2012 ballot that will seek to enshrine two fairly significant changes to the judiciary. If the amendment passes with 60 percent of the vote in November, the legislature will receive the authority to repeal court rules and will take on the responsibility of ratifying judicial nominations from the governor.  

Property Insurance

The legislature also considered a bill that would have relaxed insurance protections and regulations for potentially thousands of insureds removed from the state-run Citizen’s Property into “surplus lines” policies. Surplus-lines insurance is unregulated as to rates or the forms of the policies.  These policies typically have been reserved for rare or extreme risks that standard, admitted carriers won’t cover. The insurance industry would like nothing better than to keep its antitrust exemption while becoming unregulated. Fortunately, the legislature rejected this bill.

All in all, there were more than 400 bills that could have impacted the civil justice system, and virtually none of them passed.  It was a good year for those who fight to keep the courthouse doors open for consumers.

Now our attention moves to the political process. The Florida Supreme Court has approved new plans to redraw the district maps for the House of Representatives, and is reviewing the Senate map as I write this piece. In the state House, more than 25 percent of the seats will be open, with no incumbent running, and in the Senate, some 30 percent of the chamber is up for grabs.  It will be another crazy election year in Florida, and then back to the trenches in 2013 for what will be another busy legislative session for court issues.

Gary Farmer is a partner in the law firm of Farmer, Jaffe, Weissing, Edwards, Fistos & Lehrman, P.L. He practices consumer litigation. He is a member of The Florida Bar, the United States Court of Appeals for the Eleventh Circuit, and the U.S. District Court, Southern District of Florida. He is a board member of the Broward County Justice Association and president-elect of the Florida Justice of Association. He is also a member of the American Association for Justice.

South Florida Legal Guide Midyear 2012 Edition

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