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The Florida Legislature is in session for 2020, and a senate bill is working its way through the committee process.  The Florida Senate Judiciary Committee is reviewing a proposal to add language to § 768.042, Florida Statutes, that is intended to limit the amount of medical expenses that can be presented to a jury.  SB 1668 is a proposed bill to limit or address the issue of phantom damages regarding past, present and future medical expenses awarded in personal injury cases.

Currently, a claimant or plaintiff is permitted to introduce the total cost of past or current medical expenses even if that is not the amount that was actually paid by the insurance company or the patient.  For example, if a medical bill was originally $1,000.00 but the insurance carrier only paid $500.00, the claimant or plaintiff can present the entire $1,000.00 to the jury and the defendant can ask for a $500.00 set-off after the trial if the claimant or plaintiff prevails at trial.  The benefit for the claimant or plaintiff is that the medical expenses look like they are higher than they really are and if there are higher economic damages, then the jury will award higher noneconomic or general damages, generally speaking.  Most people suggest that a jury awards noneconomic or general damages equal to 3-5 times the amount of economic or special damages.  The difference of the charged medical expenses from the actual incurred medical expenses after contractual write-offs and agreements is considered the “phantom damages” or amount.  As for future damages, the jury is to accept the proposed amounts of medical expenses and not consider whether there will be insurance to cover those damages.  The usual and customary charges are often based on medical providers testifying to the full amount charged and not the reduced amount charged when someone has insurance.  These new additions to § 768.042, Florida Statutes, are intended to address or correct those issues regarding medical expenses. Those supporting this amendment have argued passing this bill will consequently lower the insurance costs and make Florida more business friendly. 

Under the proposed amendment to § 768.042, Florida Statutes, the senate is proposing to add the following language:

"In any claim for damages relating to personal injury to a claimant, evidence regarding the past, present, or future medical expenses must be based on the usual & customary charges in the community where the medical expenses are, or are reasonably probable to be, incurred.  With respect to past and present medical expenses, if the claimant is entitled to be reimbursed through any public or private health insurance or government health coverage, the amounts paid or payable under the insurance or governmental health coverage shall be presumed to be the usual and customary medical charges, unless the claimant shows that such amounts are inadequate under the circumstances.  With respect to damages for future medical expenses, evidence of the availability of private or public health insurance coverage may be considered along with other relevant evidence.  Usual and customary charges may not include increased or additional charges based on the outcome of the litigation."

The Senate is proposing this bill be effective July 1, 2020 if it is passed in both chambers.  This bill would likely have a positive effect on minimizing the damages awarded in personal injury cases in Florida courts.  This bill is an effort to implement tort reform to alleviate some of the financial burdens created by higher legal settlement and jury verdicts from “phantom damages” on Florida businesses.   

The attorneys at Andrews, Crabtree, Knox and Longfellow will be following this bill during the 2020 session so they will be prepared to advise clients on the effects of this new language if it passes in the Florida Legislature.