THE BLOG

Patients, Beware When Doctors 'Go Bare'

01/11/2013 01:06 pm ET | Updated Mar 13, 2013

People are often shocked to learn that unlike most states, Florida allows doctors to practice without medical malpractice insurance. Often, this means that a patient killed or injured by a careless, uninsured physician could potentially be left with little or no compensation for their damages, medical bills and lost wages. Florida requires doctors to have insurance to own and drive a car, but not to perform open heart surgery. After more than 20 years of investigating claims of botched plastic surgeries, misdiagnosed diseases and wrong site procedures, I simply cannot understand this.

Florida doctors routinely escape responsibility for having malpractice insurance simply by posting a little sign in their reception area and setting up an irrevocable line of credit. The sign is supposed to inform patients that the doctor or doctors have no malpractice insurance. Perhaps you have seen one at your own doctor's office? According to Florida's Medical Practice Statute §458.320(7), the sign is required to state the following:

Under Florida law, doctors are generally required to carry medical malpractice insurance or otherwise demonstrate financial responsibility to cover potential claims for medical malpractice. However, certain part-time physicians who meet state requirements are exempt from the financial responsibility law. YOUR DOCTOR MEETS THESE REQUIREMENTS AND HAS DECIDED NOT TO CARRY MEDICAL MALPRACTICE INSURANCE. This notice is provided pursuant to Florida law.

In addition to the sign, uninsured doctors have to obtain an irrevocable line of credit to pay a malpractice claim. The line must be made payable to the doctor upon presentation of a final judgment or settlement. The funds cannot be used for litigation costs or defense attorney's fee. The amount is dependent upon whether or not the doctor performs surgery or enjoys staff privileges at a hospital. Doctors who do not operate or have staff privileges are only required to maintain a line of credit equal to $100,000 per claim or $300,000 per incident. Doctors who operate or have hospital privileges must have a line of $250,000 or $750,000 per incident.

I have sued doctors for more than 20 years. My very first case involved an improperly-performed circumcision on a little boy performed by a first-year resident at a Miami medical school. Thankfully, the doctor was insured and the case resolved. Today, more and more doctors are electing to "go bare." Virtually every lawyer who sues doctors in Florida takes the case on a contingency fee basis, in my experience. That means they will only get paid if and when the case resolves. It also means that the lawyer is responsible for fronting the costs of the investigation and trial. Because uninsured doctors are undesirable defendants for most personal injury lawyers, when any Florida medical malpractice lawyer investigates a potential claim, one of the first questions asked is, "Does the doctor have malpractice insurance?"

A typical medical malpractice claim can cost a Florida lawyer thousands of dollars in time and money to simply conduct their investigation. Not to mention tens of thousands of dollars more to take a case all the way to trial. Lawyers of injured patients cannot simply sue a doctor for malpractice in Florida. First, all medical records, diagnostic films and expert opinions have to be obtained before a lawsuit can be filed. Additionally, patients have to comply with Florida's pre-suit medical malpractice labyrinth -- all within two years of the incident. In the end, no matter what a jury might value the damages to be, it still would be subject to Florida's malpractice caps.

Compare a car accident caused by the very same doctor in the parking lot of the hospital. Imagine he accidentally hits a pedestrian and breaks his leg. To sue this doctor for the injuries, no expert witness or pre-suit protocol is required. Assuming the doctor is in compliance with Florida law, he would have at least PIP insurance to drive his car. A lawsuit could be filed up to four years, twice as long as a medical malpractices claim. And any jury verdict would not be capped.

Convincing a jury that a doctor has committed malpractice is not easy, but collecting from an uninsured doctor is almost impossible, in my experience. Many doctors are often well-schooled in asset protection and have found creative and legal ways to insulate them from collection.

Supposedly, uninsured doctors are required to pay a settlement or judgment, or be subject to disciplinary action or suspension by Florida's Department of Health. But verdicts are often appealed and frequently reversed. And even when a judgment sticks, it can be tied up in a bankruptcy proceeding that could potentially delay payouts for years.

When the father of young children dies suddenly due to medical neglect, it can leave a family emotionally and financially destroyed. Commonly, a desperate family is forced to accept a small settlement. Florida's insurance industry has done a great job in falsely convincing the public that medical malpractice insurance costs have driven doctors out of the state. In the end, it is injured patients and their families who suffer the real consequences of this law.

For more by Spencer Aronfeld, click here.

For more health news, click here.