Florida Tort Reform: Three Key Changes

On Friday, March 24, 2023, Gov. Ron DeSantis signed into law HB 837: Civil Remedies, bringing sweeping tort reform in the state of Florida. In a statement, the governor said, “Florida has been considered a judicial hellhole for far too long, and we are desperately in need of legal reform that brings [Florida] more in line with the rest of the country.” The law introduces significant changes to how lawsuits are litigated in Florida.

Although the new law modifies numerous statutes, this practice point focuses on the changes related to statutes of limitation, comparative negligence, and the admissibility of evidence of medical charges at trial.

The law specifically provides that the shortened statute of limitations applies to negligence causes of action accruing after March 24, 2023. The act otherwise applies to “causes of action filed after the effective date of this act,” which is also March 24, 2023. A flurry of new lawsuits (some estimates exceed 100,000 new filings) arrived in the short time between the Florida Senate passing the law—in a 23–15 vote—and the governor’s signature.

Statute of Limitations

A statute of limitations sets the maximum amount of time after an injury that an aggrieved party may file a lawsuit against a defendant. The new law reduces the statute of limitations for general negligence actions from four years to two years. However, the limitations period for other types of claims—including claims founded on the design, manufacture, distribution or sale of personal property—remains unchanged. The differences in the statutes of limitations could result in garden-variety negligence claims being (improperly) cast as other causes of action to avoid a statute-of-limitations defense for a general negligence claim.

Comparative Negligence

The 1986 Tort Reform and Insurance Act made Florida a “pure comparative negligence jurisdiction” and abolished the doctrine of joint and several liability in most negligence actions. Accordingly, prior to the enactment of the new law, a jury in a typical Florida negligence action would apportion a percentage of fault attributable to a defendant and the court would then enter judgment against the defendant based on the jury’s apportionment of fault. Thus, a defendant would be responsible for their own percentage of fault.

The new law changes Florida’s apportionment standard from a pure comparative negligence approach to a modified comparative negligence approach. Under the new law, if a jury finds that a plaintiff is more than 50 percent at fault for their own harm, then the plaintiff is barred from recovering any damages from any defendant.

Medical Bills Admissible at Trial

The Florida legislature identified several issues of concern related to the transparency of damages in personal injury cases, including:

• The amount paid by the patient (or the health insurer) and accepted by the health care provider as full payment for medical services bears little resemblance to the amount charged on the initial invoice by the health care provider. This could lead to an award of an inflated amount of damages and lead to the perception that plaintiff’s injuries are more severe than they are, which may in turn result in the inflation of other damages, such as pain and suffering or future medical costs.
• Under Collateral Source Rule, as applied in Florida prior to the new law, a plaintiff may introduce into evidence the full amount of their medical bills. In contrast, a defendant may be prohibited from introducing the amounts actually paid and accepted in full satisfaction of those bills.
• Patients and health care providers sometimes enter into a written agreement called a “letter of protection,” which is an agreement to defer collection on a medical bill until the plaintiff recovers in a lawsuit. The provider is then paid from the proceeds of the lawsuit. These letters of protection give a medical provider a financial interest in the outcome of the litigation. Yet, Florida courts have concluded that “the question of whether a plaintiff’s attorney referred him or her to a doctor for treatment is protected by the attorney client privilege.”

The new law regulates the evidence admissible to prove the amount of a plaintiff’s damages for past or future medical care to more closely reflect the actual amounts paid or allowed for the medical expenses and services.