Frank Maderal, M.D. - Dade County Medical Association
Frank Maderal, M.D. - Dade County Medical Association
Frank Maderal, M.D. - Dade County Medical Association
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Enrique Hanabergh, M.D.<br />
President-Elect<br />
Aurelio Mitjans, M.D.<br />
Vice President<br />
August 2009<br />
The Official Publication of the <strong>Dade</strong> <strong>County</strong> <strong>Medical</strong> <strong>Association</strong><br />
LOOK WHAT’S INSIDE:<br />
Message from your New President . . . . . . . . . 3<br />
<strong>Medical</strong> Information Technology . . . . . . . . . . . 5<br />
Board of Medicine 2009<br />
Legislative Session Highlights . . . . . . . . . 12<br />
Recent Challenges to Caps<br />
on Non-Economic Damages . . . . . . . . . . . . 13<br />
<strong>Frank</strong> <strong>Maderal</strong>, M.D.<br />
President, <strong>Dade</strong> <strong>County</strong> <strong>Medical</strong> <strong>Association</strong><br />
Beny Rub, M.D.<br />
Secretary<br />
Elizabeth Etkin-Kramer, M.D.<br />
Treasurer<br />
Bernd Wollschlaeger, M.D.<br />
Immediate Past President
EXCLUSIVE DCMA MEMBERS ONLY BENEFIT PROGR AM<br />
DCMA Attorney Referral Program<br />
With the assistance of our General Counsel, J.A. Ziskind, a group of prominent specialty and many board certified attorneys who regularly<br />
represent medical professionals has agreed to provide counsel to DCMA Members. Not only have we sought a group of the most competent<br />
attorneys in their specialty but the individual lawyers have agreed to a twenty-five percent (25%) professional courtesy discount off of their normal<br />
hourly rate. If you have suggestions on adding any other specialty areas please contact us and we will fill that need.<br />
This is a unique program and will prove successful to the extent our Members utilize this program. Below is the list of attorneys who are on<br />
the panel, including their specialty and telephone numbers. If you have any questions or comments on this program, please do not hesitate to<br />
contact J.A. Ziskind, Esq. at (305) 577-4888.<br />
MEDICAL MALPR ACTICE DEFENSE<br />
John F. Eversole, III, Esq. (305) 670-4777<br />
Bruce Yegelwel, Esq. (305) 858-2706<br />
David Dittmar, Esq. (305) 442-4333<br />
INSOLVENCY, HEALTH CARE AND CORPOR ATE LAW<br />
<strong>Frank</strong> P. Terzo, Esq. (305) 416-6880<br />
CRIMINAL LAW<br />
Jeffrey Weiner, Esq. (305) 670-9919<br />
Edward Shohat, Esq. (305) 358-7000<br />
FAMILY LAW<br />
Stanley Newmark, Esq. (305) 670-7826<br />
REAL ESTATE LAW<br />
Terrance Mullin (305) 358-1101<br />
Mark Rivlin (305) 661-4600<br />
THE HIRING OF AN ATTORNEY IS AN IMPORTANT DECISION THAT SHOULD<br />
NOT BE BASED SOLELY ON ADVERTISEMENTS.<br />
TRUSTS, WILLS and ESTATE PLANNING<br />
Terrance Mullin (305) 358-1101<br />
Kenneth I. Arvin (305) 577-4888<br />
HEALTH CARE and CORPOR ATE LAW<br />
Lewis Fishman, Esq. (305) 670-2100<br />
J.A. Ziskind, Esq. (305) 577-4888<br />
Kenneth I. Arvin (305) 577-4888<br />
DEPARTMENT OF HEALTH and AHCA DEFENSE LAW<br />
Mark Dresnick, Esq. (305) 670-9800<br />
LABOR and EMPLOYMENT<br />
Chad K. Lang, Esq. (305) 808-2103<br />
William R. Radford, Esq. (305) 808-2134<br />
PATENT/TR ADEMARK/COPYRIGHT<br />
Robert M. Schwartz., Esq. (954) 924-0707<br />
BEFORE YOU DECIDE, ASK THE ATTORNEY TO SEND YOU FREE WRITTEN<br />
INFORMATION ABOUT THEIR QUALIFICATIONS AND EXPERIENCE.
<strong>Frank</strong> R. <strong>Maderal</strong>, M.D.<br />
President, <strong>Dade</strong> <strong>County</strong> <strong>Medical</strong> <strong>Association</strong><br />
It is tough to be a solo practitioner today especially if you are in<br />
primary care. Medicare has fixed prices that pay poorly and<br />
managed care which is dominant in <strong>Dade</strong> <strong>County</strong> dictates your<br />
reimbursements.<br />
It’s hard to understand why there are no primary care groups in<br />
<strong>Dade</strong> <strong>County</strong>. If primary care doctors could come together, and<br />
group a large number of patients, they could negotiate better<br />
reimbursement from Medicare Advantage plans and Managed Care<br />
payers and they could collectively pay for a competent administrator,<br />
EMR system and other equipment to grow their practice. Specialists<br />
have formed successful groups but none in primary care.<br />
Businessmen have formed provider groups and hospitals are putting<br />
doctors together but we all know who will benefit from those<br />
arrangements.<br />
To start a group you need physician leadership; one or a few doctors<br />
that need to stay involved. To simply hire a lawyer or an accountant<br />
or an administrator to put things together is like a hole in the ocean<br />
where you throw away your money. It’s easier to start with two or<br />
three doctors and slowly add others once the rules are set rather than<br />
try to bring ten or twelve together at once.<br />
Physicians leadership is the most important component; all successful<br />
groups have strong physician leaders and whether it’s one or an<br />
executive committee which runs the group, compensation for<br />
management time is fair and necessary.<br />
To form a legal group different offices can stay independent as cost<br />
centers with only a common billing and payroll. They need to come<br />
together with common Medicare and tax ID numbers. For peace of<br />
mind it could be set up to be easy in and easy out, in case someone<br />
wants to leave the group. The group can outsource to a billing<br />
company which can now provide management software and even<br />
EMR at a monthly charge with little upfront investment. It would<br />
MESSAGE from your PRESIDENT:<br />
by <strong>Frank</strong> R. <strong>Maderal</strong>, M.D.<br />
How Primary Care<br />
Practices Can Survive<br />
all be web based; no need to own software and hardware which<br />
quickly becomes antiquated. Human resources can also be outsourced<br />
so really the group could function with just an administrator as an<br />
umbrella uniting the different practices. Each practice (Care Center)<br />
determines their salaries, hours, office décor, etc. Income would be<br />
assigned to the corresponding practice minus their percentage of the<br />
central overhead cost which could be minimal depending on set up.<br />
Doctors are poor supervisors of personnel so any outsourcing is a<br />
good thing. Income will improve with better billing, collection and<br />
eventually better contracting. Pooled money would make it easier for<br />
new opportunities.<br />
The worst scenario for primary care is the status quo where solo<br />
practitioners have no negotiating clout, overwhelming responsibilities<br />
and uncertain future. Few new doctors want solo practices so<br />
they are looking to form groups.<br />
The group environment takes a lot of stress out of the practice allowing<br />
the physician to enjoy his practice more. Doctors within the<br />
group don’t even have to cover themselves for the groups to<br />
function.<br />
There are multiple attorneys and consultants who have done this<br />
work numerous times and can advise about what to emulate and<br />
what to avoid based on the experience of groups previously formed.<br />
The DCMA wants to point out opportunities and provide information<br />
to our members. We can provide advice and suggest resources.<br />
The more secure our doctors are the better we are as an <strong>Association</strong>.<br />
We plan to provide useful information regarding the current health<br />
care debate and practice management topics in upcoming issues of<br />
Miami Medicine and at the moment via e-mail.<br />
<strong>Frank</strong> R. <strong>Maderal</strong>, M.D.<br />
President, <strong>Dade</strong> <strong>County</strong> <strong>Medical</strong> <strong>Association</strong><br />
MIAMI MEDICINE ✚ August 2009 3
4<br />
DISABILITY INSURANCE<br />
CLAIMS AND DISPUTES<br />
John Jacob Spiegel, Esq., AV rated with 22 + years experience, is<br />
available to assist claimants and their families who seek disability<br />
benefits in all types of disability policies; individual, group, ERISA,<br />
and others. Disability claims are often complex and contested.<br />
Early legal representation is highly recommended.<br />
• Policy review and analysis<br />
• Pre-claim consultation<br />
• Claim assistance, including ghost writing<br />
• Claim monitoring<br />
• Claim dispute resolution<br />
• ERISA mandated presuit “appeals”<br />
• Trial, Litigation and Appeals<br />
John J. Spiegel, P.A.<br />
Concord Building, 9th Floor, 66 West Flagler Street, Miami, FL 33130<br />
Phone: (305)539-0700; Fax: (305)539-1894<br />
E-Mail: JSpiegel@bellsouth.net<br />
MIAMI MEDICINE ✚ July 2009
Bernd Wollschlaeger, M.D., FAAFP, FASAM<br />
In my last article I discussed the health IT provisions in the American<br />
Recovery and Reinvestment Act (ARRA) which are designed to<br />
promote and provide incentives for the adoption of certified EHRs.<br />
I emphasized in the article that physicians who demonstrate the meaningful<br />
use of a certified EHR will be eligible for up to $44,000 each in<br />
incentive bonus payments, in addition to Medicare and Medicaid<br />
reimbursement, provided that they implement such a technological<br />
solution by January 1, 2011.<br />
I admonished the Certification Commission for Healthcare Information<br />
Technology (CCHIT) to define what the term “certified EHRs” really<br />
means. I was especially concerned that the current certification system<br />
favors established and certified vendors posing insurmountable obstacles<br />
for smaller and emerging product developers, even though those may offer<br />
a better and more cost-effective product! Well, in a surprise move during a<br />
public meeting, CCHIT announced on June 17th a substantial revision of<br />
their certification approach and proposed three EHR certification pathways:<br />
• EHR-C: Certified EHR Comprehensive<br />
• EHR-M: Certified EHR Module<br />
• EHR-S: Certified EHR Site<br />
The EHR-C is the same certification that CCHIT has been doing since its<br />
inception. Unfortunately, the current certification process may mislead<br />
doctors to believe that a certified EHR is better and safer! This may not be<br />
the case at all! Quite frequently EHR vendors inflate their software with<br />
“certified” and often redundant features, to be able to claim that they were<br />
certified. Needless to say, many of those “certified” products are useless in<br />
the clinical practice! Furthermore, a considerable number of CCHIT certified<br />
EHR companies are going under leaving physicians behind desperately<br />
seeking new IT solutions. It is likely that the current EHR-C certification<br />
could be changed, added to, or modified in order to meet the<br />
ARRA requirements.<br />
The EHR-M certification is where CCHIT will certify certain modules<br />
from a software vendor. CCHIT plans to combine and develop those criteria<br />
to decide which modules will be certified. For example, an EHR vendor<br />
TECHNOLOGY<br />
<strong>Medical</strong> Information Technology<br />
Your Monthly IT Guide since 1995!<br />
Certified Electronic Health Records:<br />
Regulators Change Of Heart<br />
Provides New Opportunities<br />
could choose to just get e-Prescribing EHR-M certified. Thereby, the use<br />
of this EHR component could qualify for ARRA incentives. With EHR-M,<br />
vendors can focus on one specific component of the EHR-C certification<br />
and make sure it works. This process will probably be much cheaper and<br />
will allow small companies to get their products certified.<br />
The EHR-S category represents the most interesting and exciting new<br />
component addressing the home grown EHR system market and the<br />
so-called open-source program providers. The EHR-S certification is essentially<br />
where CCHIT will certify a site (organization, hospital, clinic) to<br />
show that they meet the various ARRA requirements. The EHR-S certification<br />
only certifies that the site meets the ARRA requirements and not<br />
necessarily that the software that site is using meets the requirements!<br />
Basically, the EHR-S certification tries to certify that a site is using an<br />
EHR to the ARRA requirements. This certification is a potential win-win<br />
solution for small group practices or hospital systems that have a mixture<br />
of all sorts of uncertified systems, but have the required functionality.<br />
In summary, it is clear now that CCHIT is transitioning its timelines to<br />
adapt to the new requirements of the stimulus law (ARRA/HITECH) as<br />
well as the still-emerging work processes of the Office of the National<br />
Coordinator (ONC/HHS) and its two advisory committees. Therefore,<br />
there will not be a 2009 certification program! According to the CCHIT<br />
website they intend to launch the 2011 ARRA certification in the Fall of<br />
2009. The correlation between the 2009 criteria and the 2011 ARRA<br />
criteria will depend on decisions yet to be made by ONC and the two<br />
advisory committees. These new criteria will open the EHR market for a<br />
fair competition of small and large vendors and will level the playing field.<br />
This will help physicians to obtain cost-effective, functional and certified<br />
EHR products that meet their professional and financial needs.<br />
I look forward to reading your comments and suggestions on our<br />
blog at http://miamimedblog.blogspot.com/ or send me a twit at<br />
http://twitter.com/dadedoc.<br />
Disclosure: The author is a practicing family physician, addiction specialist<br />
and computer consultant. In addition, he is a founder and managing<br />
partner of VirtualMed,LLC (www.virtualmed.com)<br />
By Bernd Wollschlaeger, M.D., FAAFP, FASAM<br />
MIAMI MEDICINE ✚ August 2009 5
BENEFITS ONLY FOR MEMBERS OF<br />
THE DADE COUNTY MEDICAL ASSOCIATION<br />
PROMED PERSONNEL SERVICES PROVIDING TEMPORARY AND PERMANENT STAFFING SERVICES<br />
10% DISCOUNT ON TEMP RATES<br />
25% DISCOUNT ON TEMP-TO PERM<br />
33% DISCOUNT ON PERM RATES<br />
ProMed Personnel is a temporary and permanent staffing agency devoted solely to fulfilling the staffing needs of the<br />
healthcare industry. We pride ourselves in the ability to simplify the staffing process and provide services based upon<br />
your specific requirements. We provide temporary and/or permanent employees to hospitals, laboratories, HMO’s,<br />
healthcare consultants and both individual physicians and multi-doctor practices. Our staffing services include (but<br />
are not limited to):<br />
• RECEPTIONIST • SECRETARIES • BILLERS/CODERS • CLERKS • MEDICAL ASSISTANTS/PHLEBOTOMISTS<br />
• TRANSCRIBERS • OFFICE MANAGERS • RN’’s/LPN’s • PA’s/NP’s • SOCIAL WORKERS (BSW/MSW)<br />
• MENTAL HEALTH/ CASE MANAGEMENT • QUALITY ASSURANCE • BILINGUAL STAFF<br />
FOR MORE INFORMATION ON OUR ARRAY OF SERVICES, CONTACT:<br />
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Introducing the Next Best Thing for<br />
<strong>Dade</strong> <strong>County</strong> <strong>Medical</strong> <strong>Association</strong> Members!<br />
The <strong>Dade</strong> <strong>County</strong> <strong>Medical</strong> <strong>Association</strong> is pleased to endorse<br />
the “next best thing” - through OptaComp, formerly Comp<br />
Options, DCMA members can now receive money back<br />
on your workers’ comp premium with a potential<br />
dividend of 24.8% of your premium. The program is<br />
offered by Danna-Gracey, an independent insurance agency<br />
with a team of specialists dedicated solely to insurance<br />
coverage placement for Florida’s doctors. Money back from<br />
your insurance premium – it’s the greatest thing since<br />
sliced bread!<br />
For more information on this DCMA endorsed workers’<br />
compensation insurance program through OptaComp,<br />
please call Tom Murphy at 800.966.2120.<br />
ENDORSED BY THE<br />
• DADE COUNTY MEDICAL ASSOCIATION •<br />
Delray: 54 SE Sixth Avenue, Delray Beach, FL 33483 • 800.966.2120 • Fax 888.235.5008<br />
Orlando: 541 Lake Como Circle, Orlando , FL 32803 • 888.496.0059 • Fax 407.896.0079<br />
info@dannagracey.com • www.dannagracey.com
Congratulations!<br />
Baptist Health salutes<br />
gastroenterologist<br />
<strong>Frank</strong> <strong>Maderal</strong>, M.D.<br />
on his upcoming term as<br />
President of the <strong>Dade</strong> <strong>County</strong><br />
<strong>Medical</strong> <strong>Association</strong>.<br />
Committed to our faith-based charitable mission of medical excellence<br />
Visit us at www.baptisthealth.net
DaDe <strong>County</strong> MeDiCal assoCiation<br />
DCMA President, <strong>Frank</strong> R . <strong>Maderal</strong>, M .D . receives his gavel<br />
from Bernd Wollschlaeger, M .D ., Immediate Past-President .<br />
DCMA President <strong>Frank</strong> R . <strong>Maderal</strong>, M .D . being<br />
presented a proclamation by Carlos Hernandez,<br />
on behalf of the City of Hialeah .<br />
George Battle, M .D ., Patricio Rossi, M .D . and Ignacio<br />
Rua, M .D . converse during the cocktail hour .<br />
<strong>Frank</strong> R . <strong>Maderal</strong> with his parents, Mr . and Mrs . Francisco<br />
<strong>Maderal</strong>, Sr .<br />
<strong>Frank</strong> R . <strong>Maderal</strong>, M .D . with his daughter Laura, and his sons<br />
Daniel and <strong>Frank</strong> Jr .<br />
FMA President, Steven West, M .D ., DCMA President,<br />
<strong>Frank</strong> R . <strong>Maderal</strong>, M .D ., DCMA Immediate Past President,<br />
Bernd Wollschlaeger, and Wayne Carter from the Miami-<br />
<strong>Dade</strong> <strong>County</strong> Office of the Mayor and Board of <strong>County</strong><br />
Commissioners, who presented <strong>Frank</strong> R . <strong>Maderal</strong>, M .D .<br />
with a proclamation on behalf of Mayor Carlos Alvarez .<br />
Attendees of the annual banquet, dancing the night away!<br />
Bernd Wollschlaeger,<br />
M .D . is inducted into the<br />
DCMA Past Presidents<br />
Council by DCMA Past-<br />
President Nelson L .<br />
Adams, M .D .<br />
President <strong>Frank</strong> R . <strong>Maderal</strong>, M .D . with Immediate<br />
Past President, Bernd Wollschlaeger, M .D .<br />
holding a proclamation from the City of Coral<br />
Gables and the City of Miami .
2009 Presidential Installation Banquet and Dinner<br />
Newly installed DCMA President <strong>Frank</strong> R . <strong>Maderal</strong>, M .D . gives his<br />
incoming speech .<br />
Charles Dunn, M.D.<br />
1982<br />
Miguel A. Machado, M.D.<br />
1997<br />
Carlos Buznego, M.D.<br />
2001<br />
Alfonso Icochea, M .D .<br />
accepts plaque from<br />
Immediate Past-<br />
President, Bernd<br />
Wollschlaeger, M .D ., on<br />
behalf of Mercy Hospital<br />
<strong>Medical</strong> Staff .<br />
Richard Simon, M .D .<br />
accepts plaque from<br />
Immediate Past-<br />
President, Bernd<br />
Wollschlaeger, M .D ., on<br />
behalf of Baptist Health<br />
South Florida .<br />
Andre Abitbol, M .D .<br />
accepts plaque from<br />
Immediate Past-<br />
President, Bernd<br />
Wollschlaeger, M .D ., for<br />
his service on the DCMA<br />
Board of Directors .<br />
Patricia Sechi, Associate<br />
Administrator, accepts<br />
plaque from Immediate<br />
Past-President, Bernd<br />
Wollschlaeger, M .D ., on<br />
behalf of North Shore<br />
<strong>Medical</strong> Center .<br />
Past Presidents<br />
The following DCMA Past Presidents Attended the “2009 Annual Installation Banquet.”<br />
George F. Battle, M.D.<br />
2003<br />
Nelson L. Adams, M.D.<br />
2007
<strong>Dade</strong>3.qxp 5/5/2009 9:50 AM Page 1<br />
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Board of Medicine<br />
2009 Legislative Session Highlights<br />
Below is a summary of bills signed by the Governor following the<br />
2009 Legislative Session that may affect your Florida license. Be sure<br />
to go to http://www.leg.state.fl.us/statutes/index.cfm and read more<br />
details concerning these new laws.<br />
• SB 462 – This bill requires the Department of Health,<br />
when funds are available, to develop a comprehensive<br />
electronic database system for the purpose of controlled<br />
substance prescription drug monitoring. This bill also<br />
requires registration of certain clinics that perform pain<br />
management. The Board plans to conduct rule workshops<br />
in the near future. Be sure to go to the Board of<br />
Medicine’s web page at: www.FLHealthSource.com to<br />
stay abreast of the law and future workshops. This bill<br />
was signed by the Governor on June 18, 2009.<br />
• SB 720 – This bill requires the Board of Medicine to<br />
review entities previously approved by the Board to<br />
grant board certification in Dermatology every three<br />
years. This bill also lifts the requirement for physicians<br />
to co-sign charts written and prepared by physician<br />
assistants. In addition, this bill lifts certain limitations<br />
on ARNP’s and PA’s solely performing hair removal<br />
with lasers. The Council on Physician Assistants will be<br />
meeting in August to repeal rules relating to co-signature<br />
of medical records. This bill was signed by the<br />
Governor on June 16, 2009.<br />
• HB 387 – This bill provides for an increase in the<br />
number of medical faculty certificates permitted at<br />
institutions. This bill was signed by the Governor on<br />
June 1, 2009.<br />
• SB 1986 – This bill primarily deals with reducing<br />
Medicaid fraud. It also requires the Board to deny licensure<br />
or to revoke licensure of an individual, with certain<br />
felony health care fraud convictions. The bill also<br />
outlines four new disciplinary violations and requires<br />
the Department of Health to work with the Agency for<br />
Health Care Administration to prosecute physicians<br />
who have not remitted amounts owed to the state for<br />
overpayments. This bill also exempts sleep related testing<br />
facilities from the patient self referral act. This bill<br />
was signed by the Governor on June 24, 2009.<br />
• SB 2188 – This bill concerns Administrative Procedures.<br />
New procedures include a requirement that Boards with<br />
electronic agendas place copies of the public agenda<br />
materials on their web site at least 7 days prior to the<br />
meeting. It also requires the Boards to place a copy of<br />
their meeting notices on the web site. This bill was<br />
signed by the Governor on June 16, 2009.<br />
As you can see, there are significant changes this year. Also, please<br />
understand there are other laws enacted that are not highlighted in<br />
this letter. It is important that you take a few minutes to go to the<br />
web site listed above and read these new laws as well as any others<br />
that might pertain to your specific practice type to ensure you are<br />
practicing in compliance and that your patient’s continue to receive<br />
quality health care.<br />
Where do you find the laws and rules?<br />
Florida Statutes (laws): http://www.leg.state.fl.us/statutes/index.cfm<br />
Florida Administrative Code (Rules): http://www.leg.state.fl.us/<br />
statutes/index.cfm<br />
You can subscribe and unsubscribe for a no-cost, automatic e-mail of<br />
every new item put on the Board website by going to this web site:<br />
http://flems.doh.state.fl.us/mailman/listinfo/boardofmedicine<br />
Author:<br />
Crystal A. Sanford, CPM<br />
Program Operations Administrator<br />
Florida Board of Medicine
The Florida legislature enacted a law in<br />
September 2003 to place caps on noneconomic<br />
damages in medical malpractice<br />
cases. For Florida physicians, the success of<br />
the passage of this tort reform measure has<br />
had positive benefits in the form of lower<br />
medical malpractice insurance rates and a<br />
reduction in the number and severity of<br />
claims.<br />
Non-Economic Caps<br />
Caps on non-economic damages in all Florida<br />
court cases involving injury or death due to<br />
medical negligence is $500,000 - regardless<br />
of the number of defendants – in suits against<br />
health care practitioner defendants (physicians<br />
and surgeons) and $750,000 per claimant in suits again non-practitioner<br />
defendants (hospitals and other non-physicians).<br />
The court can decide to exceed these caps in certain circumstances. In cases<br />
of catastrophic injury or negligence which results in a permanent vegetative<br />
state or death, a patient may recover up to $1 million and $1.5 million,<br />
respectively.<br />
For any type of injury resulting from emergency care, the law caps noneconomic<br />
damages at $100,000 per claimant, but not to exceed $300,000<br />
for all claimants, in suits against practitioner defendants and $750,000 per<br />
claimant, but not to exceed $1.5 million for all claimants, in suits against<br />
non-practitioner defendants.<br />
Benefits of Tort Reform to<br />
Florida Physicians and Their Patients<br />
The award limits established by the 2003 tort reform law are advantageous<br />
to the quality of health care in this state, because they help control the<br />
severity of claims filed against doctors. The caps were set to help ensure<br />
accessible, quality health care in Florida for all patients.<br />
Tort reform helps protect qualified doctors from exorbitant judgments that<br />
may drive them out of the state, and even out of practice. Specialists are<br />
more likely to accept complex cases when the threat of a significant verdict<br />
is minimized. Losing good doctors benefits no one.<br />
Current Court Challenges<br />
Caps on non-economic damages are facing opposition in the Florida court<br />
system. Recent cases, including the two mentioned below, have challenged<br />
the constitutionality of the tort reform that was enacted in 2003. Based on<br />
cases that are pending in the appellate courts, there is a strong likelihood<br />
that a decision of the appellate court (for either a plaintiff or defendant)<br />
regarding the constitutionality of non-economic damage caps will eventually<br />
be appealed to the Florida Supreme Court for their review by the loser.<br />
In Nadine Raphael vs. James Shecter & Emergency Physician, etc., the jury<br />
returned an award for the plaintiff on August 30, 2007 in the amount of<br />
$783,119 in economic damages and $9,500,000 in non-economic damages.<br />
The total award was $10,283,119. The lawyer for the physician defendant<br />
petitioned the trial judge to apply the non-economic damage cap to the<br />
verdict. The plaintiff ’s lawyer argued to the trial judge that the cap was<br />
unconstitutional and urged the judge to not to apply the cap.<br />
On September 14, 2007, the judge ruled that the $150,000 non-economic<br />
damage cap governing emergency room cases was constitutional. The judge<br />
entered an order reducing the $10,283,199 award to a total of $845,119,<br />
which included some adjustment to the economic losses that had nothing<br />
to do with the application of the non-economic damage cap.<br />
“Recent Challenges to Caps<br />
on Non-Economic Damages”<br />
By Robert E. White, Jr.<br />
President, First Professionals Insurance Company<br />
The plaintiff filed an appeal of the ruling regarding the cap on February 4,<br />
2008 to the Fourth District Court of Appeal. The case has been briefed by<br />
the parties and is set for oral argument on July 7, 2009. The Fourth District<br />
could rule on the constitutionality of the emergency room as early as late<br />
summer or in the fall of 2009. Regardless of what happens in the Fourth<br />
District, the losing side will appeal the ruling to the Florida Supreme<br />
Court.<br />
A ruling from the Florida Supreme Court may take as long as 18 to 24<br />
months after the Fourth District ruling. The end result is that it could be<br />
2011 (or eight years after the cap was passed) before a definitive ruling on<br />
the issue.<br />
Another case currently working its way through the Florida courts is Daniel<br />
Weingrade, M.D., vs. Kimberly Ann Miles and Jody Haynes. The result of this<br />
case was a $1 million judgment against the defendant after the $500,000<br />
cap was applied.<br />
On April 7, 2008 a Miami-<strong>Dade</strong> <strong>County</strong> jury returned a verdict for the<br />
plaintiff in Miles v. Weingrad for $16,104 in economic loss and $1,500,000<br />
in non-economic loss for a total verdict of $1,516,104. The trial judge<br />
reduced the non-economic portion of the loss from $1,500,000 to $500,000<br />
making the total judgment entered against the doctor $516,104. This case<br />
was appealed and is in the briefing stages in the Third District Court of<br />
Appeal. It will be set for oral argument some time later this year.<br />
Florida <strong>Medical</strong> Malpractice Trends<br />
Florida is one of the most litigious states in the country. Knowledge of the<br />
medical malpractice industry is critical for physicians in the state. Florida<br />
was ranked 42nd in the U.S. Chamber’s Institute for Legal Reforms 2008<br />
State Liability Systems Ranking Study and 50th in Pacific Research<br />
Institute’s 2008 U.S. Tort Liability Index. South Florida was ranked the<br />
#1 Judicial Hellhole by the American Tort Reform Foundation. These<br />
rankings were awarded during a nearly five-year span of relative malpractice<br />
calm which recently came to an abrupt halt in Florida. Since November of<br />
2007, juries in four separate trials returned plaintiffs verdicts of over $30<br />
million each. This is the highest concentration of such large verdicts to ever<br />
occur in Florida. Unfortunately, large verdicts like these tend to attract more<br />
lawsuits.<br />
With the increase of these substantial plaintiff awards, it is essential that the<br />
tort reform package that passed in 2003 survives the expected constitutional<br />
challenge. As the largest and longest-serving medical malpractice insurer in<br />
Florida, First Professionals Insurance Company is committed to its partnership<br />
with Florida physicians. We will continue to support physician organizations<br />
in their efforts to protect the progress made almost six years ago<br />
with the passage of caps on non-economic damages.<br />
Summary<br />
The award limits established by the 2003 tort reform law are advantageous<br />
to the quality of health care in this state, because they help control the<br />
severity of claims filed against doctors. The limits apply only to noneconomic<br />
or punitive damages, not compensatory damages. It is essential<br />
that the caps on non-economic damages survive current and future constitutional<br />
challenges to provide maximum protection for both patients and<br />
physicians.<br />
The information contained herein does not establish a standard of<br />
care, nor is it a substitute for legal advice. The information and suggestions<br />
contained here are generalized and may not apply to all<br />
practice situations. First Professionals recommends you obtain legal<br />
advice from a qualified attorney for a more specific application to your<br />
practice. This information should be used as a reference guide only.<br />
First Professionals Insurance Company is Florida’s Physicians Insurance Company SM and the endorsed carrier for professional liability insurance by 22 county medical societies, 15 specialty societies, and<br />
two statewide associations in Florida. The information below does not establish a standard of care, nor is it a substitute for legal advice. The information and suggestions contained here are generalized and<br />
may not apply to all practice situations. First Professionals recommends you obtain legal advice from a qualified attorney for a more specific application to your practice. This information should be used as a<br />
reference guide only.<br />
MIAMI MEDICINE ✚ August 2009 13
14<br />
President<br />
President-Elect<br />
Vice President<br />
Secretary<br />
Treasurer<br />
Immed Past President<br />
District One<br />
District Two<br />
District Three<br />
District Four<br />
District Five<br />
At Large<br />
Advisory Board Member<br />
Fellows-Residents<br />
<strong>Medical</strong> Students<br />
Executive Vice President<br />
Alliance President<br />
Legal Counsel<br />
DCMA Staff<br />
Administrative Assistants<br />
Managing Editor<br />
<strong>Frank</strong> <strong>Maderal</strong>, M.D.<br />
Tel.: (305) 822-4107<br />
Enrique Hanabergh, M.D.<br />
Tel.: (305) 933-2111<br />
Aurelio Mitjans, M.D.<br />
Tel.: (305) 836-1077<br />
Beny Rub, M.D.<br />
Tel.: (305) 932-1007<br />
Elizabeth Etkin-Kramer, M.D.<br />
Tel.: (305) 674-8038<br />
Bernd Wollschlaeger, M.D.<br />
Tel.: (305) 940-8717<br />
Eugene Fu, M.D.<br />
Tel.: (305) 585-6970<br />
Term Expires May 2010<br />
Athanassios Tsoukas, M.D.<br />
Tel.: (305) 324-4840<br />
Term Expires May 2011<br />
Wentworth Jarrett, M.D.<br />
Tel.: (305) 253-4340<br />
Term Expires May 2011<br />
James A. Voglino, M.D.<br />
Tel.: (305) 596-3707<br />
Term Expires May 2010<br />
Jeffrey Horstmyer, M.D.<br />
Tel.: 305 856-8942<br />
Term Expires, May 2010<br />
Eleanor Pimental, M.D.<br />
Tel.: (305) 445-0700<br />
Term Expires May 2012<br />
Andrew Nullman, M.D.<br />
Tel.: 305 534-4404<br />
Term Expires, May 2010<br />
Thomas Mesko, M.D.<br />
Tel.: (305) 674-2397<br />
Term Expires May 2010<br />
Alfonso Icochea, M.D.<br />
Tel.: (305) 444-7628<br />
Term Expires May 2010<br />
Barbara Montford, M.D.<br />
Tel.: (305) 696-0806<br />
Term Expires May 2012<br />
Jeff O. Gonzalez, M.D.<br />
Tel.: (305) 822-4107<br />
Term Expires May 2011<br />
Randy Miller, M.D.<br />
Tel.: (305) 377-1700<br />
Term Expires May 2012<br />
Vacant<br />
Daryl Eber, M.D.<br />
Shaun Patel, M.D.<br />
Arash Handa<br />
Sean Warsch<br />
Patricia C. Handler<br />
Tel.: (305) 324-8717<br />
Sandi Chamyan<br />
Tel.: (305) 720-9488<br />
Ziskind & Arvin, P.A.<br />
Ana Silvera<br />
Ericka Carlson<br />
Nancy Nuñez<br />
Patricia C. Handler<br />
Miami Medicine is the official publication of the <strong>Dade</strong> <strong>County</strong> <strong>Medical</strong> <strong>Association</strong> (DCMA).<br />
C M E O P P O R T U N I T I E S T H R O U G H<br />
B A P T I S T H E A L T H S O U T H F L O R I D A<br />
Baptist Health offers many other CME conferences at no charge. To obtain information about upcoming<br />
conferences, go to www.baptisthealth.net/meded. To request monthly mailings and symposium announcements,<br />
call Julie Zimmett, <strong>Medical</strong> Education, 786 596-2398 or e-mail meded@baptisthealth.net.<br />
Advertising in Miami Medicine does not imply approval or endorsement by the DCMA. Any ads stating approval by the DCMA have been declared<br />
by the DCMA as worthy of consideration by its members; however, the DCMA shall have no liability in the event the user is dissatisfied.<br />
The DCMA maintains a sponsorship program which endorses select vendors and organizations whose products and services may be beneficial to<br />
the membership and/or from which the DCMA may receive financial support.<br />
Miami Medicine assumes no responsibility for statements made by its contributors. Opinions expressed by authors are their own, and not necessarily<br />
those of Miami Medicine or the DCMA. Miami Medicine reserves the right to edit all contributions for clarity and length, as well as to reject<br />
any material submitted.<br />
Subscription: $53.50 annually; single issue $5.35<br />
TWENTY-EIGHTH ANNUAL<br />
⌦ECHOCARDIOGRAPHY SYMPOSIUM<br />
October 30 & 31, 2009<br />
Doral Marriott Resort<br />
10 Credits<br />
HANDS ON CORONARY CTA IN THE<br />
EMEGENCY DEPARTMENT SETTING<br />
November 7 & 8, 2009 Eden Roc Hotel,<br />
Miami Beach, Florida<br />
CME Calendar<br />
To obtain information or to register<br />
for upcoming conferences,<br />
go to www.cme.med.miami.edu<br />
and click on “Conferences” or call<br />
University of Miami Miller School of Medicine,<br />
Division of Continuing <strong>Medical</strong> Education at<br />
305-243-6716<br />
or email us at umcme@med.miami.edu<br />
MEDICAL CLINIC<br />
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NEUROCRITICAL CARE SYMPOSIUM:<br />
FUNDAMENTALS OF NEUROCRITICAL CARE<br />
December 5, 2009<br />
Biltmore Hotel, Coral Gables<br />
4.5 Credits<br />
NINTH ANNUAL⌦EMERGENCY<br />
RADIOLOGY SYMPOSIUM<br />
November 8 - 11, 2009<br />
Eden Roc Hotel, Miami Beach<br />
18 Credits<br />
SAVE THE DATE<br />
January 15-17, 2010<br />
2nd World Conference:<br />
Hormonal and Genetic Basis<br />
of Sexual Differentiation Disorders<br />
The Eden Roc Resort<br />
Miami Beach, FL<br />
February 18-20, 2010<br />
Neurology Update and<br />
Stroke Intensive 2010<br />
The Alexander Hotel<br />
Miami Beach, FL<br />
March 4-6, 2010<br />
5th Annual Perioperative<br />
Medicine Summit 2010<br />
The Eden Roc Resort<br />
Miami Beach, FL<br />
March 11-14, 2010<br />
Pediatric Nephrology<br />
Seminar XXXVII<br />
The Alexander All-Suite<br />
Ocean Front Resort<br />
Miami Beach, FL<br />
April 16, 2010<br />
Florida Ethics:<br />
Debates, Decisions, Solutions<br />
The Miami Beach Resort & Spa,<br />
Miami Beach, FL<br />
MIAMI MEDICINE ✚ July 2009
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<strong>Dade</strong> <strong>County</strong> <strong>Medical</strong> <strong>Association</strong><br />
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Miami, Florida 33125<br />
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