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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 />

MIAMI, FL: 305-995-8225 PLANTATION, FL: 954-916-2640<br />

www.promedpersonnel.com<br />

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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protecting your income. It’s that simple. At <strong>Medical</strong> Group<br />

Insurance Services, Inc. (MGIS), we focus on providing<br />

cutting-edge Group Long Term Disability and Life coverage<br />

that protects physicians and their staff. With benefits<br />

like a 5% discount for DCMA members, guarantee issue,<br />

and 66 2/3% to $20,000 benefit, MGIS is your clear<br />

choice. To learn more, please contact your endorsed agent,<br />

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Group Disability • Group Life


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 />

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10 Credits<br />

HANDS ON CORONARY CTA IN THE<br />

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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 />

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January 15-17, 2010<br />

2nd World Conference:<br />

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February 18-20, 2010<br />

Neurology Update and<br />

Stroke Intensive 2010<br />

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March 4-6, 2010<br />

5th Annual Perioperative<br />

Medicine Summit 2010<br />

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March 11-14, 2010<br />

Pediatric Nephrology<br />

Seminar XXXVII<br />

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MIAMI MEDICINE ✚ July 2009


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