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ALISA ULFERTSPhysicians stage work stoppages to press legislators, who begin a special session today, for malpractice limits.
TALLAHASSEE - The full-page ad in the Florida Times-Union in Jacksonville warned lawmakers what to expect if they failed to pass a bill curbing medical malpractice lawsuits by May 2.
"We do not intend to perform any surgeries after that date," the Jacksonville Orthopedic Institute declared April 24, a week before the legislative session ended in failure.
Days later, another ad appeared in the Times Union, the hometown paper of Republican Senate president Jim King:
"Drs. Mori, Bean & Brooks, P.A., may be forced to stop reading mammograms if meaningful tort reform isn't passed soon."
As lawmakers prepare to return to Tallahassee today for a special session on the medical malpractice insurance crisis, frustrated physicians increasingly are turning to a new weapon in the fight against skyrocketing insurance premiums: boycott.
The word itself isn't used; physicians announce they are taking a "leave of absence" until lawmakers pass "meaningful tort reform," defined by the Florida Medical Association as a $250,000 cap on noneconomic damages such as pain and suffering.
Neither the FMA nor the state tracks the number of striking physicians, but Jacksonville appears to be the hub of the fight. King's refusal to twist senators' arms in support of a damages cap has made his district a magnet for physician walkouts.
So many doctors stopped practicing that the Duval County Emergency Operations Center declared a health care shortage and opened for three weeks this spring to coordinate surgical care and consultations. It closed after surgeons returned to work.
Even FMA president Robert Cline, a Broward thoracic surgeon, announced last month he was closing his doors indefinitely for all but emergency cases because of lawmakers' failure to act.
"As long as I take care of people with life-threatening emergencies, ethically I'm comfortable with it," Cline explained at a news conference.
While acknowledging the potential public relations setbacks the walkouts create, Cline said some doctors are using that strategy to buy time while they weigh whether to stay in Florida.
But not all lawmakers, even those who support the same damage caps as the FMA, are as comfortable as Cline with the walkouts. Rep. Frank Farkas chairs the House Health Care Committee, which has consistently supported the $250,000 damage cap. He said he understands that physicians' desperation is rising along with their insurance premiums.
But taking leaves of absence is the wrong way to go, Farkas said.
"I don't agree with that, certainly; I think that's the wrong thing to do. The right thing to do is get your patients riled up to make phone calls," said Farkas, R-St. Petersburg. But the boycotts have added even more urgency to the crisis. Farkas said he's haunted by the "what ifs" that could happen if more doctors stop practicing in protest.
"If we don't do something, there will be more desperate attempts to get attention. ... One of these times someone is going to die. I don't want that to happen," Farkas added.
Public Citizen, a nonprofit consumer rights group in Washington, D.C., has suggested doctors' boycotts could violate federal antitrust laws because competing physicians are cooperating to seek legislation that would benefit them economically by lowering their liability insurance rates. A spokeswoman for the group said it is keeping an eye on Florida.
Trial lawyers agree, and point to parallels between the doctors' actions and a 1990 Supreme Court case in which the nation's high court ordered striking lawyers back to work, saying they were violating the Federal Trade Commission Act. The Washington, D.C., lawyers had declared they would not represent indigent defendants until Congress raised the fee they received for those services.
Despite the lawyers' claims that they had a First Amendment right to protest, the Supreme Court ruled that because the objective was economic gain, the group was not immune from antitrust laws.
Florida Academy of Trial Lawyers past president Neal Roth said the same theory should apply to the doctors.
"The lawyers were striking to gain an economic advantage, and the doctors who are saying they are not going to work are doing the same thing," Roth said.
The FMA is aware of the antitrust danger and has put a warning on its Web site: "A joint agreement, whether explicit or implied, between competing physicians to close their offices in order to engage in a rally could be construed as a group boycott. Such a decision could be viewed as a per se violation of the antitrust laws."
The FMA helped organize a major doctor rally during the regular session that brought about 2,500 physicians to Tallahassee in March. Association vice president and lobbyist Sandra Mortham says the FMA is not coordinating any physician lobbying for next week's special session and doesn't know how many doctors will walk the Capitol halls during the four days.
A Boeing 727 has been chartered to fly out of Palm Beach during the session, but Mortham said many doctors are assuming the four-day session will end without a bill passed and are saving their efforts for the subsequent special sessions.
House Speaker Johnnie Byrd, R-Plant City, said he's not ruling out multiple special sessions.
"There may be more than one med mal session. The governor has a place where he wants to be on caps and bad faith. If the Senate doesn't come to where he wants, he'll bring us back," Byrd told the St. Petersburg Times editorial board Wednesday.
Gov. Jeb Bush has proposed a bill that would cap noneconomic damages at $250,000 and elicited a promise from the state's largest medical malpractice insurer to lower its rates. But Senate Majority Leader Dennis Jones, R-St. Petersburg, King's lead negotiator on the issue, said the Senate will be starting with the package of bills it passed during the regular session, which lack the cap.
Jones said he thinks senators still lack the appetite to cap pain and suffering damages at $250,000, but said the Senate might be agree to a higher cap but only if there are exceptions for the most egregious cases of malpractice.
And while somewhat troubled at the stories he reads about doctors leaving, Jones said he's not overly worried about it.
"If you read the newspapers, on the same day you see some doctors walk out, you see an ad for some doctors opening a new practice," Jones said.
- Times staff writer Lucy Morgan contributed to this report.