Lobbyists' sworn testimony during malpractice hearings differs from prior claims.
By STEVE BOUSQUET
Published July 20, 2003
TALLAHASSEE - After claiming to have separated fact from fiction in the malpractice debate, members of the Florida Senate have come to another conclusion: Witnesses should testify under oath a lot more often.
The idea of sworn testimony has sweeping implications in a Capitol with 1,952 registered lobbyists, or 12 for each lawmaker. It also raises a question: How often do lobbyists skirt the truth, or lie, on behalf of a client?
For two days last week, senators invited witnesses to tell "the truth, the whole truth and nothing but the truth" on why Florida malpractice rates are among the nation's highest.
Senators acted after saying they got a torrent of bad or contradictory information. When it ended, they concluded that the malpractice crisis is mostly a myth. The Senate still opposes a $250,000 cap on non-economic damages that Gov. Jeb Bush favors.
"If you look at what was said under oath, and you look at the things that were alleged in prior testimony, they differ dramatically," said Senate President Jim King, R-Jacksonville.
As for requiring future witnesses to testify under oath, "I'm not so sure that I can find any fault in that," King said. The Senate Democratic leader, Ron Klein of Boca Raton, called the hearings "incredibly productive."
Leaders of the Coalition to Heal Healthcare in Florida have criticized "one-sided hearings that were designed to discredit doctors, hospitals and insurance companies, not to seek the truth," as Bob Asztalos of the group said.
It was the third time in the past decade that witnesses were sworn, other than cases in which agency heads testify at confirmation hearings.
In the courtroom-like arena, the spoken word took on new meaning. Witnesses, aware of perjury laws, chose words with care, and some stayed away.
"I got a call from a lobbyist asking me if his young partner was going to be fried," said Sen. Walter G. "Skip" Campbell Jr., a Fort Lauderdale Democrat on the Senate Judiciary Committee. "The young partner refused to testify."
Senators seemed better prepared than usual.
Questioning was hostile at times from a panel that included a trial lawyer (Campbell) and two former prosecutors.
When Sandra Mortham of the Florida Medical Association testified, Campbell demanded to know why Mortham had blamed "frivolous lawsuits" for the rise in malpractice rates.
"Certainly, I've never said that," replied Mortham, a former House member from Largo and the FMA chief executive officer. "I don't feel I have the information to say whether or not there are frivolous lawsuits in the state of Florida."
Senators soon circulated copies of FMA news releases bearing Mortham's name, beginning with the phrase, "Due to the explosion in frivolous lawsuits ..."
Asked by reporters if she contradicted herself, Mortham said: "That is ludicrous. Nothing we have put out is the least bit contradictory." She said President Bush has used the term frequently.
Sen. Alex Villalobos, R-Miami, a former prosecutor, challenged Mortham on a claim that rising rates led to a shortage of doctors. Villalobos said there are more licensed doctors in Florida now than ever.
"When somebody says there are fewer doctors today than there were before because they're all heading for the hills, that's just not true," Villalobos said.
Mortham answered that there are more doctors, but Florida has many more people.
Campbell said the Senate should have taken testimony under oath before changing the laws affecting workers' compensation, another complex area rife with what he called "false or fabricated" testimony.
"If we had more testimony under oath on these issues, I think we would have better public policy," Campbell said.
House Speaker Johnnie Byrd likes the idea, too.
One of many projects to be studied by the House before the regular session next year is whether to swear witnesses, and how other states handle it.
Florida's Legislature enjoys a reputation as one of the most professional in the country. But testimony before legislative committees is perfunctory most of the time.
"A lot of what you get is second-hand recitation: "I've been told that' or "My client tells me,"' said Jim Krog, a lobbyist. "It ends up not being first-person testimony."
Krog was one of the founders last year of the Florida Association of Professional Lobbyists. The group's code of ethics requires lobbyists to be "truthful at all times in dealing with public officials."
Under the current system, most lawmakers are reluctant to publicly pressure lobbyists whose fundraising help is crucial at election time.
Lobbyists view testifying as a sign of desperation: A popular saying is that anybody standing in front of a committee hasn't counted the votes.
The hired guns disagree on whether most testimony is truthful.
"It has become commonplace in the process to mislead people, and I think that's unfortunate," South Florida lawyer and lobbyist Ron Book said. "So many more people out there are trying to make a living. They feel they need to win at any cost."
Another lobbyist, Guy Spearman, said most testimony is truthful. "I don't think there's that much lying going on up there," he said. "Most good lobbyists tell them what the other side is going to say, anyhow."
Spearman, who has lobbied the Legislature since the 1970s, said he doubts sworn testimony will become routine in Florida. He said it would take too long, with lobbyists reading from a script approved in advance by the client's lawyers.
"Everybody will be submitting their answers in writing," Spearman said. "If it happens, it will be short-lived."