TALLAHASSEE - Bad medicine is being dispensed in Florida doctors' offices in the guise of a ballot initiative promising "fair compensation" to malpractice victims. The object is to limit severely the contingency fees lawyers can earn by winning suits against health care providers.
A lady who had gotten one of these petitions along with her MRI asked me what it really meant. I told her the purpose was to keep lawyers from taking malpractice cases.
"That's what I thought," she said, and tore it up.
The trial lawyers are fighting fire with fire. Their weapon is equally appealing on the surface and just as obviously wrong when you look into what it actually would do.
According to one of the seven initiatives the lawyers are circulating, a physician could charge a patient no more than the lowest fee that he or she accepts for the same service to anyone else. Everyone would get the benefit of the hard bargains that insurance companies and HMOs have been dictating.
Notably, this wouldn't apply to clinical labs and hospitals, which is where the worst cases of sticker shock are inflicted on those least able to pay.
In our household, for example, the bills for some routine lab tests totaled $296. The insurer's discount cut them to $28.91. Our copayments were a trifling $5.78, but if we had been uninsured we would have been responsible for the entire $296.
But the lawyers are targeting only doctor bills.
"The hospitals haven't joined with the doctors. If they do, we'd change our amendment to include them too," explained Scott Carruthers, executive director of the Academy of Florida Trial Lawyers.
These dueling initiatives are the latest battle in a war the doctors began with a 1988 ballot proposal that would have drastically limited noneconomic damages - that means primarily pain and suffering - to $100,000 for all categories of bodily injury. The lawyers raised $8-million and won the fight with 57 percent of the vote.
Unsatisfied with their mixed victory in the Legislature this year, the doctors are pushing an amendment that is superficially more reasonable but is actually more outrageous.
It would restrict the plaintiff's lawyer to no more than 30 percent of the first $250,000 in total damages, exclusive of reasonable costs, and to 10 percent of anything above that. It's substantially less than the sliding scale of fees, from 331/3 percent in small cases to 20 percent above $2-million, presently set by the Supreme Court. A $1-million verdict that's presently worth $333,000 to the lawyer who won it would yield only $150,000.
While that might be lot of money in any other context, it's much less than it typically costs a law firm to pursue a difficult case - or for that matter, for the other side to defend it. But of course the doctors' initiative does not cap defense fees because there would little need of any.
This has nothing to do with a fair settlement of the malpractice wars. But neither does the academy's "same fee" initiative, which is a poor substitute - indeed, no substitute at all - for universal health care. While "same fee" might destroy the health insurance industry as we know it (which wouldn't be such a bad idea) it is more likely to (a) drive a lot of doctors out of business or (b) substantially inflate health insurance premiums or (c) do both.
The record shows, however, that it was the doctors who filed the first of these calamitous initiatives, so one can hardly fault the lawyers for shooting back. Their ammunition includes initiatives aimed directly at the insurance industry, but those are on hold so long as the insurers stay out of the "fair compensation" fight.
Says Carruthers: "We've been pursuing a strategy since 1988 that's the equivalent of mutually assured destruction. These proposed initiatives are like nuclear weapons." Unlike the doctors, however, the insurance lobbies "understand there's no gain to be had by pursuing amendments that inflict pain on any side because everybody has an Achilles heel."
After the 1988 doctors' initiative, Carruthers said, the Academy leadership vowed never to be in a solely defensive position again. Each attack would incur a counterattack, which is what's happening now.
The field of battle, unfortunately, is the Florida Constitution. Nearly 17-million unoffending people are caught in the crossfire. Neither "same fee" or "fair compensation" deserves to be engraved into the Constitution; they would be out of place even as ordinary law. Of the 51 active initiatives on file with the secretary of state, no more than seven or eight have anything to do with constitutional law.
Carruthers concedes that this is all wrong.
"The sad reality," he said, "is that what was anticipated as a citizen initiative process has been perverted by special interests. Very few have been legitimate . . . most are special interest money trying to get some advantage over someone else."
Like almost everyone else in Tallahassee, he agrees that the Legislature needs to do something. That consensus comes easily. Not so the solution.
