Medical malpractice war gives voters the ammo

Ballot initiatives from lawyers and physicians are headed for the November ballot.

Published July 17, 2004

TALLAHASSEE - It took three special sessions last year for lawmakers to pass a medical malpractice bill that left both sides in the debate unhappy.

This year, the lawyers and doctors are are going straight to the people.

The lawyers have proposed three constitutional amendments and the doctors one. The Florida Supreme Court approved the language of all four on Thursday, and all have drawn enough signatures that they likely will make the Nov. 2 ballot.

All are intended to hit the other side where it hurts the most: the pocketbook.

Both sides plan to spend millions to get their points across - unless they back down first.

The lawyers have offered to withdraw their amendments if the doctors withdraw theirs. No deal, the doctors said.

"The medical community is not backing off this," said Elizabeth Hirst, a spokeswoman for Citizens for a Fair Share, the coalition backed by the Florida Medical Association.

Trial lawyers want to open up records detailing patients harmed in hospitals, limit what doctors can charge for services and strip the license of any medical doctor found to have committed three or more cases of medical malpractice.

The doctors want to limit how much lawyers can make.

So far the trial lawyers have raised $12-million, but plan to spend it fighting the doctors' amendment, not promote their own. Few lawyers could afford to take on a medical malpractice case with such severe limits on their fees, lawyers say. They must bear the cost of litigation, which often takes years, before they see any money.

"Their real aim is to prevent malpractice victims from ever having their day in court," Scott Carruthers, director of both the Academy of Florida Trail Layers and Floridians for Patient Protection, said of the amendment backed by the Florida Medical Association.

The doctors won't say how much they've raised, but acknowledge that fundraising is their top priority now that the Supreme Court has approved the wording of their amendment.

The fight over the amendments could be as bruising as last year's fight over medical malpractice legislation.

The final bill capped awards for pain and suffering in most cases at $500,000, or $1-million for egregious cases, but left doctors and lawyers unhappy.

"These are special interest groups going after each other in the great tradition of TV and direct mail campaigns," said incoming Senate President Tom Lee, R-Brandon. Still, Lee said, "You have to respect their right, absent legislative relief, to go to the Constitution."

The FMA's initiative would limit attorneys' contingency fees to 30 percent of the first $250,000 a plaintiff is awarded in a medical malpractice case and 10 percent of all damages in excess of $250,000.

The amendment has garnered 620,000 signatures. If 488,722 of those are found to be valid, the amendment goes on the ballot.

"When there are unfortunate cases when a patient needs to be compensated it's the patient who deserves to be compensated, not the attorney," Hirst said.

Supreme Court justices approved the wording of that initiative 5-2, but their ruling included a strongly worded dissent from Justice R. Fred Lewis, who said the amendment's real purpose was to prevent citizen access to the courts: "This is truly a wolf in sheep's clothing," Lewis wrote.

The trial lawyers say they have turned in more than 700,000 signatures for each of their amendments. They want to strip the license of any doctor found to have committed three or more incidents of medical malpractice, excluding settlements. The amendment is intended to apply retroactively.

Justices approved that amendment 4-3. In his dissent, Justice Kenneth B. Bell argued that the ballot summary could be confusing to voters and did not explain the amendment's intent.

The doctors group was unable to say how many doctors already have three strikes against them.

Trial lawyers also want the public to have access to records of mistakes in medical facilities that harm patients, which are exempt from Florida's public records laws. Many of those records are used in peer review cases in hospitals and doctors have argued that peer review would stop if those records were to become public. Justices approved the wording of that amendment unanimously.

Lawyers also want to force doctors to charge all patients the lowest rate they have negotiated for a service with an insurance plan, regardless of whether the patient belongs to that plan. Doctors say this could interfere with discounts for Medicare and Medicaid. Justices approved the wording 5-2.


LAWYERS' FEES: Would limit lawyers' contingency fees to 30 percent of the first $250,000 in all medical malpractice damage awards and 10 percent of all damages above $250,000.

MEDICAL ADVERSE INCIDENTS: Would allow public access to records of patient injuries by health care providers and facilities.

PHYSICIAN CHARGES: Would require doctors to charge patients the lowest fee negotiated with a health insurance plan for services, regardless of whether the patient is covered by the plan.

PHYSICIAN LICENSING: Would strip the license of any medical doctor found to have committed three or more cases of medical malpractice.