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LISA GREENEDoctors and lawyers have spent millions on Amendment 3, but who has persuaded more voters is to be seen.
Sometime after the doctors and the lawyers spent their first million fighting over Amendment 3, says lawyer Steven B. Lesser, the campaign got out of control.
"There was this airplane over the beach that said "Bad doctors love Amendment 3,"' said Lesser, a Fort Lauderdale lawyer who has studied the issue. "This thing has almost gotten to be a circus. Every other ad on TV is about Amendment 3."
Banner planes. Protest rallies. And a seemingly endless string of TV ads, bashing the evils of either "greedy lawyers" or "bad doctors."
"I think both sides have done a thorough job of confusing the crud out of the voters," said Mark Wilson, senior vice president of the Florida Chamber of Commerce.
Those voters have a week left to decide whether they believe the doctors, who paint Amendment 3 as the only way to stop a flood of costly malpractice suits, or the lawyers, whose ads cast the issue as one of patient safety and don't say what the measure would actually do.
Amendment 3 to the Florida Constitution would limit how much money lawyers are paid when they win lawsuits or settlements for victims of medical malpractice. Lawyers now typically collect 30 to 40 percent of an award. The amendment would limit that to 30 percent of the first $250,000 awarded, excluding legal expenses, and 10 percent over that. So, for example, a lawyer who wins a $500,000 award for a client would earn $100,000, while a lawyer who won a $2-million verdict would earn $250,000.
The amendment is part of a larger fight between doctors and lawyers over malpractice reform. Two other measures on the ballot are backed by lawyers and opposed by doctors.
The two groups have raised more than $27-million total, and most is being spent on Amendment 3.
Each side has mounted a costly ad campaign. A group backed by the Florida Medical Association has run a string of ads bashing lawyers, urging a yes vote on Amendment 3. One parodies a grinning lawyer flashing a wad of cash.
Their theme: Lawyers are bad.
A patient safety group linked to state trial lawyers is running opposing ads. These feature patients victimized by bad doctors and a string of statistics on people hurt or killed by medical mistakes.
The ads omit any mention that the amendment would limit lawyers' fees.
Their theme: Lawyers are invisible.
"They don't call it lying, they call it being a lawyer," complained Dr. Frank Mastandrea, president of the Hillsborough County Medical Association. The amendment "doesn't have anything to do with the sky falling, but that's all they talk about."
But Floridians for Patient Protection says it focuses on what Amendment 3 would really do. The amendment would limit citizens' access to courts because malpractice cases are costly to prepare, and lawyers couldn't afford to take many if their fees were reduced , they say. In the end, patient safety could suffer because doctors would be less accountable.
"There's nothing misleading about our ads," said Mark Riordan, press secretary for the group. "Every statistic we cite is verifiable fact."
It's the doctors' ads that are misleading, Riordan said. First of all, the doctors' first ad, in which a woman in a wheelchair complained about her lawyer taking half her malpractice award, features an actor, not a real patient. Riordan also argued the amendment is deceptive because its real intent isn't to let patients keep more of their awards. It really aims to reduce lawsuits against doctors, Riordan said.
The question is whose ads will work. So far, polls give the edge to the doctors, but it's a tight race. A St. Petersburg Times-Miami Herald pol l conducted last week shows 53 percent of Floridians support the amendment, with 31 percent opposed and 16 percent undecided.
Daniel Smith, an associate political science professor at the University of Florida, gave the edge to the lawyers' side. The pro-3 ads, Smith said, bash lawyers so hard they seem "vindictive," and don't explain how patients might be helped. "There are a lot of negatives in regard to greedy trial lawyers," Smith said. "But a lot of positives with patients who have been injured being able to have their day in court."
Smith said he would have expected Citizens for a Fair Share to have used more emotional ads, with real patients and doctors. He also thinks Amendment 3 is worded in a confusing way.
But ads against Amendment 3 never mention lawyers' fees at all. Supporters hope that strategy backfires, because voters might read the ballot language and not relate it to the ads they saw.
Smith doesn't buy it. "I'm sure their focus groups have said this is the way to go," he said.
Voters have their own opinions. Stella Skuza, 45, just moved to St. Petersburg a few weeks ago. But she has been here long enough to decide that in this battle, politics, not safety, is what's at stake.
"That's what most of this is - the fight between doctors and lawyers," she said.
Doctors' ads "aren't telling the whole story," Skuza said, while lawyers exaggerate the risk to patients.
St. Petersburg voter Mary Shuh thought the anti-3 ads try to use patients' sad stories to manipulate emotions.
"A lot of people don't understand that attorneys take such a large sum," she said. "I think it's used as a ploy to pull at people's heartstrings."
But Belinda Klemm, 26, of St. Petersburg said those ads are persuasive. "I can sympathize with both sides," she said. "But I think the main concern is the patients' protection and well-being."
The amendment has caused some unlikely alliances. The Florida Chamber of Commerce is among the business groups opposing Amendment 3, even though it generally supports tort reform.
The chamber's Wilson even described trial lawyers as "probably the No. 1 plague in America right now."
But chamber officials feel the measure should be debated by legislators, not added to the Constitution.
"Amendment 3 is an incredibly good idea," he said. "The problem is it's not the place for that discussion."
A task force put together by the American Bar Association has weighed in against the measure as well. While the ABA represents the nation's lawyers, the task force was designed to be neutral, with members who represent plaintiffs and defendants, as well as other fields. Lesser, the Fort Lauderdale lawyer who chaired the group sponsored by the ABA's Tort Trial & Insurance Practice section, is in construction law.
The group said paying lawyers a portion of settlements hasn't been shown to increase the number of malpractice suits, and capping fees would give injured patients less access to lawyers.
But Lesser remains stunned by the amount of money spent pushing the issue.
"They could have used $30-million and done something to improve this system," he said.