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LISA GREENEThree amendments on malpractice suits and patient safety passed, but doctors and lawyers remain at odds.
Three constitutional amendments and $27-million later, the fight between Florida's doctors and lawyers isn't over.
Now that all three amendments related to malpractice suits and patient safety passed, both sides are looking to challenge the measures. Two lawsuits were filed Wednesday. Two of the amendments have to be implemented by the Legislature, virtually guaranteeing another round of lobbying, jockeying and hostility between the sides.
Even some of the chief players say they are losing their taste for battle.
"This incessant doctor vs. lawyer fight - at some point it needs to come to an end," said Alexander Clem, president of the Academy of Florida Trial Lawyers. "At some point it becomes professional genocide."
One of the three measures, backed by state doctors, limits the share of money that patients' lawyers can receive in medical malpractice cases. Amendment 3 garnered the most attention and the most cash, with a lawyer-backed group spending most of its $20-million in a bid to defeat it. It takes effect immediately.
But the other two amendments were backed by the trial lawyers, and they passed as well. If, as lawyers say, Amendment 3 will make it harder for them to bring malpractice cases, Amendments 7 and 8 will make it easier.
One gives patients broader access to records about medical mistakes, while the other is a "three strikes" measure that would revoke the licenses of doctors with repeated legal judgments or disciplinary actions against them.
Despite the huge amount of money spent on Amendment 3, some observers say the lawyers came out ahead.
"Doctors come out with the short stick, and patients come out with the short stick," said Jay Wolfson, director of the University of South Florida's Suncoast Center for Patient Safety Research.
Wolfson, who opposed all three amendments, said lawyers may take fewer cases because of 3, but because of three strikes, doctors will face considerable pressure to settle legal cases - especially if they already have a judgment against them. He said patients lose because, in his view, the amendments don't help patient safety.
Lawyers already are looking at how to challenge Amendment 3. Clem said Wednesday the amendment infringes on the rights of private citizens. "If an individual agrees to enter into a contract to come on my property and cut down a tree ... that's in my right to contract for that," he said. "Where do we go next? Cap the amount that Shaquille O'Neal can earn?"
But the state Supreme Court reviewed Amendment 3 and agreed to put it on the ballot, said Elizabeth Hirst of Citizens for a Fair Share, the amendment's doctor-backed sponsor.
"We feel very, very confident that Amendment 3 can and will stand up to any potential legal challenge," she said. "The voters have spoken, the court has already spoken, and we are ready to move forward with getting patients more of the money they deserve."
Meanwhile, on Wednesday the Florida Hospital Association, Shands Hospital, a teaching hospital in Gainesville and Adventist Health Care System/Sunbelt Inc. filed suit against the Florida Agency for Health Care Administration and the Department of Health in Alachua County over Amendment 7. A similar suit was filed in Leon County.
The lawsuit asks the courts to let the Legislature, which has consistently voted to restrict access to medical records, make the rules that will determine who gets access to such records. In the alternative, the suits ask the courts to set rules for the release of records.
"The amendments are so broad and so vague and so confusing that no one has any idea what they mean," said Bill Bell, the Florida Hospital Association's general counsel. "We have to have guidance from the courts on how they are to be implemented."
The groups also will lobby legislators on how the two should be structured. It's likely, for example, that doctors will argue Amendment 7 should apply narrowly, only to documents that hospitals are required to file when unexpected deaths and injuries occur. Hirst wouldn't discuss those specifics. "Most immediately, we are enjoying the victory," she said. "It was a tough battle, but the medical community was able to get the facts out to patients and voters."