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Judge says not yet to amendment's start

A judge delays its start, says the measure is too complex to take effect without input from the Legislature.

Published November 16, 2004

TALLAHASSEE - Less than two weeks after Florida voters overwhelmingly approved a measure to ban doctors with three malpractice judgments against them, a judge on Monday temporarily blocked it from being implemented.

The constitutional amendment is too complex to be implemented without the Legislature's guidance, ruled Leon Circuit Judge Janet Ferris. She also worried aloud that doctors' due process rights could be harmed without a uniform system.

The temporary injunction, which was not opposed by Gov. Jeb Bush, lasts through the end of the 2005 legislative session, which is scheduled to adjourn May 6. The order stemmed from a lawsuit filed two days after the election by the Florida Hospital Association and more than a dozen hospitals, including Tampa General.

Ferris' ruling all but guarantees that medical malpractice issues will once again preoccupy a Legislature that has wrestled with it for years. It also marks a major victory for doctors and hospitals, who will now have a chance to lobby lawmakers, and a defeat for trial lawyers, who backed the measure.

"There is this huge administrative process out there that citizens would not have been expected to understand or consider," Ferris said. "There should be some attempt to standardize how this is done."

Attorneys for the state Department of Health and the Agency for Health Care Administration agreed that legislative intervention was required.

But Ferris' decision drew ire from Floridians for Patient Protection, which sponsored the measure and intervened in the lawsuit. They opposed the injunction.

Amendment supporters also were frustrated that the state did not object to the injunction.

"For the public to speak so clearly in a constitutional amendment, it's incumbent upon the executive branch to enforce and implement the will of the people," said Floridians for Patient Protection attorney Benjamin Stevenson.

Stevenson and his colleagues argued that the state's license review procedure for doctors could easily handle the constitutional change. Under state law, a doctor's licenses is reviewed every two years by the state Board of Medicine. The process includes a right for doctors to appeal.

The political group argued the court should err on the side of enforcing the will of the voter and allow the agencies to begin implementing the measure.

"We've got a governor that is foursquare for anything that hurts trial lawyers and he's in favor of an injunction," said Floridians for Patient Protection attorney Steve Andrews. "No one is presenting any contrary view for the people but us."

Bush's staff acknowledged Monday that they were contemplating, after talking with representatives of the hospitals, asking the Florida Supreme Court for guidance on implementing the measure.

"The governor respects the role of the courts and believes that these amendments need to be addressed in a way that implements the will of the people as fully and quickly as possible," said Bush spokeswoman Jill Bratina. "That is why the agencies involved asked the court specific questions about implementation."

Among the questions raised in court Monday was exactly how the state licensing board should consider when doctors settle a medical malpractice claim rather than fight it; malpractice cases from other states or countries; and court verdicts in which a doctor is found liable for a medical mistake but is not the primary doctor held responsible.

"These meanings are important," said Jerome Hoffman, attorney for the hospital association. "If a doctor is found just 1 percent liable does that count as one of his three? There is just all this uncertainty."

Monday's court appearance was the first post-election battle between doctors and trial attorneys, whose ongoing fight over medical malpractice law was responsible for three of the eight constitutional amendments on the Nov. 2 ballot and the most expensive political campaign in the 2004 season. The groups spent more than $27-million on the issues.

Another showdown is expected Thursday, when the hospital association will ask another Leon judge to bar implementation of Amendment 7, which gives patients the right to review records of health care facilities' or providers' adverse medical incidents, including those which could cause injury or death.

Voters also approved Amendment 3, a doctor-backed measure that caps the amount of fees a trial attorney can earn from medical malpractice cases.

[Last modified November 16, 2004, 00:39:15]

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