tampabay.com

Lawyers, doctors destined to duel

The centuries-old battle is playing out over three recently passed amendments.

By JONI JAMES
Published July 24, 2005


Weeks before his second child was born, Daniel Estrada went to the polls in Gainesville. He can't remember if he voted with the majority in November to pass Amendment 3 to the Florida Constitution.

He knows how he'd vote now: No.

The measure, pushed by the Florida Medical Association, sought to cap fees paid to attorneys who file medical malpractice suits on contingency. The pitch was potent: Amendment 3 would give more money to victims of medical malpractice rather than their attorneys, who are paid only if they win.

But eight months after 64 percent of voters agreed to give Estrada the right to collect at least 70 percent of the first $250,000 in damages and 10 percent of anything above that, Estrada willingly signed a contract waiving those rights.

The waiver was required by all the lawyers he talked to about pursing a medical malpractice claim for long-term medical care for his newborn son, who suffers from severe mental and physical disabilities.

Lawyers told Estrada they couldn't afford to take his case otherwise. Finding expert witnesses can be expensive, he was told. Doctors, schooled for years, aren't easy to discredit.

In signing the waiver, the young father became a bystander to the latest round in a centuries-old battle between two of America's premier professions and most influential political lobbies: doctors and lawyers.

Estrada, an technology administrator at the University of Florida Medical School, said he understands why capping attorneys fees sounds appealing. His father is a doctor.

"But when it happens to you or someone you love, all you care about is getting the best counsel you can," said Estrada, who has retained the high-powered plaintiff's firm Searcy Denney Scarola Barnhart & Shipley of West Palm Beach. "I don't see how there is any way that can happen under those limits."

Doctors and lawyers spent $37-million fighting last year over the malpractice cap and two other ballot measures: one to make hospitals reveal adverse incidents, the other to strip doctors of licenses after three medical malpractice incidents. All three passed.

But the cap has been circumvented by widespread use of waivers such as the one Estrada signed. The other two amendments were tinkered with when the Florida Legislature wrote laws to implement them, leaving trial lawyers arguing that both were rendered ineffectual.

In other words, nothing has changed, including the fighting.

Last month the state medical association petitioned the Florida Supreme Court to amend the state bar association's rules so trial attorneys couldn't seek Amendment 3 waivers from their clients. Oral arguments in the debate have been set for November.

"It was a food fight," said Rep. Dan Gelber, D-Miami Beach, a former federal prosecutor who practices corporate law. "And after a food fight, all you really have is a dirty kitchen."

* * *

Look back in the literature, Duke University Law School professor Neil Vidmar says, and you can find it in the 17th and 18th centuries: doctors criticizing juries, attorneys alleging medical malpractice.

Trial lawyers say they only file claims when doctors commit malpractice. Doctors say many trial lawyers prey on the injured or cajole the naive to line their own pockets with fees from settlements.

Juries have played into that game, doctors say. Lawyers argue juries are making real victims whole.

"It's been simmering a long, long time," said Vidmar, author of Medical Malpractice and the American Jury and a collection of academic surveys on the subject.

But nearly everyone agrees, the battle between doctors and lawyers grew more pitched in the 1970s, when modern medical malpractice insurance companies pushed for astronomical rate increases, saying higher claims required it. The 1975 crisis was the start of a recurring business cycle.

In Florida, the demand came from California-based Argonaut Insurance Co., which insured three out of five doctors. In January 1975, they raised rates 96 percent. A month later, the company demanded 200 percent more or threatened to leave the state. Doctors panicked. So did state leaders.

By April of that year, the Legislature passed legislation aimed at eliminating medical mistakes, spreading liability across the insurance market and limiting the cases that would merit a jury trial.

The episode established the pattern that would repeat nearly once a decade: Insurance rate increases prompt legislators to pass a complex array of potential fixes.

Legislators tweaked the system again in the mid 80s and 1999. In 2003, three special sessions led to more changes, including a $500,000 cap on noneconomic, or "pain-and-suffering," damages in all but the most severe cases.

But as early as 1988, the battle had moved to the ballot box. The Florida Medical Association unsuccessfully pushed a measure that year to cap noneconomic damages for victims at $100,000.

By last year, the doctor-lawyer political fight dwarfed even the U.S. Senate race to replace retiring Sen. Bob Graham, D-Fla., where $23.8-million was spent.

The rivalry "has intensified every time it has come up," said Bill Allen, director of the University of Florida Medical School's Program in Bioethics, Law and Medical Professionalism. "The intensity of it is not a very fruitful way to solve the problem, as you can see by the opposing amendments (last year). I'm not certain anyone's served by those."

* * *

Long before he was president of the American Bar Association, Talbot "Sandy" D'Alemberte remembers serving on an ABA committee in the late 1970s that looked at the increasing animosity between the trial bar and doctors.

"I was struck then, as I am now, by how few people have any interest, on either side, in changing the way the system works," said D'Alemberte, a former state representative and president of Florida State University.

But could the state be on the verge of a radical change? Might the state Supreme Court side with the medical association and force trial lawyers to adhere to the fee limits set out under Amendment 3?

The answer depends on whom you ask.

The Florida Bar Association has asked the court to dismiss the issue, saying it should be considered as part of a real case, not an abstract issue.

"It's putting the cart before the horse," said Barry Richard of Tallahassee, a respected constitutional lawyer who wrote the bar association's response to the petition.

Mark Delegal, an attorney and lobbyist for two of the state's medical malpractice insurance providers, signed the medical association's petition, just as he voted for Amendment 3.

"Normally I have a problem with government telling private business about how much they can charge," said Delegal, who advocates for less regulation of insurance rates. "But as I've thought about this, I've become convinced that the system is so corrupt something has to be done. ... Soon we're going to have so many doctors leaving Florida our children will only be able to go to those trained in banana republics."

Trial attorneys say asking clients to waive their rights to a cap on fees is no different than when a suspect waives his rights before a police interrogation. And they note they are still bound by state bar rules that limit fees, although those limits are more generous.

"To me, if you can waive your constitutional rights to self-incrimination, you can certainly waive these," said Fred Levin of Pensacola, the highly successful trial attorney who was part of the state team that took on the tobacco industry in the mid 1990s.

For Estrada, the young father who has two disabled sons, the issue is more practical than theoretical. He and his wife had consulted a geneticist after their first son was born with severe mental and physical disabilities. The child is fed through a feeding tube.

Before having a second child, the couple wanted to know how likely it was that the child would have the same disabilities. They were told there was little chance.

Estrada says cases such as his are hard to prove. And doctors, hospitals and insurance companies have no limits on what they can spend defending themselves. Putting a limit on attorneys bringing claims isn't fair, he said.

Since November, Estrada said, other doctors have told the couple there was always a 1-in-4 chance their second child would be disabled. Estrada said that information would have changed their decision about whether to have a second child or the prenatal care his wife received.

Under Florida law, the family can't seek damages for "wrongful birth," but they are allowed to seek help paying for the extraordinary costs associated with caring for a condition that might have been prevented.

"I'm not looking to get rich," he said, "we're just going to need some help."