Doctors may ask you to cap your claim

The Florida Medical Association says its members should ask patients to sign a waiver limiting potential damages to $250,000.

Published September 28, 2006

TALLAHASSEE — The next time you go to a doctor’s office in Florida, you could be asked to sign paperwork limiting the amount of money you could seek if injured by medical malpractice.

The Florida Medical Association on Thursday urged doctors to require patients to sign a waiver before treatment that would cap “pain and suffering” damages at $250,000. The waiver wouldn’t apply to economic damages, such as lost wages or continuing medical care.

The waiver idea is the latest round in a long and bitter feud over medical malpractice between doctors and lawyers.

The FMA’s recommendation came less than three hours after the Florida Supreme Court approved a trial bar strategy to circumvent a voter-approved limit on attorney fees in malpractice cases.

It has become a battle of the waivers.

“We are mirroring exactly what (the trial bar) did,” said Dr. Patrick Hutton, an Orange Park orthopedic surgeon who is president of the 16,000-doctor association.

In 2004, Florida voters approved a ballot measure that restricted plaintiff’s attorney fees to 30 percent of the first $250,000 of an award and 10 percent of money above that, excluding court costs.

Lawyers responded by simply asking clients to waive their rights to that fee restriction. On Thursday, the state’s high court ruled that the lawyers’ waiver was permissible.

“They are asking people to waive their right for legal care,” Hutton said. “We say doctors have the right to ask for that same kind of waiver.”

How many doctors will embrace the suggestion was unclear Thursday. Hutton said he will encourage his 24-doctor group to adopt the policy for nonemergency cases.

But the high court’s ruling and the FMA’s reaction Thursday was just the latest standoff between two of the state’s most powerful lobbies, which collectively spent nearly $30-million two years ago on a trio of ballot measures to try to gain the upper hand in medical malpractice litigation.

Doctors have long complained that the trial bar’s incentive-based fee system — in which patient’s attorneys take no money up front but collect a share of damages in successful cases — prompts frivolous lawsuits, thereby driving up liability insurance premiums for doctors.

On the other side, FMA’s nemesis, the Academy of Florida Trial Attorneys, said doctors aren’t willing to acknowledge the prevalence of malpractice.

Academy representatives said they suspect doctors who require patients to sign waivers will eventually be challenged on constitutional grounds because it could make it impossible for people unwilling to sign a waiver to get medical care.

“The organization that should be leading the charge for standards of care is more concerned about finding ways to immunize health care providers and insulating the insurance industry,’’ said Frank Petosa of Boca Raton, president-elect of the academy.

The trial bar argues its waivers make it easier for clients to get access to the courts because lawyers would be reluctant to take on some cases under the 2004 constitutional amendment because medical malpractice cases are expensive to try.

Under a 2003  Florida law, doctors’ liability for noneconomic damages are capped at $500,000 in most cases. The FMA’s waiver of a $250,000 mimics California’s law because it should lower insurance premiums, Hutton said.

Joni James can be reached at jjames@sptimes.com.