Doctors, lawyers may wage waiver war

Published September 29, 2006

TALLAHASSEE - A back-and-forth battle between lawyers and doctors over medical malpractice escalated Thursday when the state Supreme Court approved a rule letting lawyers avoid limits on their fees. That led doctors to say they may require patients to sign waivers limiting their ability to sue.

Voters changed the state Constitution in 2004 to guarantee that victims of medical malpractice would get at least 70 percent of the first $250,000 of a jury award or settlement in such cases, and 90 percent of anything above that.

The amendment was favored by doctors, who say lawyers often take meritless malpractice cases and drive up malpractice premiums.

But after the Constitution was changed to limit legal fees on most malpractice awards, a few lawyers began asking patients to sign agreements to waive their percentage guarantees. Otherwise, they said, they would turn down some cases.

On Thursday, the Supreme Court approved a procedural rule, written by the Florida Bar, that allows that practice to continue. The opinion noted it is "firmly established that such constitutional rights designed solely for the protection of the individual concerned" can be waived.

So the Florida Medical Association announced Thursday that it will give doctors waiver forms.

That form says the patient agrees not to sue the doctor for more than $250,000 in noneconomic damages if anything goes wrong. It doesn't limit economic damages, such as the cost of followup care.

Florida Medical Association president Patrick Hutton said if lawyers were going to get around the limit on fees, then awards won't come down and malpractice premiums won't get lower.

Paul Jess, general counsel of the Academy of Florida Trial Lawyers, said, "I think it's incredible that the Florida Medical Association, instead of dedicating its efforts to trying to prevent medical errors ... appears to be more interested in denying compensation to victims."