[Florida Supreme Court]
              Justices Grill Lawyers on Malpractice Issues

By Mary Ellen Klas
Miami Herald
June 8, 2004

TALLAHASSEE Fl- Florida's highest court grilled lawyers for the state's trial bar Monday over three constitutional amendments the attorneys hope to put on the November ballot that would punish doctors who commit repeated malpractice.

Before the proposed amendments can appear on the ballot, the Florida Supreme Court must decide whether the ballot summaries are clear and accurate and whether, as the law requires, each amendment applies to only one subject.

But the court made it clear Monday that it had more than just a limited scope of questions about the proposals that, as Justice Charles Wells said, could force some doctors to ''get their license jerked'' even if they have been practicing in Florida for 30 years.

The Academy of Florida Trial Lawyers has mounted an aggressive effort to collect signatures to get three proposals on the ballot that would:

•• Revoke the licenses of doctors after three medical malpractice judgments, not including settlements.

•• Make it easier for the public to track medical mistakes by making more records public.

•• Require doctors to charge all patients receiving the same service the lowest fee the physicians have agreed to accept.

As of Friday, the lawyers' political action committee -- Floridians for Patient Protection -- had collected more than 556,000 signatures to get the measures on the ballot. They must get 488,000 signatures of registered voters verified by the state elections office to get on the ballot.

Opposing the lawyers is the Florida Medical Association, which is seeking signatures for its own proposed amendment to punish lawyers by limiting the amount of money they can collect in contingency fees in malpractice cases. The high court will hear arguments on the doctor's ballot language today.

Wells raised the question of whether the so-called ''three strikes'' could violate a doctor's constitutional rights to due process and equal protection.

He raised the hypothetical example of a doctor who has been practicing medicine in Florida since 1960 and ''as far as I know hasn't had any medical malpractice'' but was involved in operations in 1960, 1961 and 1962 in which sponges were left in the patient after surgery.

If that case went to court and the doctor agreed to pay out $10,000 each for his share, ``his license would be taken by this.''

By contrast, Wells noted, ``If I went to a doctor who had three cases in 2003 and those cases were settled for $1 million and did not go to a judgment, he would not be affected.''

Timothy McLendon, the Gainesville attorney who represented the trial lawyers in the case, agreed with Wells' interpretation and responded that ``there is a possibility it may inflict some hardship on some people.''

McLendon said the only old cases against doctors that would count under their proposal would be those that met today's definition of medical malpractice, as clarified by the Legislature last year.

''There is a minuscule percent of doctors for whom this applies,'' he said.

Wells compared that argument to undergoing what is considered routine bypass surgery. ``That's not minuscule to you, going in, and it's not minuscule for the doctor who has been practicing for 30 years who had no idea when he [lost] three minor claims for $10,000 each and had no idea he was going to get his license jerked in 2004.''

Former Supreme Court Justice Stephen H. Grimes, who spoke for the doctors before the high court Monday, said Wells' concerns were significant because they point out that the ballot language is misleading.

''The voters could not conceive of the fact that maybe his family doctor is going to get disenfranchised,'' he said.

Grimes also accused the trial bar of writing a half-truth when it penned the summary for the amendment, which says that ``current law allows medical doctors who have committed repeated malpractice to be licensed to practice medicine in Florida.''

That leaves the impression that doctors think it's all right to commit malpractice, Grimes said.

In fact, he noted, medical boards now have the discretion to review medical malpractice cases and determine whether a doctor should be allowed to continue practicing.

Lawyers for the Florida Dental Association objected to the amendment requiring access for patients and their families to all adverse-incident reports involving a hospital or doctor.

The association said that could potentially affect all medical providers and strip them of their right to defend themselves, because it takes records that are now private and makes them available to the public.

Medical Malpractice Battle Moves Toward November Ballot

By David Royse
Associated Press Writer
The Ledger
June 7, 2004

TALLAHASSEE, Fla. Lawyers and doctors fought all last year over medical malpractice and neither was happy with what the judges of the fight - the Legislature - decided to do.

The two professions are still battling, only now the judges may be the voters of Florida, as each group tries to get initiatives on the Nov. 2 ballot and make the case that the other guys need to be reigned in.

Doctors say greedy trial lawyers are causing a health care crisis, spurred to take cases by the potential for a jackpot payoff. Physicians want to fix that by limiting how much lawyers can take as payment from their injured clients.

Lawyers for malpractice victims say it's doctors making the mistakes, so they're to blame if there are too many malpractice lawsuits.

Each group is spending lots of money to push proposals to change the state constitution.

Doctors say limits on how much of the pot lawyers can collect will prevent them from pursuing frivolous lawsuits.

Lawyers are trying to drum repeat malpractice offenders out of business and make more records of medical mistakes available to the public.

Plaintiffs attorneys also are trying to get voters to dictate what doctors can charge in some cases, admitting they're taking aim at doctors' income partly in retaliation - because doctors are trying to limit what they can make.

It all matters to ordinary Floridians because doctors say their malpractice insurance rates are too high and some say they can't continue to practice.

Even after the Legislature last year put caps on what people can win in malpractice lawsuits, insurance rates are still too much, doctors say. The legislation limits a doctor's liability for noneconomic damages in most malpractice cases to $500,000. A medical facility's liability will be limited to $750,000 in most cases.

Multiple victims can win more with multiple lawsuits against multiple defendants, but no group of victims could win more than $2.5 million.

It's not clear yet what the effect will be on insurance rates. Insurance companies say it takes time for the new limits to filter into their rate making.

The Florida Medical Association, which represents 16,000 doctors, is pushing an amendment that would require patients to receive 70 percent of the first $250,000 in a malpractice award and 90 percent of any amount above that, minus costs.
Currently, patients get about 60 percent of the first $1 million, 70 percent of the second million and 80 percent of the rest.

Doctors say they're not simply going after lawyers' income.

"It's going to discourage trial lawyers from filing lawsuits that may not be totally aboveboard," said Cory Tilley, a spokesman for Citizens for a Fair Share, a political group created by doctors to push the amendment. "If they stop taking on meritless cases ... we'll have lower premiums."

Lawyers say further limits on how much they get could keep them from taking many cases.

"These cases are some of the most expensive to bring to court," said Scott Carruthers, executive director of the Academy of Florida Trial Lawyers, which represents about 4,000 plaintiffs attorneys.

If they lose, they don't get paid. "If the lawyer's going to be penalized when they lose and the upside when they're successful is going to be limited, that's going to have a very chilling effect," Carruthers said.

Trial lawyers have their own proposals they want voters to approve.

The first would bar doctors from practicing if they've had three malpractice judgments against them.

Alexander Clem, an Orlando attorney and incoming president of the trial lawyers group, said he believes 5 percent of doctors commit most mistakes, and the lawyers' amendment would get them out of the business.

The trial bar is also backing an amendment to give the public more access to records of adverse incidents and require doctors to charge every patient the same fee for the same service.

The doctors group says the lawyers are simply trying to "bully doctors" from pursuing their amendment - and Clem acknowledges that's at least partly true.

But, he said, the doctors "initiated this fight."

Both groups are likely to have enough signatures to get the measures on the ballot. As of Friday, the doctors had collected more than half of the 488,722 verified signatures needed to qualify for the ballot. The trial lawyers had collected nearly half of the verified signatures needed.

Both groups also need the Supreme Court to decide whether their ballot language is clear.

Some experts say that when interest groups fight each other over ballot amendments, the public frequently decides to vote to keep things the way they are.

That's what the business lobby would like, even though they worked with doctors to push for the malpractice law changes the Legislature passed last year.

The president of business lobbying group Associated Industries of Florida, Jon Shebel, recently wrote to doctors, arguing that the legislation needed more time to work.

AIF is also against the lawyers' three amendments - which the group sees as purely retaliatory.

"We believe that if both the FMA amendment and the trial lawyer amendments were to pass, the result would be hurtful to both professions, and it would be a pox on both your houses," Shebel wrote.
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On the Net:

Academy of Florida Trial Lawyers: www.aftl.org

Doctors' effort to cap lawyers fees: www.citizensforafairshare.org

Florida Division of Elections:

End Advance
         

               Obligations to All Humans (Except Trial Lawyers)

By Linda Campbell
Knight Ridder Newspapers
Fort Worth Star-Telegram
June 4, 2004

(KRT) - In the name of Marcus Welby!

Call Dr. Kildare.

Even "E.R.'s" disastrously departed misanthrope Robert Romano wouldn't have been this mean.

Among the resolutions that the American Medical Association's governing body will take up when it starts meeting June 12 is a proposal to let doctors refuse to treat trial lawyers and their spouses.

This is not a lawyer joke.

It's a real resolution that Charleston, S.C., surgeon J. Chris Hawk III wants the AMA's House of Delegates to approve as association policy.

This jaw-dropping measure, presented as a means of addressing diminishing access to health care, laments the medical profession's inability to impose a $250,000 national cap on pain and suffering damages in medical malpractice lawsuits - as though that were the magic antidote for chronically bloated insurance premiums.

Among its whereases, the resolution suggests that "if trial attorneys were given the opportunity to experience the access problems caused by the professional liability crisis, then perhaps they would be willing to help change the system."

So, Hawk believes, the AMA should "notify physicians that, except in emergencies and except as otherwise required by law or other professional regulation, it is not unethical to refuse care to plaintiffs' attorneys and their spouses."

Forget about that Hippocratic oath.

Let's indulge in discrimination according to livelihood - not to mention guilt by marital association.

Hawk told The Post and Courier in Charleston, "My obligation now is to try to improve the system, because we already have patients not getting care."

It requires truly warped logic to imagine that this tactic would advance that cause in any fashion.

If anyone thinks that Hawk's effort is merely an aberration, consider that the Christian Coalition of Alabama recently asked candidates for judicial office whether they would pledge to spurn campaign funding from personal injury trial lawyers, The Birmingham News reported. The organization considers Roe v. Wade an "activist" decision, and judges backed by trial lawyers tend to be "judicial activists," and so, of course, you see the connection.

What all this really accomplishes is to distract from meaningful debate about daunting problems.

Forty-three million Americans remain without health insurance. Many suffer for want of treatment. Someone has to pay to treat them when they get sick. But the cost of medical care climbs.

Medical malpractice insurance companies continue to hike premiums even in states that have limited awards for non-economic damages.

Texas voters last fall approved a constitutional amendment capping non-economic damages, but it hasn't immediately translated into lower malpractice insurance rates for many physicians.

Texas Medical Liability Trust reduced its rates by 12 percent, as promised.

But, late last year, the Joint Underwriting Association asked to raise rates 35 percent for physicians, surgeons and other health care providers and almost 68 percent for hospitals, a request denied by Texas Insurance Commissioner Jose Montemayor.

Yet another insurer, General Electric Medical Protective, switched to an unregulated type of insurance so that it could increase premiums by 10 percent.

In Ohio, malpractice premiums are expected to go up 10 percent to 40 percent this year, even though the state adopted pain-and-suffering caps, "The Advocate" newspaper in central Ohio reported in February.

Legislatures in Illinois, Oklahoma and Georgia have brawled over caps this year, and the Missouri governor recently rejected legislation capping non-economic damages.

Instead of fixating on caps as a fix-all, Pennsylvania and New Jersey are trying error-reporting systems in order to cut down on the types of hospital mistakes that can lead to lawsuits.

Other measures being considered in some states include limiting the length of time that children can sue for injuries suffered during delivery or as infants; giving judges more authority to reduce excessive verdicts; allowing defendants who didn't treat a patient or clearly have no liability to exit a lawsuit quickly to avoid litigation costs; and enacting a sliding scale on contingent attorney fees.

Brooklyn Law School professor Anthony J. Sebok wrote in December that the usual suspects with the loudest voices on America's "liability crisis" miss the point about what needs reforming in the tort system.

"It is so expensive to litigate that few deserving victims sue, and many blameless defendants settle just so they can escape the expense and uncertainty of the civil justice system," he wrote on findlaw.com.

That can't be corrected with simplistic solutions or absurd ethical practices.

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ABOUT THE WRITER

Linda P. Campbell is a columnist and editorial writer for the Fort Worth Star-Telegram. Readers may write to her at 400 W. 7th Street, Fort Worth, Texas 76102, or via e-mail at lcampbell@star-telegram.com.

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©© 2004, Fort Worth Star-Telegram.