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The Bottom Line: There Should Be No Dotted Line By Howard Troxler The court created a loophole for Florida lawyers to get around the limit on legal fees that the voters approved in the 2004 election. The voters had agreed that in medical malpractice cases, legal fees should be no more than 30 percent of the first $250,000 received, and no more than 10 percent above that. But the Supreme Court - which writes the rules that govern Florida lawyers - said that lawyers can simply ask their clients to waive the limit. The measure passed by the voters is now practically meaningless. * * * Florida's doctors struck back within hours. They declared that they, too, would start asking patients to sign a waiver. The Florida Medical Association said that doctors should ask patients to give up the right to seek more than $250,000 in "pain and suffering" damages if they ever sued. The doctors said lawyers "are ignoring the will of the people." The lawyers said the doctors aren't interested in reducing malpractice. * * * This is intolerable. Both groups are wrong. They are legally wrong. They are morally wrong. They ought to be stopped. No person in Florida should have to agree to waive the Constitution as a condition of getting a lawyer. No person in Florida should have to sign away legal rights to get a doctor. Lawyers and doctors both hold a license to practice conferred upon them by the people of Florida. If they extort the citizens, coercing them to sign waivers as a condition of seeking justice or medical care, then they don't deserve that license. * * * The Supreme Court's ruling was wrongheaded. The court treated the cap on legal fees as a "personal" right, something that lawyers can ask their clients to give up. After all, the court noted, people can waive the Fifth Amendment right to remain silent, or the Sixth Amendment right to counsel. But there is nothing in the 2004 amendment about it being a "personal" right that can be waived. The amendment was intended as a societal curb on lawsuits. People can't agree, even in a private contract, to violate the Constitution or the law. They can't agree with each other to waive society's rules about, say, human slavery, or homicide, or even speeding. Lawyers argue this is about the right of Floridians "to obtain counsel of his or her choosing." They really mean the right of lawyers to ask clients, as a condition of representing them, to agree to some extra consideration that the Constitution otherwise forbids. By the same reasoning, a client has the "right" to promise his firstborn child, or sexual favors, or anything else that the rules prohibit, if that's what it takes to get a lawyer to take a case. But there is no such "right." * * * There is no fair referee in this fight. The Legislature, under Republican leadership in recent years, has been hostile to the rights of injured people to sue, although not quite as hostile as the doctors would like. The Supreme Court, for its part, is made of lawyers and regulates the lawyers of Florida with their interests in mind. The court has proved it cannot fairly interpret the Constitution and serve as the regulatory agency for Florida lawyers at the same time. The only thing the two branches seem to agree on is that amendments to the Constitution proposed and passed by the voters are mere suggestions, not the law of the land. If the voters want a cap on legal fees, they will need to amend the Constitution yet again to make it clear the cap cannot be waived. And we need to outlaw the practice of asking patients to give up legal rights to get medical care. Nobody should have to waive anything. And the Fight Goes On Florida Trend The FMA hired Holland & Knight partner and former state Supreme Court Justice Stephen Grimes to petition the Florida Supreme Court to change the Bar rules to forbid the practice. According to the article, in June the FMA lost its first attempt to line up support for the measure when The Florida Bar’’s Board of Governors voted to reject the petition and to urge the Florida Supreme Court to reject it as ""premature." The courts should interpret the amendment first, the Bar reasoned. Last month [June], the Florida Supreme Court began accepting comments on the proposed new rule.
Doctors, Attorneys Tangle Again over Malpractice Fees
TALLAHASSEE -- The deluge of campaign ads made it seem simple enough. If voters amended the Florida Constitution, victims would get more money in medical-malpractice lawsuits and attorneys would get less. But nearly eight months after voters overwhelmingly approved the change, doctors and trial lawyers -- arch-enemies in a long-running feud about malpractice lawsuits -- are still wrangling about what it will mean. Supporters of the doctor-fueled amendment are expected to file a proposal with the Florida Supreme Court today that would seek to force trial lawyers to abide by strict limits on the amounts of fees they can collect when representing malpractice victims. The proposal comes after some lawyers have started bypassing limits that doctors envisioned when the amendment passed last year. Lawyers, who argue that the amendment was simply a backdoor effort to stifle malpractice lawsuits, have gotten around the limits by asking clients to sign waivers that allow higher fees. Lisette Mariner, a spokeswoman for the Florida Medical Association, which helped spearhead the amendment, said such waivers only benefit trial lawyers, not clients. "To permit such a practice would not only put the lawyer in an unethical position but fly in the face of the constitutional mandate overwhelmingly approved by the voters of Florida," the proposal going to the Supreme Court states. But trial lawyers have contended for months that strict fee limits could prevent them from taking many costly malpractice cases -- making it difficult for victims to get representation. Phil Chanfrau, a Daytona Beach trial lawyer who has handled malpractice cases, said clients also are able to waive legal rights in other types of cases and called the Supreme Court proposal "hard to believe." Neal Roth, a former president of the Academy of Florida Trial Lawyers, said his Miami firm has clients who have agreed to waivers in malpractice cases. He said the clients are fully aware of what they are doing. "I am absolutely confident that that's the case," said Roth, who has been a prominent player in malpractice debates. The dispute stems from a nasty 2003 legislative fight in which doctors and insurance companies lobbied for a $250,000 cap on pain-and-suffering damages in malpractice lawsuits. They argued that big-money lawsuits were driving up malpractice insurance rates, forcing doctors to leave the state or curb their practices. But with trial lawyers arguing that such a limit would hurt malpractice victims, lawmakers refused to go along with the $250,000 cap. Doctors then began the 2004 constitutional amendment drive to limit attorneys' contingency fees, which are paid if lawyers win or settle cases. The amendment called for victims to receive 70 percent of the first $250,000 in damages awarded in malpractice cases and 90 percent of damages greater than $250,000. That translated into lawyers receiving a maximum of 30 percent of the first $250,000 in damages and 10 percent of higher amounts -- substantially lower than the fees they have been allowed to collect in the past. In the proposal expected to be filed today, backers of the amendment will ask the Supreme Court to clamp the 30 percent limit on attorneys' fees for the first $250,000 in damages and 10 percent for damages above that. "Essentially, the medical association feels like the amendment is clear and that it mandates the reduction in the amount of contingency fees," said Stephen Grimes, a former Supreme Court justice who is representing amendment supporters on the issue. But Roth said the amendment's effects are not so clear and that it would be premature for the Supreme Court to decide the fee issue. Roth said the amendment has also prompted other legal questions, which likely will be fought out in lower courts. As an example, Roth said hospitals and programs such as Medicaid and Medicare sometimes are entitled to receive part of the money awarded in malpractice cases as reimbursement for care. He said it is unclear how they would be reimbursed if the amendment mandates that 70 percent or 90 percent of the damages go to victims. "There are many unanswered questions right now as to what happens," Roth said. |
