Ballot battle: Two professions square off over attorney fees and quality of care.

Florida residents will vote in November on competing medical liability proposals; all could become law.

By Tanya Albert amednews correspondent — Posted Sept. 6, 2004

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Doctors and lawyers in Florida have taken the tort reform fight to a new level -- dueling ballot initiatives.

On Nov. 2, Florida citizens will vote "yes" or "no" on three proposed constitutional amendments that address medical liability issues. Early polling shows that all of them are likely to pass.

The ballot box battle comes a little more than a year after the Florida Legislature passed a $500,000 noneconomic damages cap that doctors say won't prevent premium hikes that are forcing them to leave the state, retire early or forgo high-risk procedures.

To solve the problem, doctors are proposing a constitutional change that would limit the amount that trial lawyers could collect in medical malpractice lawsuits so that injured patients get a bigger chunk of awards.

Trial lawyers are proposing two constitutional amendments. The first -- commonly referred to as the "three-strikes" rule -- calls for stripping doctors of their medical licenses if they have three medical malpractice judgments against them. The second amendment would let patients see medical records and reports connected with "adverse" incidents, including documents generated during peer-review procedures.

Between now and Election Day, airwaves will be buzzing with ads telling voters why they should vote for or against each constitutional change.

The amendment battle is widely portrayed as two professions pitting themselves against one another. But many of the people involved insist the campaigns are about quality health care.

"We don't have any desire to fight with lawyers," said Florida Medical Assn. President Carl W. Lentz III, MD. "We want to keep doctors in practice to treat patients."

The other camp is equally passionate.

"All our organization is trying to do is to protect society from bad doctors," said Gary E. Susser, a Florida trial lawyer who says his son was permanently and severely injured by medical malpractice.

Reducing lawyer fees

A majority of physicians believe the health care system would benefit from limits on how much trial lawyers collect in medical malpractice cases. This would prevent lawyers from filing meritless lawsuits and ensure that patients end up with the money they deserve.

If that happens, doctors say, the Florida insurance market would become more stable and they'd be able to continue treating patients.

"We are only doing this for one reason: To preserve access to quality care for patients in Florida," Dr. Lentz said.

The physician-supported referendum will ask voters to approve a constitutional amendment that would require that patients receive 70% of the first $250,000 in medical malpractice awards. Patients would receive 90% of any money awarded above that amount.

Under what will be marked Amendment 3 on the Florida ballot, lawyers would still be allowed to receive payment for court and witness expenses. Doctors say lawyers routinely get more than 30% of awards.

"This is going to put more money into patients' pockets," said John Knight, FMA's general counsel. "Our amendment is a pro-patient amendment."

Doctors believe the measure would still allow lawyers to file suits with merit but discourage them from pursuing meritless cases.

A reduction in the number of frivolous suits would stabilize premiums because liability insurers wouldn't have to spend as much money to defend cases that should never have been filed, physicians say.

"We have been losing jobs left and right," said urologist Frank D. Mastandrea, MD, president of the Hillsborough County Medical Assn. "This is a change that needs to occur."

Trial lawyers, however, don't agree with that assessment.

The doctors' proposed amendment would reduce accountability for health care negligence and incompetence, said Patti O'Regan, a nurse practitioner and a board of governors member for Floridians for Patient Protection, an advocacy group formed to put the trial lawyers' amendments on the ballot.

If lawyers' share of awards was limited, patients would be forced to pay lawyers by their hourly fees, she said. Patients who don't have enough money to pay those charges wouldn't have access to the courts.

"Only the wealthiest Americans, such as doctors, will be able to find and pay for attorneys to take their cases," O'Regan said. "The safety net of contingency fee arrangements is the only access middle-class and poor Americans will have to the court system."

The physicians' amendment "would act as a total ban on medical malpractice cases because you wouldn't be able to find a lawyer to take a case," said trial lawyer Susser. "It takes so much money to fight these people."

The FMA's Knight argues that lawyers would still be paid large sums for their work.

"I don't think there is going to be a shortage of lawyers," he said.

Nearly three-fourths of voters polled this spring would vote for the physicians' proposal, according to Citizens for a Fair Share, an organization established by the FMA and others in support of the measure.

Addressing errors

On the other side of the debate, trial lawyers say the way to lower insurance premiums is to reduce medical errors. They argue that creating a more open system and getting rid of bad doctors would ensure quality medical care for Florida patients.

"Amendments 7 and 8 are the only pro-patient initiatives on the November ballot," O'Regan said.

Under Amendment 8, physicians would lose their licenses if they had three strikes against them, including final court judgments, final administrative agency decisions or binding arbitration. Lawyers say patients would be safer because doctors with repeated judgments against them wouldn't be allowed to treat patients.

The proposed amendment would do what the Florida Board of Medicine has been too afraid to do, O'Regan said. "It gets rid of doctors who refuse to learn from their mistakes and improve their service to patients," she said.

But doctors counter that the amendment would not accomplish that goal. Instead, they say, it would exacerbate the existing medical liability problem. Fearing that they could lose at trial even though they have a solid defense, doctors would be more likely to settle malpractice or negligence cases instead of taking their chances before juries, physicians say.

More settlements, they worry, would mean more money being paid out on cases that never should have been filed and even higher liability insurance rates.

"The intimidation and fear that currently prevails would continue because of doctors' fear of going to trial," said Tallahassee family physician Thomas Hicks, MD. "From the insurance standpoint, it could make things worse."

The lawyers' measure would make the state an unfriendly place to practice, he said.

"It would be all the more reason [for doctors] to get out of Florida," Dr. Hicks said. "Their effort will create a medical wasteland."

But Susser doubts doctors would settle. "If you've done nothing wrong, go to court and stand up for yourself," he said.

A May survey commissioned by Floridians for Patient Protection showed that 75% of voters favored the amendment.

Giving patients more information

In addition to the three-strikes rule, lawyers want to open records that until now have been closed. Under Amendment 7, patients would be able to review medical records associated with adverse medical incidents involving facilities and health professionals. Patients' identities would not be disclosed.

A more open system, trial lawyers argue, would prevent errors from being swept under the rug and would help patients make more educated choices when picking physicians.

"Peer review isn't working," O'Regan said.

Doctors say this amendment would hurt patient care. Dr. Lentz said that the system now allows medical professionals to review behavior that isn't meeting the standard of care and change it before it becomes a problem. "The reason you can do it is because it is privileged information," he said. "It's not discoverable."

The May survey showed that 78% of Florida residents would vote for the amendment.

Both camps are aware that all three measures might pass.

Doctors say if that happens, gains they could have made with their amendment would likely be dulled by the proposal to open up access to records. So, the two sides are working to educate voters on the issues.

Political experts believe that may be a tough task this year.

Although medical liability has been a hot topic in Florida in the past couple of years, a lot of attention is being focused on the presidential race. Florida is one of a handful of battleground states still up for grabs. That attention is even more intense in Florida because of the ballot-counting controversy in the 2000 presidential election between George W. Bush and Al Gore.

On top of that, pollsters say, voters also are more concerned about foreign policy, including the war in Iraq and the situation in Afghanistan, than they have been in years past.

"This is a very unusual political season," said George A. Gonzalez, PhD, a political science professor at the University of Miami. "Issues like this that would normally get a lot of attention have been crowded out."

But, Gonzalez said, medical liability topics likely will gain a little more attention as ads for the proposals hit the airwaves.

"It may be premature to talk about this because the two sides haven't put forward all of their ads yet," he said.

But the blitz is coming soon, and after that voters will have the final say.

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Three thumbs up

Early polls show that Florida voters would approve a constitutional amendment put forward by physicians and two put forward by trial lawyers.

Proposed amendment In favor
Limiting attorney fees 74%
Taking away a medical license after
three judgments against a physician
Allowing patients to see records
tied to adverse incidents

Sources: Citizens for a Fair Share and Mason-Dixon Polling & Research Inc.

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External links

Citizens for a Fair Share (link)

Floridians for Patient Protection (link)

Florida Supreme Court advisory opinion to the Florida attorney general on the medical liability claimant's compensation amendment, in pdf (link)

Florida Supreme Court advisory opinion on a proposed constitutional amendment concerning patients' right to know about adverse medical incidents, in pdf (link)

Florida Supreme Court advisory opinion on a proposed constitutional amendment concerning public protection from repeated medical malpractice, in pdf (link)

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