Florida courts take up two tort reform ballot measures

As Florida physicians settle into the new year, it is still not clear exactly how ballot issues that allow patients to see reports involving "adverse incidents" and create a "three strikes" rule against physicians ultimately will shake out. Doctors in the state oppose both measures.

"There is still a lot of uncertainty," said Bill Bell, the Florida Hospital Assn.'s general counsel. "The amendments are very broad and very vague. We still need guidance from the courts and Legislature before we can go forward."

The courts have just begun to consider the legal challenges against the amendments, which were passed in last November's elections.

Leon County Circuit Judge Jonathan Sjostrom in December 2004 rejected the FHA's attempt to try to temporarily halt the measure that says that hospitals have to make information related to "adverse incidents" available. Included in this category are peer review documents.

The judge said questions on how the constitutional amendment would work have to be answered as individual legal cases arise. The FHA appealed the ruling and in the meantime expects that other peer review laws will shield the information.

"There are protections from being compelled to testify in court about peer review and laws protecting the confidentiality of peer review," Bell said.

Physicians and hospitals are looking to the Florida Legislature to clarify how strikes would be counted against physicians under the constitutional amendment that calls for taking away a doctor's license if that physician has three strikes against him or her.

In a separate lawsuit, the FHA asked the Leon County Circuit Court for a temporary injunction against the measure.

In this case, Judge Janet Ferris late last year issued a temporary injunction against the three-strikes rule, giving state lawmakers time to better define how that program would work.

"Our hope is the Legislature will understand the ramifications and act on it," said Lisette Gonzalez Mariner, spokeswoman for the Florida Medical Assn. "If they don't, the judge will have to act on it." Florida's Legislature is scheduled to convene for its 2005 session on March 8.

The FMA wants one incident to count only as one strike against a physician, Mariner said. The fear is that a court verdict against a physician and a medical board action against that physician for the same incident could count as two strikes.

The FMA is also calling for the rule to apply to incidents that occurred after Nov. 2, 2004 -- the day that voters passed the constitutional amendment. In addition, doctors want to ensure that the burden of proof and standard of care required in Florida would be applied to actions that occur in another state.

"We're trying to assure doctors and have them take a wait-and-see attitude right now," Mariner said.

Attorney fee structure unchallenged

At press time, there had been no legal challenges to a physician-backed constitutional amendment that limited attorney fees.

Florida voters in November 2004 approved a change that allows patients to collect 70% of the first $250,000 awarded in medical malpractice cases and 90% of the remainder of the award. Attorneys still would be paid for court and witness expenses.

Doctors proposed the amendment because they contend that it will allow more of the money to go to injured patients, rather than lawyers. They also say it will make lawyers less likely to file nonmeritorious cases.