Florida bills limit scope of liability amendments

Florida physicians struggling to stay afloat in a challenging medical liability climate received some relief thanks to recently passed legislation designed to limit the scope of two constitutional amendments voters approved despite doctor objections to them last fall.

The bills, which Florida Gov. Jeb Bush signed in June, impose strict rules on the November 2004 amendments that established a "three strikes" rule under which the state could take away physicians' licenses and allowed patients to see medical records and reports connected to "adverse" incidents, including information pertaining to peer review procedures.

In addition to narrowly defining what constitutes a strike against a doctor, the legislation creates tight restrictions for who can review medical records and what documents they can access that are connected to "adverse" incidents.

That makes the amendments' impact on the state's medical liability climate more predictable, physicians say. It also makes doctors more likely to continue practicing in the state instead of going elsewhere. And that, in turn, leads to better access to care for patients, physicians say.

Doctors lobbied hard to ensure legislation defining exactly how the amendments would be implemented included language limiting the amendments' negative impact on physicians and medicine.

"We won, if you want to call it that, because they're not so all-encompassing," said Florida Medical Assn. President Dennis Agliano, MD, an otolaryngologist in Tampa. "Obviously, [the legislation] made it better, although if the amendments weren't there at all, that would be best."

Web Brennan, president of the Academy of Florida Trial Lawyers, said the legislation "guts" both amendments and leaves "the fox guarding the henhouse."

"This is not about the lawyers. This is about the citizens. It's their amendments," he said. "Where is the fairness?"

How the amendments will work

The "three-strikes" amendment will still strip physicians of their medical license if they have three medical malpractice judgments against them.

But the new law allows the Florida Board of Medicine to be the only body that can make that decision, narrowing the way in which physicians could receive a strike against them.

The law also establishes that a single medical liability incident counts only as one strike, no matter how many plaintiffs or findings there are.

Under the original wording in the amendment, physicians worried that they could receive two strikes for the same incident because they would have a jury verdict against them and medical board action against them.

In addition, the new law establishes that settlements and jury verdicts in civil cases do not ultimately determine whether a doctor receives a strike. Only the Board of Medicine, which has to have "clear and convincing" evidence, can rule whether a physician deserves a strike in a civil case with a judgment.

Attorneys, who are disciplined by their own bar associations, have similar protections from a higher standard of evidence, Dr. Agliano said.

The second voter-approved amendment, meanwhile, would have given any patient access to virtually any record related to an "adverse" incident, including documents from peer review procedures. The new law curbs that access to protect peer review immunity, physicians said.

Under the new law, people can access records only after being a patient who experiences an adverse event. Then, the request will be limited to records involving the incident. The law also stipulates the amendment only applies to records created within four years of the information request.

The new measures apply only to events that occurred after Nov. 2, 2004, when voters passed the amendments.

Florida physicians lobbied last fall against the two amendments, which were backed by the state's trial attorneys.

At the same time, doctors pushed their own amendment proposal, which sought to limit an attorney's contingency fees, giving patients 70% of the first $250,000 awarded in a medical liability case and 90% of any money awarded above that amount. Voters approved all three amendments.

The physician-backed amendment went into effect without any further tweaking. But the trial lawyer-backed amendments needed the Legislature's and the governor's approval, giving doctors another chance to make their case with lawmakers.

Doctors say having a chance to make that case was important. Shortly after the ballot initiatives passed, physicians reported an immediate chilling effect. Doctors resigned from peer review boards, and high-risk specialists left . A patient's access to care was at risk under the amendments' original form, doctors said.

"The public would not have been well-served had [the amendments] gone through the way the attorneys wanted," Dr. Agliano said.

"Physicians were not going to put themselves on the chopping block. You would have lost doctors."