Florida doctors and lawyers turn to waivers after tort ruling

With dueling legal forms, Florida physicians and lawyers are asking patients to relinquish certain rights in medical liability cases. Their efforts are the result of a state Supreme Court ruling on a contentious tort reform measure that limits what plaintiff lawyers can collect.

The September decision by Florida's high court lets patients waive a cap on lawyers' fees, which voters approved as a constitutional amendment in 2004. Amendment 3, strongly backed by the Florida Medical Assn., restricts plaintiff attorneys' fees to 30% of the first $250,000 awarded to patients and 10% of damages greater than $250,000.

But some trial lawyers circumvented the cap by asking patients, before agreeing to accept a medical liability case, to waive their rights to a higher percentage of the jury award. Attorneys could collect fees that range from 33% to 40% of awards up to $1 million, 20% to 30% of awards between $1 million and $2 million, and 15% to 20% of any recovery greater than $2 million. This is the maximum percentage that lawyers can accept under a court-established scale.

The FMA last year had petitioned the Supreme Court to draft a rule that reflected the changes passed in the amendment. The American Medical Association/State Medical Societies Litigation Center, along with the Mississippi State Medical Assn., filed comments in support of FMA's petition.

But in a preliminary ruling last December, judges decided against the medical society's recommendation. The court said the constitutional right was one that patients were entitled to give up if they couldn't find a lawyer to take their case. It finalized its decision in September. Justices added that the waiver does not require their approval, unless the fees lawyers are requesting exceed the court-sanctioned maximum.

Doctors argued that the cap on attorneys' fees would prevent trial lawyers from filing meritless lawsuits, while ensuring that patients in medical liability cases receive the bulk of the monetary award. That would help keep insurance rates stable and allow doctors to stay in the state to practice, said FMA President Patrick M. J. Hutton, MD.

"This really is an access-to-care issue and an avenue to preserve it," said Dr. Hutton, an orthopedic surgeon in Jacksonville.

First Professionals Insurance Co., one of the state's largest medical liability insurers, attributed a drop in claims to Amendment 3. This helped the company reduce its base rates by 8%, which will take effect Dec. 1. Some specialties will receive cuts of up to 19.5%, FPIC announced. The passage of Amendment 3 "was a clear mandate that voters wanted a cap on contingency fees," Dr. Hutton said.

Asking for a damage cap

In response to the high court ruling, the FMA is arming doctors with a legal form, too. It would counter the trial lawyers' efforts by asking patients to agree to limit the amount they could collect for nonecomomic damages to $250,000, if "any controversy arises out of, or in any way relating to, the current or past diagnosis, treatment or care." It does not restrict economic damages. Doctors tried and failed to put this cap, modeled after California's MICRA reforms, into law. Instead, the Florida Legislature in 2003 passed a $500,000 cap that jumps to $1 million under certain circumstances. Doctors say the limit isn't enough to significantly lower premiums in Florida, which still has some of the highest rates in the nation.

Dr. Hutton said that the FMA is implementing statewide physician training sessions on how to inform patients about the waiver without intimidating them.

"This document is not to be used to coerce patients but to educate them," he said. "Patients will have the right to review it, and physicians have the right to decide whether to use it."

But trial lawyers criticize doctors' efforts as not being in patients' best interest. "The FMA doesn't want victims of medical malpractice to collect any award at all, and once again, they want to stop cases from reaching the courts and jurors," said Debra Henley, deputy executive director of the Academy of Florida Trial Lawyers.

The high court ruling on Amendment 3 recognizes patients' rights to choose a lawyer and have their day in court, Henley said. "They should not sign these medical waivers because they will not have any idea what it means."

Under the December 2005 court rule, on the other hand, patients would be fully aware of their right to waive the constitutional limit on attorneys' fees, Henley added.

The state Supreme Court said that any kind of waiver must be in writing and lawyers must inform patients both orally and in writing of their constitutional rights under Amendment 3. Patients can still request court review of the agreement if they wish and have three days to back out.

Amendment 3 is flawed because it limits what plaintiffs' attorneys can make but not what defense attorneys can earn, Henley said. "It's a one-sided way to make it difficult, if not impossible, to find a lawyer to take these extremely difficult cases."