Medical liability: Florida voters speak, but no one listens

A voter-approved amendment would have ensured patients a greater share of damages and cut the number of nonmeritorious lawsuits. But the state Supreme Court rejected it.

Posted Nov. 20, 2006.

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Florida voters spoke loud and clear at the ballot box in 2004: They wanted a constitutional amendment that guaranteed plaintiffs in medical liability cases a minimum percentage of an award or settlement by limiting the amount lawyers can take.

Disappointingly -- and harmful to the state's health care system -- the Florida Supreme Court ignored what 63% of Florida voters enacted.

Floridians two years ago said yes to a constitutional guarantee that plaintiffs receive at least 70% of the first $250,000 awarded in a medical liability case and 90% of anything exceeding that -- after the lawyers first receive their reasonable and customary expenses. Voters understood that the measure they passed, Amendment 3, would help contain health care costs in a state besieged by rising medical liability insurance premiums that are driving doctors out of business or out of state. Patients at the ballot box also knew it was a tort reform step to help give them better access to doctors.

But the Supreme Court in September said they would not draft new rules to reflect those changes. It also said it was OK for lawyers to ask patients to sign away the constitutional right that guarantees them a larger portion of settlements or jury awards.

It was a bad decision for health care in Florida.

Amendment 3 is good for health care because it ensures injured patients a greater share of damages awarded in cases with merit and it compels lawyers to absorb more of the risk involved with filing lawsuits without merit, said the American Medical Association/State Medical Societies Litigation Center in a court brief it filed along with the Mississippi State Medical Assn.

If lawyers assume more risk for filing lawsuits without merit, it will help reduce the number of those unwarranted lawsuits that clog the court system.

The amount of money and time nonmeritorious lawsuits suck up is staggering. Consider this: More than 70% of medical liability claims in 2003 were closed without payment to a plaintiff. Of the 5.8% of claims that went to a jury verdict, defendants won 86.2% of the time, according to Physician Insurers Assn. of America data from 2004. Yet the hope of a jackpot jury award -- with a large portion going to the lawyer -- continues to drive the system.

Fewer nonmeritorious lawsuits mean less pressure on physicians to practice defensive medicine. The Health and Human Services Dept. estimates that defensive medicine costs $47.5 billion a year in increased federal government payments. That does not even take into account what private payers lay out.

The court's decision to allow patients to waive their rights undermines the things that Amendment 3 is trying to accomplish.

Anytime a patient waives his or her constitutional right for a lawyer to take the case, it impacts all of the patients in the state. Market forces might compel other plaintiffs to sign away their rights, and waivers could become an industry standard.

Unfortunately, the Florida Supreme Court was swayed by the trial bar's argument that without the waiver some patients may have to represent themselves because they wouldn't be able to find someone to take their cases.

But that's just not likely.

Seventeen states -- not including Florida -- have a law or court rule establishing a specific limit or sliding scale on contingency fees attorneys may charge clients who file a medical malpractice claim. Patients in those states are still able to find legal representation.

Several of those states' experiences also dispel the trial lawyers' argument that Florida courts could find the amendment unconstitutional. Delaware, Illinois, Indiana and Tennessee are among the states where state supreme courts have ruled that these limits are constitutional.

The people of Florida spoke. Unfortunately, their state's high court listened to the trial bar rather than the majority of patients who cast their ballots in favor of a saner tort system.

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