Florida lawsuit takes swing at 3-strikes liability rule
■ A column analyzing the impact of recent court decisions on physicians
By Amy Lynn Sorrel — covered legal, antitrust, fraud and liability issues from 2005 to 2010, and has also written the "In the Courts" column. Posted Oct. 5, 2009.
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In some states, people convicted of three or more criminal acts get extra punishment after their third strike. In the Sunshine State, physicians face a so-called "three strikes and you're out" rule on medical liability judgments.
Florida voters borrowed the concept when they passed a constitutional amendment allowing doctors' licenses to be revoked if they had three medical liability judgments against them. The measure is believed to be the only one of its kind in the country.
But now an Orlando-based trial attorney, through the filing of a medical liability lawsuit, says the amendment was not properly implemented.
The lawsuit, filed in late July, alleged that a pediatrician, urgent care clinic and hospital failed to give adequately and timely treatment to a 6-year-old boy who presented with a fever and swollen ankle in January 2007.
The doctor diagnosed septic arthritis and admitted the boy to a nearby hospital for surgery. Hospital staff operated on him for compartment syndrome. About three weeks later, the boy's foot had to be amputated, according to the complaint filed in the 9th Circuit Court for Orange County.
The boy's parents sued and are asking the trial court to declare that any verdict against the doctor be counted as a "strike" against his license. At this article's deadline, no hearing dates had been scheduled.
The physician's attorney declined comment, citing the pending litigation. The doctor, clinic and hospital involved filed papers in September denying any negligence and asking the court to dismiss the case, according to court records.
In 2004, Florida voters passed Amendment 8, known as the "Three Strikes" amendment, under which physicians could lose their licenses if found guilty of three incidents of medical negligence. The findings could come through either a court action or an arbitration proceeding. Settlement agreements are excluded.
The following year, the Legislature enacted a statute to put the amendment into effect. The 2005 law required that, for a liability judgment to count as a strike, the negligence finding had to be proved by a standard of clear and convincing evidence -- the same standard the state medical board uses to determine whether to discipline a doctor for standard of care violations.
If a medical liability judgment falls short of the higher standard, the law allows the state Board of Medicine to review whether the alleged negligence would be supported by clear and convincing evidence.
The problem, said Scott R. McMillen, the plaintiff attorney in the case, is that civil medical liability actions are held to a less-stringent standard. Plaintiffs must prove negligence based only on a preponderance of the evidence.
As a result, the implementing legislation effectively nullified the three-strikes amendment because it set a standard that is nearly impossible to meet, he argued.
"No cases have been tried on this higher burden of proof the Legislature said they must be based on, and no plaintiff is willing to do that," McMillen said.
While the medical board always had the ability to revoke doctors' licenses based on malpractice violations, voters decided to take extra measures, McMillen said. Patients wanted to take a more direct role in physician discipline, so that lawsuits they file would impact a doctor's license without board intervention.
The lawsuit is asking the trial court to declare the 2005 law unconstitutional because it conflicts with the purpose of the amendment and prevents it from taking effect as intended. "Instead of enabling the smooth working of the amendment, the legislation totally gutted it," McMillen said.
Liability as quality gauge
The physician community, including the American Medical Association, has long argued that liability data are not a good litmus test of physician quality.
If judgments are going to impact a doctor's license, however, they should be held to a tougher standard, said Jeffery M. Scott, the Florida Medical Assn.'s general counsel and senior director of governmental affairs. The organization lobbied against Amendment 8 and is monitoring the case, Evans v. Soremi.
"The proper forum for determining whether a physician committed malpractice and should lose his license is the medical board," Scott said.
"You have a much lower standard in a civil lawsuit, and it goes to a jury, who are easily swayed by emotion and don't have the ability to look objectively at the medical science," Scott said.
"That's the function of the medical board, and they should be the ones making those determinations."
He said that nothing in the language of the three strikes amendment detailed how it was supposed to be put in action. That was up to the Legislature, he said. The FMA supported the 2005 enabling legislation.
Rather than helping quality, as the amendment purported to do, the measure has forced many doctors to settle cases unnecessarily to avoid the possibility of a strike against their license, Scott said. "Nobody wants the consequences, so cases are more likely to settle than before."
Since July 1, 2005, when Amendment 8 took effect, the state Board of Medicine and Board of Osteopathic Medicine have permanently revoked or accepted permanent relinquishments of licenses of 64 physicians for standard of care violations, according to the Florida Dept. of Health. No licenses have been revoked based on the three-strikes provision, said department spokeswoman Eulinda Smith.
McMillen said adverse judgments against doctors are rare, and a so-called strike would not affect settlement discussions until the potential for a third judgment arose.
Short of that, "it's just one strike at a time and sends a warning message that injured patients wanted to send, which is: 'Please don't let this happen again,' " he said. "And if you get somebody that has three [judgments], then he or she is the bad apple, and that's really what this [amendment] was intended to address."
Setting a precedent
While the legal challenge is believed to be the first on the three-strikes measure, McMillen said he has a Florida Supreme Court precedent on his side.
In a March 2008 ruling, the high court undid similar legislation that put another constitutional amendment into play.
Amendment 7, dubbed the "Patients' Right to Know" amendment, passed alongside the three-strikes measure and allowed patients to access hospital records on adverse medical incidents, including related peer review documents.
The two amendments, backed by the trial bar, came in response to the doctors' campaign to cap attorneys fees in medical liability cases, which voters also approved in a third ballot measure in 2004.
As for Amendment 7, justices found the enabling legislation unconstitutional because it inappropriately limited the scope of the amendment by denying patients the right to retroactively open records created before its passage.
Justices in Florida Hospital Waterman Inc. v. Buster said the language in the ballot measure made it "abundantly clear that the chief purpose of Amendment 7 was to do away with [prior] restrictions on a Florida patient's access to a medical provider's history ... because such history may be important to a patient."
The legislation on Amendment 8 is undermining patients' rights to use medical liability judgments as strikes, McMillen said.
The FMA's Scott said the three-strikes amendment does comport with the enabling legislation. But one thing the amendment has taken away, he said, is the ability to recruit new doctors to practice in Florida, a state already struggling with low reimbursements and high costs for liability insurance.
Amy Lynn Sorrel covered legal, antitrust, fraud and liability issues from 2005 to 2010, and has also written the "In the Courts" column.