by Richard Prior
Staff Writer
The American Bar Association has released a report that it hopes will give the public enough information to reject Amendment 3, which would cap contingency fees in medical malpractice suits.
Amendment 3, sponsored by the Florida Medical Association, would limit attorneys’ contingency fees to 30 percent of the first $250,000 in a medical malpractice judgment. They would get 10 percent of any amount above that.
Physicians have taken the position that contingency fees in medical malpractice suits are a significant factor in soaring liability premiums, that there is a rising number of “frivolous” lawsuits and, many insist, even meritorious suits result in “excessive” fees for lawyers.
The amendment’s true goal, trial lawyers contend, is to eliminate all malpractice suits.
“This goes to a victim’s right to obtain an attorney,” said Ed Blumberg, past president of The Florida Bar. “Most lawyers won’t accept cases that have a compensable value of less than $250,000 because it may cost them $100,000 in court costs alone.”
Blumberg, president of Deutsch & Blumberg in Miami, was one of 15 members of the Task Force on Contingent Fees, established by the ABA’s Tort Trial & Insurance Practice Section.
Steve Lesser, a construction lawyer and shareholder with Becker & Poliakoff in Fort Lauderdale, said he was asked to chair the task force for two reasons in particular. He has led ABA committees in the past, and he has never handled a medical malpractice case.
“I was told, ‘You don’t have a dog in this fight,’” he said. “What I understood, with medical malpractice, was there was this litigation explosion, junk lawsuits out there being filed.
“We were to find out if there was any truth behind that And, if so, how is that impacting medical malpractice.”
While the report contains information about the tort system as a whole, it pays particular attention to contingency fees in medical malpractice cases.
Lesser wanted a broad cross-section of representatives to take part in the task force, which convened in May 2003. Defense as well as plaintiff lawyers, representatives from insurance companies and medical associations.
Among those who attended the six meetings held around the country were representatives from AIG Technical Services, Chubb & Son and McDonald’s Corp.; counsels for corporations, individuals and government entities; an assistant director of the Bureau of Consumer Protection; an attorney who specializes in defense of pharmaceutical companies, health insurance carriers, medical negligence, construction disputes and employment issues; and university law professors.
The Florida Medical Association was invited to send a delegate but declined.
In its report, the panel unanimously agreed, “Medical malpractice victims have a right in an equitable system of justice to seek redress for their injuries, and a reasonable contingent fee is essential to preserve that right.
“Because medical malpractice claims are highly complex and expensive to pursue, competent counsel often decline to accept legitimate cases because of the high cost of pursuing a claim.”
According to independent studies examined by the task force, one in every 25 or 30 persons who enters a hospital nationwide “will fall victim to a medical error that causes injury or death,” the report concluded. “Depending on how conservative a definition of ‘negligence’ is adopted, somewhere between 100,000 and 200,000 persons die each year as a result of these iatrogenic (induced by physician or hospital) causes.
“That puts medical mistakes somewhere between the third and eighth leading cause of death in the U.S., ahead of car accidents, breast cancer and AIDS, a total that equates to about two 747 crashes every three days.”
In that sort of atmosphere, lawyers are not convinced that caps — whether on contingency fees or noneconomic damages — will accomplish the stated goal of putting the brakes on rising premiums.The most prominent example they cite is California, where voters approved “pain and suffering” caps at $250,000 in 1975.
By 1988, premiums for California physicians had jumped 450 percent.
Bar associations are insisting that Amendment 3 has little or nothing to do with liability premiums. The object, they claim, is to close the courthouse to those least able to pay.
“This amendment has the effect of giving immunity to doctors and hospitals and putting them above the law,” said Blumberg. “What it says is, if you give someone the wrong blood, if you cut off the wrong leg, if you don’t tend to a patient in the hospital and they died, if you give them the wrong medicine, there’s no accountability. The victim will go without.
“This amendment is not a lawyer-doctor issue as much as it is a patient issue. The people don’t realize that, if they vote for this, it is going to be harmful to them. Will it help doctors? Not really. Will it hurt lawyers? We’re trained to do all different types of practice.”
As the fight between doctors and lawyers has gotten more bitter, one side’s “positive” ads have become the opponent’s “propaganda.” Debate has already been reduced to fit on a bumper sticker. It doesn’t help that bumper stickers are being reduced to a letter and a number.
“The Task Force believes that both the medial profession and the plaintiffs’ lawyers describe legitimate grievances and make justifiable claims to improved systems, both legal and medical,” according to the report. “But because the debates rely heavily on misinformation and misunderstanding, the proposed solutions, especially the limitations on contingent fees, would only sacrifice justice at the altar of expedience.”
The claim that there are a lot of “frivolous” lawsuits is not true, the report insisted. Nor is the overall number of suits rising, the panelists found.
“To the contrary, recent national studies of state court data show that tort filings are declining,” according to the National Center for State Courts.
“In light of the type of money lawyers are required to put up in order to fund a (malpractice) suit, it would be economic suicide to file a frivolous lawsuit,” said Lesser.
One reason for the rise in liability premiums, Blumberg said, is the decision by more doctors to “go bare.”
“They found that lawyers might not sue them if they didn’t have insurance,” he said. “They found they could protect their assets in various ways — limited liability corporations, putting money in their spouses’ names.
“Year after year, as doctors go bare, the ones that do carry insurance find their rates going up and up. The insurance industry would probably very much like it if all doctors had to carry insurance. Then they could have different rates — where the good doctors would hopefully pay less than those with . . . lesser skills.”
As one way of easing the pain of high premiums, doctors could borrow a practice from the bar associations. All attorneys contribute to a Bar security fund that compensates clients if a lawyer has stolen from them or mistreated them financially.
There are far better ways to handle the problem of soaring liability premiums, Blumberg and Lesser agreed. Amendment 3 is not one of them.
“My view,” Lesser said, “is that somebody should have intelligently gotten together with the lawyers, the doctors and the insurance industry and come up with a plan — as opposed to just tossing it to the voters, who look at the ballot and say, ‘That’s great. The lawyers get less; I get more. I’m voting for it.’”
“What this really means is there will be no more lawyers to prosecute victims’ cases,” Blumberg said. “This is draconian. And the person who gets hurt is the victim.
“There is a saying in the law that the law protects those that are diligent, not those that sleep on their rights. The time for the voter to be heard on this is not after the fact in a legal challenge, but now that it’s on the ballot.”
To view a copy of the report, go to www.abanet.org/tips/contingent/home.html.