by Richard Prior
Staff Writer
When physicians, attorneys, insurance carriers and consumers start duking it out in the ring, who will be the last one standing?
Nobody knows. But hardly anyone is betting on the consumer.
Of the eight constitutional amendments approved for the Nov. 2 ballot, three are related to health care.
Physicians have collected $4.5 million to see their measure passed. Attorneys, who are counterattacking with two amendments, are armed with $12.8 million for their cause.
For all that — however the votes go — it is hard to find someone who believes that dawn will break Nov. 3 on a safer or more affordable health care system.
The Florida Medical Association’s proposal would limit the contingency fees that plaintiff lawyers may collect in medical malpractice suits.
One of the Academy of Florida Trial Lawyers’ amendments calls for doctors to surrender their licenses if they lose three medical malpractice cases or three administrative disciplinary actions. The other would give patients greater access to incident reports involving doctors and health care facilities.
The Supreme Court of Florida on July 15 approved all three amendments for the general election. The court found that each amendment conformed to the single-subject requirement, and that the ballot title and summary are stated in “clear and unambiguous language.”
“I think (the FMA amendment) will lose,” said C. Rufus Pennington III, with Margol & Pennington, who primarily represents patients in medical malpractice cases. “But let’s say it’s passed. The best attorneys won’t take these cases, but there won’t be any shortage of TV advertisements from the chiropractic, whiplash, soft-tissue lawyers.
“Doctors will still get sued, but they’ll get sued on a volume basis.”
The trial lawyers actually would have dropped their proposals if the FMA did the same, said Wayne Hogan, of Brown, Terrell, Hogan. The leadership declined.
“Our organization is not going to simply have the consumers’ right to lawyers damaged and not have the doctors’ organization also feel some pain,” he said. “It’s part of the dangerous game that the leadership is playing with the doctors’ future.
“And the average doctor doesn’t realize the risk their leadership is putting them in by going forward with this.”
According to supporters of the FMA proposal, lower attorney fees will mean fewer malpractice suits, which will reduce the number of judgments, which will allow insurance carriers to lower high-flying premiums for physicians.
Plaintiff attorneys insist that the doctors’ problem is with insurance carriers, not them.
“This would be an example of the government interfering with the relationship of the person who needs professional service with the person providing that service,” said Hogan. “This is not being proposed to protect the interest of the consumer. It’s very short-sighted.
“It is the approach being taken by the Florida Medical Association leadership and its staff. It is simply calculated to take away the rights of the doctor’s own patient.”
Kelly Mathis disagrees.
A defense lawyer in medical malpractice cases for more than 16 years, Mathis sees several reasons why more physicians are reportedly taking down their shingles or moving to states where insurance coverage is said to be more reasonable.
“Let’s look at the phone book,” he said. “There’s a huge, huge grab for (malpractice) cases. Lawyers are spending millions of dollars to advertise, trying to get those kinds of cases.
“I don’t think they’re going to walk away from them any time soon. The incentive is too great to get those kinds of cases in the door and signed up.”
Hogan argued that his firm is cautious about the cases it takes. The entire action may be time-consuming without even going to trial. The notice of intent to file and presuit investigation may lead to arbitration, or mediation and settlement conferences.
And there’s no guarantee the firm will win its contingency case.
“There’s a very small percentage (of doctors) that are responsible for the vast majority of the claims that get pursued,” said Hogan. “We might look at potential claims against a lot of doctors but in the end conclude it was professional judgment.
“Nine out of 10 people who go to lawyers with what they believe is medical malpractice are sent away.”
All sides apparently agree something needs to be done. But confounding the voters with the wording of the FMA amendment is not a good first step, said Pennington.
“This constitutional amendment is very confusing,” he said. “You read it and read it and wonder what the heck it means.”
The full text of the proposed amendment is:
“In any medical liability claim involving a contingency fee, the claimant is entitled to receive no less than 70% of the first $250,000.00 in all damages received by the claimant, exclusive of reasonable and customary costs, whether received by judgment, settlement, or otherwise, and regardless of the number of defendants. The claimant is entitled to 90% of all damages in excess of $250,000.00, exclusive of reasonable and customary costs and regardless of the number of defendants. ...”
There would have been a much simpler way to get the message across, said Pennington.
“If they wanted to cap attorney fees at 10 percent, it would have been very simple to draft an amendment to do that,” he said. “This opens a real Pandora’s box of confusion and ambiguities.”
In his dissent from the Supreme Court’s July 15 ruling, Justice R. Fred Lewis said the FMA amendment was deliberately confusing.
“. . . It is clear that the singular and only purpose of this proposed amendment is not as printed,” the justice wrote, “but is instead the unstated ulterior purpose of interfering with the relationship between injured citizens of Florida and representatives they may wish to secure to protect their interests . . .
“Without knowledgeable and experienced attorneys to provide representation, the citizens of Florida will have no meaningful access to the courts, and the end result will be that the courthouse door will be open to only those wealthy enough to afford to compensate an attorney on some non-contingency fee basis.”
The provision for contingency fee cases, Pennington agreed, “has always been regarded as the key to the courthouse for the average man and woman. This amendment is intended to make it so unremunerative for a highly qualified attorney to take a plaintiff’s medical malpractice that he wouldn’t do it.
“Is that good for patients? Of course not. They will be boxed out of their ability to hire the very best trial lawyers.”
The attempt to put a lid on attorney fees comes one year after the Legislature restricted the damages that may be awarded in medical malpractice cases.
The noneconomic (“pain and suffering”) damages in most cases are capped at $500,000 from each defendant, not to exceed $1 million from multiple defendants.
Noneconomic damages for treatment that causes a patient’s death or a “permanent vegetative state” are capped at $1 million “from all practitioner defendants” plus $1.5 million “from all nonpractitioner defendants (such as hospitals), regardless of the number of claimants.”
No cap was placed on economic damages, such as lost pay and medical bills.
After all the wrangling, in-fighting and the Legislature’s three special sessions last year, the result made no one happy. The AMA wanted a $250,000 cap with no exceptions. Malpractice victims said the limits on damages would limit the appeal that expensive cases had for attorneys.
Reports from the field are mixed. The legislation passed in some states has reportedly slowed the rise in premiums. Others have failed.
When California voters approved the Medical Injury Compensation Reform Act in 1975, noneconomic damages were capped at $250,000. By 1988, physicians’ malpractice premiums had increased 450 percent.
Another ballot initiative was required to roll premiums back 20 percent.
In a news release, Carmen Balber, consumer advocate with the Foundation for Taxpayer and Consumer Rights, said, “A malpractice cap will never rein in the real crisis. “Only insurance reform — including rate regulation and a mandated rate rollback — will lower doctors’ premiums and stabilize the malpractice market in Florida.”
From Mathis’ vantage point, a suit-happy public has destabilized the insurance market. Only a minuscule number of doctors actually commit malpractice, he said. But they aren’t the only ones being sued.
“My perception is that 99.99 percent of the physicians out there are doing their best to help the patient,” he said. “In my experience, it’s not the bad doctors that are getting sued. Some excellent, excellent doctors are.
“Why? Medicine is almost a victim of its own success. These days, we can cure so much. Even the excellent doctors are being sued, maybe because there’s been a complication or because they were not able to achieve a perfect, timely cure for whatever the patient went to see the doctor for.”
In some cases, Mathis pointed out, physicians are faced with an almost impossible uphill climb.
“A lot of times, we’re not arguing over whether you’ve got a whiplash-type soft-tissue injury,” he said. “Some of these cases involve people with serious, serious damages. I’ve tried those cases.
“What do you do when there’s a 5-year-old girl with severe brain damage brought into the courtroom? When the jury can’t decide, they go back to stage one. Who’s more persuasive? Who do you like better? Who’s arguing harder?
“And they come back to, ‘We’ve got a damaged little girl here. Who’s going to take care of her?’ Those are tough, tough things to get over.”
The Palm Beach Post editorialized that one solution to soaring premiums would be for every doctor to make annual payments into “a fund that would provide enough money for jury awards and build up reserves. Doctors would pay on a sliding scale, based on risk of specialty, but all doctors would save big on premiums.”
Mathis suggested that perhaps malpractice cases should be decided by something akin to “blue-ribbon” juries — “either a professional jury or a jury of health care providers.”
“Some of these issues are horribly complex,” he said. “It’s difficult to grasp why a surgeon made one decision instead of another. All the jury’s got to go on is the word of the hired gun the plaintiffs have hired.”
Those ideas may help. But they’re not the starting point. said Pennington:
“Until the medical profession, the legal profession, the consumer, health care services and State government — for that matter, the federal government — actually get together and try to figure out the fairest and best way to take care of people who are injured through substandard medical care, the problem is never going to be solved.
“It’s going to take the insurance industry, the doctors, the lawyers and everybody else working together. And that seems to be a long way off.”