by Bradley Parsons
Staff Writer
In the ongoing fight between Florida’s legal and medical professions, both sides claim defeat in the electoral battle fought last November.
A trio of ballot initiatives passed in the last election that has the potential to damage both professions. One constitutional amendment limited how much lawyers can collect on medical malpractice cases. The others will make it easier for patients to learn about a doctor’s past malpractice while stripping doctors who commit repeated malpractice of their license.
Leading up to the election, both sides spent millions in a lobbying and public relations fight in an attempt to sway the public. But in a choice between doctors and lawyers, the voters decided to go against both of them.
The amendments passed easily, but the campaign didn’t stop there. Representatives for the legal and medical professions are still trying to rally popular and legislative support to their side.
Although the voters approved the amendments, the legislature is still in the process of writing the laws that will administrate the new laws. So between the legislature and a near certain challenge to the Supreme Court of at least one of the amendments, there’s still ample reason for both sides to continue to make their case.
The group making the most noise is the medical malpractice attorneys. They say amendment 3, by capping what they collect on the suits, forces attorneys to accept only clients that look like slam-dunk wins with a large award likely. Sean Cronin, an attorney with Spohrer, Wilner, Maxwell and Matthews, said the bar had been raised for malpractice attorneys to make a successful case.
“It’s not enough to show clear liability any more,” said Cronin. “You have to have in injury that leads directly to an economic loss that a jury can understand. They have to have shock value. If they have the ‘wow’ factor, that’s the only kind of cases we can look at.”
The result is a lot of meritorious cases go unheard, because attorneys don’t want to go through the time and expense to prosecute the notoriously complicated medical malpractice cases, if a payout doesn’t look likely.
Medical malpractice cases can cost firms hundreds of thousands of dollars and tie lawyers up for years. The new law, and the public relations fall out from the nasty political campaign, has made the cases even more difficult to prosecute, said Cronin.
He recently won a $4.4 million verdict for a malpractice case in Volusia County. But Cronin said he had to spend thousands more to arrange for additional expert testimony. That’s necessary because juries have become more suspicious of medical malpractice following the lawyers’ political fight with the doctors.
“I think if there’s a sniff that your case is frivolous, you’re going to lose. I am acutely aware of a change of attitude toward these cases in society,” said Cronin. “Now, a tie goes to the doctor, there’s no doubt about it.”
Attorney Tom Edwards, who handles malpractice cases as a partner with Peek, Cobb, Edwards and Ashton, agreed that lawyers are losing the public relations battle with doctors.
“Trial lawyers have become something of a political whipping boy in some areas of the country,” said Edwards. “People see doctors on a regular basis and they want to trust them and believe in them.”
Still Edwards pointed out that neither side came out of the last election looking very good in the eyes of voters.
“I think they kind of said, ‘A pox on both your houses.’ Let’s penalize the greedy trial lawyers and also punish bad doctors,” he said.
Unfortunately for Edwards, amendment 8, which strips doctors of their licenses following repeated malpractice, had an unintended effect in one of his trials. After ruling against Edwards, a juror approached him and said he proved his case but that the jury was hesitant to give the doctor a black mark.
Lisette Mariner, director of communications with the Florida Medical Association, said such cases are an exception. She said amendment 8 and 7, which allows patients to view their doctors’ malpractice history, will eventually take the heaviest toll on Florida’s medical industry.
The FMA backed amendment 3, because Florida was gaining a reputation as a hostile place to practice medicine, she said.
“The lawsuit climate in Florida was getting out of hand. You have fewer insurance companies in the state of Florida and some doctors simply can’t afford it. In some areas there is no insurance. In others doctors are paying well over $200,000 annually. And the rates are still increasing,” said Mariner.