The Florida malpractice votes
August 30, 2004
I am hoping (and certainly assume) that Roaring Remy will weigh in on this issue. Here is the AMA News story – Ballot battle: Two professions square off over attorney fees and quality of care.
Doctors and lawyers in Florida have taken the tort reform fight to a new level — dueling ballot initiatives.
On Nov. 2, Florida citizens will vote “yes” or “no” on three proposed constitutional amendments that address medical liability issues. Early polling shows that all of them are likely to pass.
The ballot box battle comes a little more than a year after the Florida Legislature passed a $500,000 noneconomic damages cap that doctors say won’t prevent premium hikes that are forcing them to leave the state, retire early or forgo high-risk procedures.
To solve the problem, doctors are proposing a constitutional change that would limit the amount that trial lawyers could collect in medical malpractice lawsuits so that injured patients get a bigger chunk of awards.
Trial lawyers are proposing two constitutional amendments. The first — commonly referred to as the “three-strikes” rule — calls for stripping doctors of their medical licenses if they have three medical malpractice judgments against them. The second amendment would let patients see medical records and reports connected with “adverse” incidents, including documents generated during peer-review procedures.
Between now and Election Day, airwaves will be buzzing with ads telling voters why they should vote for or against each constitutional change.
The amendment battle is widely portrayed as two professions pitting themselves against one another. But many of the people involved insist the campaigns are about quality health care.
These initiatives will help us gauge public opinion. I am very interested in following this vote. I certainly hope that the Florida physicians are successful at making their case.
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Related Posts
- Roaring Remy’s comments on the Florida votes
- More on Florida’s malpractice votes
- Florida malpractice cap passes
- Malpractice reform – Florida voters support physicians and lawyers
- Now Florida and Mississippi
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August 30th, 2004 at 1:24 pm
The battle over this dueling amendments has been heating up, with the integrity of Florida’s health system at stake.
The background of the physicians’ amendment, as I wrote on a previous blog, was the failure of the state legislature to approve a cap of $250,000 cap on non-economic damages, an amount endorsed by a task force made up of five state university presidents, including Donna Shalala(from the University of Miami)who served in the Clinton administration.
Physicians were not happy with this, which impelled the Florida Medical Association to draft this amendment to cap lawyers’ fees to 30% of the first $250,000 in a malpractice award, and 10 % of any award exceeding that amount. This is in contrast to as much as 40-50% that they now can charge for their fees.
By so proposing this amendment, physicians felt that this would address an imbalance that now exists in the current tort system in terms of exorbitant fees to lawyers, and at the same time allow injured patients to claim a major portion of the awards.
In addition, the number of multi-million dollar awards has been increasing, forcing many medical insurers out and the remaining six insurers last year to increase their premiums, making it difficult for a number of physicians to continue their coverage at prohibitive levels. At least 3,000 physicians in Miami and the surrounding areas are practicing bare, while obstetricians, neurosurgeons, and other high-risk specialists have either retired or cut down on their services. In central Florida area where I practiced for over 30 years, threats of ER, obstetric suites, and trauma centers closing rocked the area last year. Even radiologists were shying away from reading mammograms.
In short, there was indeed a crisis. In contrast to California, considered one of the five most litigious states in the country, Florida physicians are paying as much as three to four times for their malpractice premiums. MICRA, the cornerstone of California’s medical tort system, has as one its features what Florida physicians are seeking now: a cap on lawyers’ contingency fees.
Polls done for the FMA indicate that its amendment will likely pass.
As for the trial bar’s two amendments, physicians are fighting hard to educate the public about the devastating consequences that they would inflict, if passed.
The three-strikes amendments, for example, would practically wipe out all neurosurgeons and cardiovascular surgeons from the map of Florida, since statistics show that they are sued at least once every other year. Nor far from then are obstetricians, orthopedists, plastic surgeons, and other procedure-oriented specialists. That would leave a big gap in access to a number of surgical services, as happened last year when all the neurosurgeons quit the trauma center at the Orlando Regional Medical Center, forcing the Orange County government to bail the hospital out with an infusion of money, which at least temporarily cools down the crisis.
Lawyers, in addition, want this amendment to be retroactive, which again would force a number of physicians out of practice. We all feel this is illegal.
Since cases settled out of court, and before they go to trial, are not considered as strikes, this would give trial lawyers an instrument to bludgeon physicians into settling, even if they feel they have strong reasons to win. The unpredictability of jury verdicts, with a possible strike, can cower physicians into a corner where settling appears more inviting than risking a loss.
But most of all, this amendment would usurp the functions of the state’s Board of Medicine which reviews all cases of medical malpractice, with the discretion to suspend physicians’ licenses. This Board has been doing an excellent job, ranking at the top in terms of percentages of physicians disciplined last year.
Regarding the second lawyers’ amendment broadening access to medical records, including proceedings of Peer Review and other committees like Credentials and Quality Improvement, this would end the era of peer review in hospitals as we know it. That would impact heavily on promoting safety and high-quality medical care.
The language of the amendment is couched in language intended to make it appear this is a routine matter, although patients how have ways to obtain these records in cases of litigation. In truth, this would expand the data base which trial lawyers can use to mount ever increasing lawsuits against health providers. It would also supersede a long-standing state law which exempts discovery of peer review proceedings. After all, cases from negligence resulting in death, permanent disability, and other serious impairment are reported, mandatorily, to the state Agency for Health Care administration.
The trial lawyers admit readily they drafted their amendments mainly in retaliation for the physicians’ proposed amendment. They would withdraw their amendments, they told the FMA, if physicians do the same. NO WAY, physicians responded.
And so the battle is joined. The trial bar has a budget of $12 million, as opposed to $4 million for physicians. We are doing it on the grass-roots level, and we think the odds are in our favor. Florida will indeed make history and blaze new trails for other states to follow if we win our case.
August 30th, 2004 at 1:36 pm
Please excuse some misspellings and minor errors of diction in the above rant. I didn’t have a chance to correct them.
August 30th, 2004 at 6:44 pm
RGL do you have your own blog?
August 30th, 2004 at 9:08 pm
Jack, I don’t. I just keep current with DB. I never thought, being retired, I would be as busy as when I was practicing.
September 2nd, 2004 at 2:25 pm
It is interesting that in most tort concepts, caps on non-economic damages have little to no impact on verdicts and settlements. The difference in medical malpractice most likely results from the extraodinary severity of the pain and suffering of many malpractice victims – thus a cap that is unquestionably absurdly low for a lifetime of, say, catatstrophic brain damage or paralysis, saves the insurance companies a lot of money.
Capping attorney fees to save costs in the provision of medical care? Here’s an idea – doctors should volunteer to have their own fees capped first – something that would bring down medical costs much faster than “malpractice reform” – and if they like the result *then* they can advocate capping the fees of other professionals. A non-starter? That’s what I thought. Yet the attorney fee capping proposal would have absolutely *no* impact on medical costs – it’s pure spite, isn’t it?
As for the “Chicken Little” notion that sanctioning doctors with three malpractice *verdicts* against them would be tantamount to driving out of practice any doctor who has been *sued* three times, surely you jest. There is a world of difference between being sued and having a malpractice verdict entered against you. The former requires the preparation of a complaint and the payment of a filing fee. The latter requires a victory at trial, which is anything but a given in a medical malpractice case. Arguably, unless there are safeguards not described, the worst doctors will be somewhat shielded from the effects of this rule as they would settle on terms which require dismissal of the underlying lawsuit.
The primary reason doctors conceal the results of internal investigations and peer review, IMHO, is not to protect candor, or to ensure a more objective proceeding, but is to prevent their findings of culpability from being used in litigation. It must horrify medical malpratice lawyers, not only that such findings would pretty much seal an adverse verdict or settlement, but that the public would get an idea of the true scale of medical negligence and how few indicents of malpractice actually result in litigation.
October 1st, 2004 at 3:02 pm
Aaron, you’re an attorney, correct? Only an attorney would make some of the outrageous claims you’ve just made.
For starters, you say that “physicians should cap their own fees”, utterly oblivious to the fact that their fees are ALREADY being capped from without, by third party payors, whether they like it or not. No similar situation exists for you and your ilk.
Grab a clue, and grow a brain; while I wait for you to do so, I’ll be content in the knowledge that the VAST majority of the American public would– in full view of the facts– support physicians over lawyers any day.
October 7th, 2004 at 3:18 pm
Amendment 3 will endanger the health of Floridians and increase costs to taxpayers, a national consumer organization concluded in a policy analysis of the proposal on the Florida ballot in November. Download FTCR’s analysis.
The California-based Foundation for Taxpayer and Consumer Rights, a leading citizen research and advocacy group on insurance and tort issues, concluded that Amendment 3 would:
• “Encourage reckless and dangerous conduct by health care providers, particularly HMOs and incompetent or irresponsible medical staff, thus having a devastating effect on the safety of Florida patients.”
• “Dramatically interfere with the right of Floridians to hire a lawyer to protect them in a dispute with a doctor, hospital or other health care provider, to the point where only the wealthy will be able to hire an attorney.”
• “Not lower the price of medical malpractice insurance premiums.”
• “Result in increased taxes for Floridians as they are forced to absorb the medical and other uncompensated expenses of victims of medical malpractice.”
The analysis also noted that a possible drafting error could require that Amendment 3 be applied to all lawsuits in which the injured person requests compensation for medical bills, not solely to medical malpractice lawsuits, as has been advertised.
Amendment 3 is sponsored by the leadership of the Florida medical lobby, which, like its counterparts in many other states, has sought to restrict the rights of patients harmed by medical malpractice to seek compensation from health care providers.
Harvey Rosenfield, founder of the organization and author of a voter-approved ballot measure that lowered malpractice premiums in California by regulating insurance company rates and profits, stated: “We conclude that Amendment 3 will lead directly to the death and injury of Floridians at the hands of HMOs and incompetent medical staff. It will lower health care quality, raise costs to taxpayers and do nothing to lower insurance premiums for the state’s doctors.”
Noting that a recent study by Health Grades Inc. found that medical malpractice contributed to the deaths of almost 200,000 Americans a year in hospitals alone, Rosenfield concluded that “Amendment 3 is a prescription for disaster for Floridians.”
October 7th, 2004 at 3:20 pm
“Truly a wolf in sheep’s clothing”
- Justice Fred Lewis, Florida Supreme Court
The special interests behind Amendment 3 claim it will give victims of medical malpractice a “fair share” – its real aim is to make sure victims
never receive a share at all.
Amendment 3:
BAD FOR PATIENTS
Makes it nearly impossible for victims of medical errors to find a lawyer – even when a patient is killed or paralyzed.
Will result in a devastating increase in medical injuries, which already claims up to 5400 lives in Florida each year.
WILL COST YOU HUNDREDS OF DOLLARS A YEAR
Medical errors force each family in Florida an average of $517 dollars a year more in health care related costs, while those responsible for these errors get off scot-free.
Amendment 3 will make this even worse — That means higher insurance rates and higher health care costs for all Floridians.
A GIFT TO INSURANCE COMPANIES & HMOs THAT TAKES AWAY YOUR RIGHTS
Changes the Medical Liability System so that your right to hold the healthcare system accountable for a life-threatening medical error is virtually wiped out.
Makes the Medical Liability System even worse by giving insurance companies even more of an unfair advantage over average citizens in Florida’s legal system.
October 7th, 2004 at 3:21 pm
Medical mistakes kill at a minimum 195,000 Americans every year. That means medical errors kill 31 Floridians every day. That’s a real health care crisis.
If you listen to the Florida Medical Association’s leadership, the greatest crisis facing doctors is that their medical malpractice insurance premiums are too high. To fix the crisis, the misguided leadership at the FMA is proposing a constitutional amendment to limit the amount malpractice victims can pay their attorneys. The FMA leadership claims that doing this will lower malpractice insurance premiums. They’re wrong and they know it.
Amendment 3 will not:
Reduce malpractice premiums;
Eliminate frivolous lawsuits; or
Prevent bad and dangerous doctors from practicing medicine.
Amendment 3 will:
Undermine the safety and effectiveness of health care in Florida;
Severely restrict the malpractice victims’ constitutional guarantee to access Florida courts; and
Force taxpayers to pick up the tab for malpractice victims no longer able to provide for themselves or their families due to lost wages and life-long medical care.
We should change our constitution to give patients and victims more rights, not fewer.
The FMA leadership has fooled many good and conscientious doctors into believing that Amendment 3 will help victims and their families. Amendment 3 will make it nearly impossible to punish irresponsible and incompetent doctors. This will be an invitation to the worst doctors in the nation to come to Florida where they will be able to escape punishment for their deadly mistakes.
This amendment does nothing to control soaring health care costs, stop waste or eliminate fraud. Moreover, it does nothing to reduce frivolous lawsuits. This is why Florida Supreme Court Justice Fred Lewis called the amendment, “Truly a wolf in sheep’s clothing.”
October 17th, 2004 at 10:24 pm
Numbers are far to impersonal. Each person killed or injured by malpractice and/or errors has a name, a face. My husband went to have a prescription renewed for Prilosec and ended up dead. He hated going to a doctor’s office. Because he smoked a CXR was ordered with other labs that they like to order for gp’s. He had no complaints. A lung lesion that ended up being TB was diagnosed as cancer by a zealous surgeon that was consulted about a needle biopsy. The biopsy was not scheduled because the surgeon was so certain it was cancer. Two days after surgery my husband died from pulmonary emboli. Following surgery, the surgeon said he would never miss the small amount of lung that he removed. He was wrong. He did nothing to prevent the formation of DVT’s, clots that broke loose and migrated, which caused his death. It didn’t matter that, by all evidence based studies, he was at very high risk for clot formation. It didn’t matter that he had clinical symptoms that should have been investigated 19 hours before he died. It didn’t matter that I repeatedly voiced my concerns. It didn’t matter to his last nurse that his heart rate, which was repeatedly spiking, jumped to 210. She said that 195 was 95 and that those numbers didn’t matter anyway. It didn’t matter that I told her that his breathing was much too shallow. She said let him sleep, I’m going to lunch and left without looking at him 2 hours before he died. It didn’t matter that when she did a dressing change that he went from short of breath to gasping for air. It didn’t matter that he said, repeatedly, I can’t breathe. It didn’t matter that I pleaded, to her and a PA assisting in the dressing change, for them to call someone, to do something. He died after 15 minutes of their occasionally telling him to relax and take a deep breathe. He died with my trying to calm him down from what they identified as a panic attack. With an imaginary fishing trip ending in my telling him that the fish spit the hook out and he was free, free to go. Meant only as a metaphor, he lost consciousness. That mattered to them. However, I had to tell them he lost consciousness. As litigation goes, would you call this frivolous? The wall to expose this horror is enormous. I intend to take this wall down and my future will include being as effective a patient advocate as is possible. As I said in the beginning, numbers are too impersonal. Each of those is a story, a sad story.
October 21st, 2004 at 10:03 am
Amendment 3 denies access to the courts for people injured by medical negligence. More people die every year from medical negligence than from car accidents, AIDS or breast cancer in the US. Physicians already have statutory protection and cannot be sued until a physician of the same speciality concludes there is malpractice. Amendment 3 is an attempt to escape accountablity. Instead, the FMA should turn its wrath on the insurance industry.