My earlier post today referred to these amendments. For those who do not regularly read the comments, I feel these are too important to leave just there. I asked Remy to comment, and he did so in a very thorough manner:

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.

Related posts:

1. The Florida malpractice votes
2. More on Florida’s malpractice votes
3. Malpractice reform – Florida voters support physicians and lawyers
4. Florida malpractice cap passes
5. Health care reform should address student debt

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