Malpractice reform-Florida: Round two

April 6, 2007

The Sunshine State's doctors and trial attorneys are at it again. We took a look at their brawl and other simmering controversies.

In September, a ruling by the Florida Supreme Court sounded the bell on the latest round of fighting between the state's doctors and trial attorneys.

The new ruling throws a monkey wrench into that scenario. Although patients' right to a bigger share of malpractice settlements or jury awards still stands, attorneys can ask them to sign away that right as a condition for handling their case. And they can do so, the court said, without prior judicial approval, as long as the agreed upon fee doesn't rise above a certain legally defined ceiling.

The fisticuffs in Florida aren't limited to contingency fee limits. Also stirring controversy are Constitutional Amendments 7 and 8, successfully pushed by the trial lawyers at the same time the doctors got through their contingency fee initiative. Amendment 7 gives patients broader rights to see provider records in cases involving "adverse medical incidents." Amendment 8 targets repeat med-mal offenders. The legal toing and froing has been especially furious over Amendment 7. At issue are several matters of crucial interest to physicians and hospitals, including when the clock on the amendment officially began ticking.

We'll take a closer look at these battles in Florida-as well as at the current status of initiatives passed in two other malpractice-minded states in 2004: Nevada and Wyoming.

Each side claims the other hit first

In the latest brawl between Florida doctors and trial attorneys, the question of who threw the first punch is still open to question.

Doctors claim the attorneys did, and they think they have the evidence to prove it. Shortly after Amendment 3 passed, say doctors, trial attorneys eager to circumvent it asked prospective clients to waive their new constitutional rights.

Debra Henley, deputy executive director of The Florida Justice Association, formerly The Academy of Florida Trial Lawyers, doesn't dispute that some attorneys may have presented the waiver option to clients, but she denies that such negotiations were part of any concerted effort. "We weren't asked to create any waiver forms," she says. "Individual lawyers who knew that some constitutional rights could be legally waived were developing their own procedures for handling the intake of cases."

She has her own version of what started the fracas with doctors. She blames a petition to The Florida Bar spearheaded by attorney Stephen H. Grimes, with the support of the Florida Medical Association. In his petition, signed by 55 other members of the state's bar, Grimes wanted rules established that would, in effect, make it illegal for attorneys to do what some had apparently already been doing, namely asking clients to waive their constitutional rights under Amendment 3 as a condition for taking their case. "If you look at who signed the petition, it's attorneys that work for firms that do insurance defense or who lobby for insurance companies," says Henley.