Florida Doctors, Lawyers At Odds Over Effects of Malpractice Amendments

After years of fighting over medical malpractice, doctors and lawyers who represent victims aren’t going to declare peace just because voters approved a few new amendments in the Florida Constitution.

Both groups of professionals are assessing the impact of three constitutional amendments that passed Tuesday, and maneuvering to either blunt their impact or maximize it.

Amendment 3, pushed by medical doctors, limits fees of plaintiffs’ lawyers by guaranteeing clients a greater share of damages in medical malpractice cases. Lawyers spent nearly $25 million trying to defeat it, but more than 60 percent of voters agreed with it and it easily passed.

Alexander Clem, the president of the Florida Academy of Trial Lawyers, said Thursday that attorneys would continue to fight against the idea, which he calls “price fixing.”

He said the trial bar might fight the issue in court, arguing it could infringe on the right to freely contract for services.

“Are we going to limit what a plumber can make, limit what a CEO can make?” Clem asked. “Let’s just go to a constitution where … the free market doesn’t matter.”

Clem also said that lawyers might in the future hit back at doctors’ incomes with an amendment that requires doctors to charge all their patients the same as they charge Medicaid patients.

While happy over the passage of Amendment 3, doctors were also disappointed Tuesday by the passage of lawyer-backed Amendments 7 and 8, both of which passed by large margins.

Those amendments require doctors and hospitals to make reports of their medical mistakes public and take away the licenses of doctors who commit three incidents of medical malpractice.

The Florida Hospital Association quietly filed lawsuits before the amendments even passed, asking judges to block them from going into effect until the Legislature clarifies what they mean, including spelling out what records must be released, and how.

Sandy Mortham, the head of the Florida Medical Association, said doctors have always believed that the measures would need to be interpreted by lawmakers, and that the FMA would be working to persuade them of an interpretation that limits the amendments’ negative impact on doctors.

On the lawyers’ side, Clem said some attorneys think some clients may waive their right to the amount of winnings the amendment guarantees, which is 70 percent of the first $250,000 in damages and 90 percent over that. If they can’t get a lawyer to take their case because of the requirement, they could simply agree to forego their right to the higher amount, he said.

Mortham said that would basically violate the amendment.
“I think it should be almost embarrassing for them to even suggest that clients waive their constitutional rights,” she said. “That’s just absurd.”