The proposed amendment seeks to limit what trial lawyers can take home when they win a medical malpractice case... Sunshine, Ballots and Lawyers

Florida again may be the state to watch in the upcoming 2004 elections, although perhaps not for the same reasons as it was back in November of 2000. Assuming all goes right with Florida’s new voting systems, there should be fewer hanging chads and butterfly ballots. But even so, voters nationwide should still turn their eyes south to watch the Sunshine State as it takes the electoral lead on legal reform.

The political action committee of the Florida Medical Association (FMA), Citizens for a Fair Share, announced this week that it now has the number of verified petition signatures necessary to seek Florida Supreme Court review of a proposed state constitutional change. The proposed amendment seeks to limit what trial lawyers can take home when they win a medical malpractice case — a necessity in a state where malpractice insurance rates have skyrocketed out of control.

Current Florida Supreme Court rules ban only "exorbitant" attorney contingency fees, and changing those rules — and the size of lawyers’ fees that go with them — must be accomplished by constitutional amendment, not by the legislature, because the rules are set by the state Supreme Court. Thus, if Florida is going to get some much needed tort relief, and if "panhandled" doctors (quite literally) are going to get some much needed premium relief, then Floridians better vote with their pocketbooks in approving the FMA’s ballot initiative.

Reports indicate that trial lawyers siphon off a full 30 to 40 percent of a plaintiff’s medical liability award as their fee, usually receiving 40 percent of the first million dollars their client is awarded, 20 percent of the second million and 20 percent of anything above that. According to a 2002 report of Jury Verdict Research, Inc., more than half of all medical malpractice awards today top a million dollars, and the average award has increased to a whopping $3.5 million. Given that average award, the attorney would take home more than one million dollars even if his contingency fee was on the low end of 30 percent. That’s a lot in attorneys’ fees.

Under the proposed amendment, lawyers will take far less because Florida patients will receive 70 percent of the first $250,000 awarded, and 90 percent of anything more, less the legal costs of bringing the suit. In other words, the patient’s legal representative will have to settle for 30 percent of the first $250,000 and only 10 percent of anything else — a marked improvement from current practice.

With 50,000 signatures in hand, the proposal now goes to the Florida Supreme Court for review to be sure that the amendment is clear and refers to a single subject. After approval, the FMA will need to collect about 450,000 more signatures in order to place it on the November 2004 ballot.

The FMA’s proposal will almost certainly not be the only initiative placed on Florida’s 2004 ballot in the ongoing war between legal reformers and the trial bar. Apparently in retaliation for the FMA proposal, the political action committee of the Academy of Florida Trial Lawyers, Floridians for Patient Protection, has already announced three of its own proposed questions for voters in the Sunshine State, all while maintaining that any cap on fees would make it virtually impossible to try medical malpractice cases. The first proposal seeks to limit what doctors can charge in some cases, forcing them to charge all patients the lowest fee they charge to any patient for a procedure. Another proposal seeks to take away a physician’s license if he is found guilty three times of medical malpractice. And the last proposal would open up doctors’ records by requiring them to make public all medical incidents resulting in injury or death.

While those proposals may sound appealing at first blush, Florida voters should keep in mind their backers because each of the lawyers’ proposals will, no doubt, further line the pockets of their brethren as they are designed to be the statutory seeds of lawsuits to come.

Given the national importance of these issues, voters across the country may experience a little déjà vu in the 2004 elections. The issue may be different, but, just like four years ago, all eyes are on Florida and the trial lawyers working overtime to "win" the election. Let’s hope they lose the final tally this time, too, as our medical and economic health depends on it.

February 12, 2004
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