- February 16, 2012
'Pox' On Both Houses
The battle over medical malpractice reform gets thick as proponents and opponents file briefs over a proposed state constitutional amendment that would limit lawyer contingency fees.
By David R. Corder
A bitter political fight just spilled into the Florida Supreme Court. It's so virulent, Associated Industries of Florida, the state's powerful business lobby, calls the rancor between the Florida Medical Association and the Academy of Florida Trial Lawyers "a pox on both of your houses."
The battle of words between these professional trade groups erupted into an all-out legal fray March 31 as Citizens for a Fair Share Inc., an FMA political action committee, filed a legal brief with the court in support of the proposed Medical Liability Claimant's Compensation Amendment.
This citizens' ballot initiative amendment proposes a limit on the amount of contingency fees a Florida lawyer may charge for a medical malpractice claim. If enacted, the proposed constitutional amendment would entitle an injured person to 70% of the first $250,000 in awarded damages and 90% of all damages that exceed $250,000 - exclusive of reasonable costs.
Proponents say the proposed amendment would make it less attractive for lawyers to file frivolous medical malpractice claims. They object to the 30% to 40% contingency fees Florida personal injury lawyers now earn. They say the action is necessary because of the Legislature's inability to enact meaningful reforms to stop the spiraling costs of malpractice insurance.
"There are several Florida Supreme Court opinions which suggest that any statute enacted by the Legislature that seeks to regulate attorney contingency fees that is in conflict with the rule of procedure adopted by the Supreme Court would violate the separations of powers doctrine in the Florida Constitution," the physicians' PAC states on its Internet web site (www.citizensforafairshare.org). "Therefore, the only way to adopt a contingency fee schedule different from the one adopted by the Supreme Court is through a constitutional amendment."
However, opponents say the proposed amendment would do nothing more than put artificial barriers between the poor and the courts.
"Those catastrophically injured are less likely to be represented," says Bradenton medical malpractice lawyer Richard M. Shapiro, president of the trial lawyers group. "Sadly, I've tried to convince the FMA leadership this does not in any way remedy their ailments.
"The reason is twofold," he adds. "First, they're living with unaffordable and unavailable malpractice insurance. They're living under the iron fist of managed care and the inability to receive reimbursement for their work. The rhetorical questions is: 'What good is it to them even if they're successful?"
Shapiro says he suggested the trial lawyers and the physicians work toward a compromise. The two groups met once but came to an impasse about a year ago. "Our members are getting mad," he says. "They've wanted a truce for a long time."
Because of the impasse the trial lawyers retaliated. They've proposed three citizens' ballot initiative amendments through Floridians for Patient Protection, the trial lawyers' PAC (www.floridiansforpatientprotection.org).
One of the trial lawyers' amendments would require public disclosure of all adverse medical incident reports. Another would require any physician to charge the same fees for all patients. The third would prohibit any physician from practicing medicine who commits three or more instances of medical malpractice.
Those amendments, too, drew the ire of the business lobby, a critic of the citizen initiative ballot amendment process and proponent of current legislative efforts to reform it.
"We believe that if both the FMA amendment and the trial lawyer amendments were to pass, the result would be hurtful to both professions, and it would be a 'pox on both of your houses,' " Jon L. Shebel, Associated Industries president and chief executive officer, wrote in a letter sent earlier this year to more than 40,000 Florida physicians. "The business community and the insurance industry are unquestionably opposed to both sets of amendments, and we will not support either."
This is an expensive battle, too. The physicians' PAC raised about $1.2 million between July and December last year, according to public disclosure reports. The trial lawyers' PAC raised almost $4.3 million over a 12-month period ended Dec. 31.
So far, only the physicians' PAC has gathered enough registered-voter signatures to bring its amendment before the Supreme Court. While the physicians rely mostly on volunteer signature gatherers, the trial lawyers' PAC spent more than $300,000 just through the end of 2003 on professional signature-gathering companies. One such company - National Voter Outreach Inc., Carson City, Nev. - earned $210,089 of the total.
On June 8, the two sides will argue over the proposed physicians' amendment. Holland & Knight LLP attorneys Stephen Grimes and Susan Kelsey filed the brief on behalf of the physicians' PAC.
In the eight-page brief, Grimes and Kelsey argue the proposed amendment meets the two-fold test required for placement on the November ballot. It meets the single-subject requirement. It also clearly summarizes the amendment's intent.
"The effect of the amendment is to prevent the dilution of the claimant's recovery by excessive charges for attorney's fees," they write. "All of the details of the amendment are succinctly stated and relate to only one subject."
So far, the physicians' brief has elicited opposing briefs from the trial lawyers' PAC and the Trial Lawyers Section of the Florida Bar.
The brief submitted by Fernandina Beach attorney Arthur I. Jacobs on behalf of the Trial Lawyers Section attacks the proposed physicians' amendment on two accounts.
For one, Jacobs argues the proposed amendment fails the single-subject test. He claims it would affect multiple functions of the government and the state Constitution.
"The most drastic impact would be felt by the judiciary who, due to the self-executing clause of the proposed amendment, would be forced to immediately interpret and essentially make law while deciding the meaning of the various ambiguous and vague terms of this initiative," he writes.
For another, Jacobs argues the proposed amendment contains misleading information.
"In the present case, the ballot summary uses the term 'injured claimant' while only using the term 'claimant' in the text of the proposed amendment," he writes. "The summary of the initiative also alludes to a 'contingency fee contract with any attorney' yet never mentions the word attorney when describing a 'claim involving a contingency fee.' Whether these discrepancies were intentional to mislead voters to believe the amendment would apply to lawyers is unknown."
In their brief, Grimes and Kelsey answer that speculation.
"While a ballot title and summary must state in clear and unambiguous language the chief purpose of the measure, they need not explain every detail, ramification or effect of the proposed amendment," they argue.