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June 29, 2005
Doctor vs. Lawyer
TALLAHASSEE -- The deluge of campaign ads made it seem simple enough.
If voters amended the Florida Constitution, victims would get more money in medical-malpractice lawsuits and attorneys would get less.
Last year Florida voters overwhelmingly approved a constitutional amendment — backed by doctors — that limits how much trial lawyers can collect from medical malpractice suits.
Some have circumvented the limits by having their clients waive the right granted in the amendment, allowing the attorneys to collect higher fees if they win the case.
The amendment's supporters plan to file a proposal today with the state Supreme Court that would force trial lawyers to stick to the limits in the amendment.
But nearly eight months after voters overwhelmingly approved the change, doctors and trial lawyers -- arch-enemies in a long-running feud about malpractice lawsuits -- are still wrangling about what it will mean.
Supporters of the doctor-fueled amendment are expected to file a proposal with the Florida Supreme Court today that would seek to force trial lawyers to abide by strict limits on the amounts of fees they can collect when representing malpractice victims.
The proposal comes after some lawyers have started bypassing limits that doctors envisioned when the amendment passed last year. Lawyers, who argue that the amendment was simply a backdoor effort to stifle malpractice lawsuits, have gotten around the limits by asking clients to sign waivers that allow higher fees.
Lisette Mariner, a spokeswoman for the Florida Medical Association, which helped spearhead the amendment, said such waivers only benefit trial lawyers, not clients.
"To permit such a practice would not only put the lawyer in an unethical position but fly in the face of the constitutional mandate overwhelmingly approved by the voters of Florida," the proposal going to the Supreme Court states.
But trial lawyers have contended for months that strict fee limits could prevent them from taking many costly malpractice cases -- making it difficult for victims to get representation. Phil Chanfrau, a Daytona Beach trial lawyer who has handled malpractice cases, said clients also are able to waive legal rights in other types of cases and called the Supreme Court proposal "hard to believe."
Neal Roth, a former president of the Academy of Florida Trial Lawyers, said his Miami firm has clients who have agreed to waivers in malpractice cases. He said the clients are fully aware of what they are doing.
"I am absolutely confident that that's the case," said Roth, who has been a prominent player in malpractice debates.
The dispute stems from a nasty 2003 legislative fight in which doctors and insurance companies lobbied for a $250,000 cap on pain-and-suffering damages in malpractice lawsuits. They argued that big-money lawsuits were driving up malpractice insurance rates, forcing doctors to leave the state or curb their practices.
But with trial lawyers arguing that such a limit would hurt malpractice victims, lawmakers refused to go along with the $250,000 cap. Doctors then began the 2004 constitutional amendment drive to limit attorneys' contingency fees, which are paid if lawyers win or settle cases.
The amendment called for victims to receive 70 percent of the first $250,000 in damages awarded in malpractice cases and 90 percent of damages greater than $250,000. That translated into lawyers receiving a maximum of 30 percent of the first $250,000 in damages and 10 percent of higher amounts -- substantially lower than the fees they have been allowed to collect in the past.
In the proposal expected to be filed today, backers of the amendment will ask the Supreme Court to clamp the 30 percent limit on attorneys' fees for the first $250,000 in damages and 10 percent for damages above that.
"Essentially, the medical association feels like the amendment is clear and that it mandates the reduction in the amount of contingency fees," said Stephen Grimes, a former Supreme Court justice who is representing amendment supporters on the issue.
But Roth said the amendment's effects are not so clear and that it would be premature for the Supreme Court to decide the fee issue. Roth said the amendment has also prompted other legal questions, which likely will be fought out in lower courts.
As an example, Roth said hospitals and programs such as Medicaid and Medicare sometimes are entitled to receive part of the money awarded in malpractice cases as reimbursement for care. He said it is unclear how they would be reimbursed if the amendment mandates that 70 percent or 90 percent of the damages go to victims.
"There are many unanswered questions right now as to what happens," Roth said.
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