Monday, August 30, 2004

Florida fight...
From American Medical News: Ballot battle: Two professions square off over attorney fees and quality of care.
Doctors and lawyers in Florida have taken the tort reform fight to a new level -- dueling ballot initiatives.

On Nov. 2, Florida citizens will vote "yes" or "no" on three proposed constitutional amendments that address medical liability issues. Early polling shows that all of them are likely to pass.

The ballot box battle comes a little more than a year after the Florida Legislature passed a $500,000 noneconomic damages cap that doctors say won't prevent premium hikes that are forcing them to leave the state, retire early or forgo high-risk procedures.

To solve the problem, doctors are proposing a constitutional change that would limit the amount that trial lawyers could collect in medical malpractice lawsuits so that injured patients get a bigger chunk of awards.

Trial lawyers are proposing two constitutional amendments. The first -- commonly referred to as the "three-strikes" rule -- calls for stripping doctors of their medical licenses if they have three medical malpractice judgments against them. The second amendment would let patients see medical records and reports connected with "adverse" incidents, including documents generated during peer-review procedures.
The amendment would propose that attorneys would be limited to 30% of any award up to $250,00 and 10 percent of any monies above that. According to the article, the expenses incurred by the attorney would not be subject to the cap. As you can imagine, the trial bar is crying:
The doctors' proposed amendment would reduce accountability for health care negligence and incompetence, said Patti O'Regan, a nurse practitioner and a board of governors member for Floridians for Patient Protection, an advocacy group formed to put the trial lawyers' amendments on the ballot.

If lawyers' share of awards was limited, patients would be forced to pay lawyers by their hourly fees, she said. Patients who don't have enough money to pay those charges wouldn't have access to the courts.

"Only the wealthiest Americans, such as doctors, will be able to find and pay for attorneys to take their cases," O'Regan said. "The safety net of contingency fee arrangements is the only access middle-class and poor Americans will have to the court system."

The physicians' amendment "would act as a total ban on medical malpractice cases because you wouldn't be able to find a lawyer to take a case," said trial lawyer Susser. "It takes so much money to fight these people."
Let's look at the numbers, shall we. Given the average payout in 2002 was $3.9 million in the U.S. and MAG Mutual had an average payout of $4.6 million that would allow the attorney to collect, on top of expenses, $440,000 on the U.S. average and $510,000 on the MAG average. Not exactly chump change.

On to round two:
Under Amendment 8, physicians would lose their licenses if they had three strikes against them, including final court judgments, final administrative agency decisions or binding arbitration. Lawyers say patients would be safer because doctors with repeated judgments against them wouldn't be allowed to treat patients....The proposed amendment would do what the Florida Board of Medicine has been too afraid to do, O'Regan said. "It gets rid of doctors who refuse to learn from their mistakes and improve their service to patients," she said
If you look here you certainly see that the authorities in Florida have been quite busy in laying down the law on a wide variety of medical professionals. If this passes then there will be not only financial pressure to settle, but also to avoid getting a strike.
But doctors counter that the amendment would not accomplish that goal. Instead, they say, it would exacerbate the existing medical liability problem. Fearing that they could lose at trial even though they have a solid defense, doctors would be more likely to settle malpractice or negligence cases instead of taking their chances before juries, physicians say.

The last amendment would serve a severe blow to patient privacy by allowing access to the records of "adverse events":
Under Amendment 7, patients would be able to review medical records associated with adverse medical incidents involving facilities and health professionals. Patients' identities would not be disclosed.

A more open system, trial lawyers argue, would prevent errors from being swept under the rug and would help patients make more educated choices when picking physicians.

"Peer review isn't working," O'Regan said.
This wouldn't help peer review at all. One reason peer review doesn't work is the medical staff/physician part of it will recommend suspension or removal from a medical staff but the hospital administration will get gun shy when, surprise, the subject of the review threatens to file suit.
All of the amendments seem likely to pass:
Limiting attorney fees 74%
Taking away a medical license after
three judgments against a physician 78%
Allowing patients to see records
tied to adverse incidents 75%
If any of the last two pass, it will do far more damage than the first amendment can ever help to mend. So the people of Florida will have their vote, and the physicians may cast theirs, with their feet, and leave Florida.
Cross-posted at Galen's Log
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