There are eight proposed amendments on the ballot for the Florida Constitution. I wanted to post links to the ones I’m wavering on and get your input.
1)The Medical Liability Claimant’s Compensation Amendment This one caps lawyer’s fees in medical malpractice suits. Proponents say this means more of the money will go to the person who deserves it, the patients. Opponents say lawyers will be less likely to take complicated cases. As I understand it, this does not apply to cases that are settled and never go to trial.
Patients Right to Know about Adverse Medial Incidents This one allows patients to review the records of hospitals and doctors’ adverse medical incidents. I don’t see the harm in it, but again, there’s the law of unintended consequences. Who will maintain these records? What is the punishment (if any) if something is omitted from the records?
Public Protection from Repeated Medical Malpractice. This one sounds good on the surface: Doctors with three or more incidents of medical malpractice would lose their license to practice in Florida. But the flip side is, doctors in high-risk professions, such as neurosurgery or high-risk OB/GYN, where malpractice is a fact of life, may elect not to practice in Florida for fear of losing their license. Then where will the 38-year-old woman carrying twins go for medical care during her pregnancy?
Glad you started this, I just noticed an ad on one of these this morning and was wondering what these laws are about. The last one makes me more than a bit nervous: while I would like to see bad doctors weeded out and kept from hurting people, I would guess that medical malpractice is relatively subjective and could vary quite a bit by type of practice. This could cause the cost of obstetrics, to pick one, to skyrocket. Also I am generally suspicious of “three strikes and you’re out laws”. I’d generally prefer for each case to be reviewed on its own merits.
Here’s a link to all the proposed amendments. For the purpose of this thread, I would like to limit discussion to the three amendments I’ve listed above.
First off, I feel like all three of these issues are more properly dealt with via the Legislature. Hell, #2 mentions that the Legislature specifically denied people this information when passing a patient’s bill of rights. If you don’t like the laws they pass, don’t vote for them, that’s the right way to fix this.
More specifically on #1, I don’t like the $250K cutoff point and I don’t like that this is specifically for medical liability suits. Lawyers can get 30% of the amount below $250K and 10% above that amount. In 10-20 years, you will have to pass another amendment to change the dollar amount to account for inflation. Personally, I think the right way is to segregate compensatory damages from punitive in all suits, rather than segregate it by dollar amount. That way, lawyers will have incentive to take cases with big compensatory damages, rather than cases with deep pocketed defendants. Big compensatory damages means that the plaintiff was seriously wronged/injured, those suits deserve attention.
What defines “medical liability” anyway, could a lawyer claim his suit is a different kind, thus free of this restriction? Who decides which claims are which?
#3 seems like a disaster waiting to happen. I don’t personally know what the typical number of malpractice suits a doctor might have, without knowing that, I would be very worried that high risk professions will just move to other, more friendly, states leaving Florida in the lurch.
The third amendment is a wolf in sheep clothing. My mother has personal experience in the lawsuit-ridden world of birthing and eventually was driven out of the field simply because she went into every birth freaking out about everything that could go wrong over which she had no control but could be taken to court for. In the state of Kentucky, the hospital and doctor can be sued up to 18 years after birth for any complications that can in the slightest be traced back to birthing for large sums of money.
What happens? You get lawsuit-happy couples suing everyone they can to find out who has the deepest pockets, all the way down to the nurse(s) eighteen years after the birth occured. Its tough to work in an environment already crazy with fear and pressure over extreme lawsuits. Why would adding the loss of your license be considered a good thing?
Hmmm, the description of the amendment did specify 30%/10% cap after reasonable and customary costs: however, this still means that, even if all their costs are defrayed, as a corporation the attorney’s groups will still have to win many times more a percentage of cases than they do now to make the same profit. So it will have an obvious impact on the number of cases accepted on a contingency basis. Is this a good thing? In the case of some malpractise areas, I think it is. Perhaps it would be better to limit their take of non-tangible damages, like another poster said. But on average I think this will help more than it hurts. I think I’ll vote for it.
I’m not sure if even the full text of the law is clear. I would vote against it until it could be implemented more clearly. My beef is that it is possible that the “adverse incidents” might not be broken down into cases that were shown to be culpable negligence, versus those that just, as per the text, any action which “caused or could have caused injury to or death of a patient.” The public has a right to know the first, but should not be unable to differentiate between that and the latter.
I’m not sure exactly how easy it is to get on the record as having malpractised. If its something everyone will do eventually, there’s no way I’d vote for this. On the other hand, if it will weed out the ones who drive up insurance and death rates, then it could have a positive impact. However, absent this information, I’d vote against this since it would definitely impact the availability of health care in FL.
#1 is a bad idea. As a defense-oriented lawyer (and until somewhat recently primarily a products liability defense lawyer, though no personal injury, thank goodness), I can tell you that the quality of advocacy amongst plaintiffs’ lawyers is generally low (although there are outstanding exceptions). Capping medmal fees will not deter the ambulance chasers one whit – they’re looking to file nusiance suits and get out quick with a settlement. The people it will hurt are the good plaintiffs’ lawyers who are competent, take their clients’ cases seriously, and bring cases only when there’s a compelling reason to do so. These people depend on big fees to feed their family, because they’re taking a big financial risk with every new case.
What will happen is that if fees become hard to come by, these practicioners will either move out of state or switch sides, making it even more difficult for people with medical injuries to gain adequate representation – and giving the sharks even more cases to bring. When the medical industry is no longer under the threat of effective malpractice litigation, medicine will become less safe. Perhaps doctors individually won’t act with less care. But HMO’s, hospitals, device manufacturers, etc. – any corporation that makes treatment decisions – will cut back on training, support, personnel, quality control, and everything that impacts the bottom line. That’s equals more victims of malpractice, leading to a vicious circle.
Then, Cliffy, do you not believe in tort reform? How about these class-action suits where the plaintiffs get a coupon for a free video rental and the lawyers get enough money to buy a yacht and a second airplane? What percentage do you feel is fair? Surely 10-15% is enough?
One problem with capping attorneys’ fees is that it’s only part of the equation.
The theoretical reason for capping attorneys’ fees is that medical malpractice premiums will correspondingly decrease (and that those savings will be passed along to consumers). What guarantee do we have? Maybe insurers will keep rates where they are and just reap a windfall when this amendment reduces their insured losses.
In my view, if you’re going to cap attorneys’ fees or damages, you must also mandate reduced premiums from insurers. And while we’re at it, reduced fees from doctors. If you’re going to put an artificial lid on profits, then cap everybody’s profits. Otherwise there’s no guarantee the consumer ever sees a benefit, and we may just have a program for making doctors and/or insurance companies richer.
Plaintiffs lawyers don’t make that kind of scratch on anywhere near a regular basis. Every once in a while one will hit the jackpot with a great case, but it doesn’t happen once to most plaintiffs’ lawyers, and it happens more than once to very, very few (and usually only those who really deserve it).
Anyway, to the extent events as you describe happen, the only reason any settlement at all occurs is because there was a lawyer willing to take the risk for that reward. Remove the possibility of the reward, and the rights will never get vindicated. Anyway, class actions aren’t meant to recompense the plaintiffs so much as provide a deterrent to large businesses to behave negligently/unlawfully/unethically. Therefore, it doesn’t really matter who gets the money so long as there are real consequences to the tortfeasor or potential tortfeasor. (Whereas crippling the class action system will lead to mre dangerous products, because comapnies won’t give a crap.)
I’m not a big fan of the class action system because I don’t think it does a great job of vindicating victims’ rights. But how will making class actions economically unfeasible solve that problem? It won’t.
Why “surely”? Bringing a case is a lot of work, it takes a lot of time, and a substantial majority of them don’t even break even. Unlike a theatrical agent, a plaintiffs’ lawyer can’t work on more than a small handful of cases at the same time because of the substantial time and effort than needs to be expended. If a plaintiffs’ lawyer doesn’t make a substantial profit on the cases he does win, he loses his house. Unless and until the government is prepared to provide quality counsel to civil plaintiffs (read: never), then the market is the only thing we’ve got going for us.