In tug of war with doctors and lawyers, we're a rope (St. Petersburg Times, May 20, 2004) By Howard Troxler
There's a good chance this year that you will be asked to help Florida's lawyers do damage to Florida's doctors, and maybe vice versa.
Both of those professions are trying to put constitutional amendments on this November's ballot. You might have been approached for your signature on a petition.
The doctors, for their part, started this private little war with a group called "Citizens for a Fair Share."
The group has an amendment to limit lawyers' fees in malpractice cases. The amendment would cap lawyer fees at 30 percent of the first $250,000 in damages, and no more than 10 percent of everything after that.
The lawyers are fighting back under the label of "Floridians for Patient Protection." The way the lawyers want to "protect" patients is with three amendments:
A "right to know" amendment so patients can find out about past malpractice or adverse incidents involving their doctors.
An amendment forcing doctors to charge the same fee to all patients for the same kind of care.
A "three strikes" amendment yanking the license of any doctor who has committed three acts of malpractice.
Both sides are trying to take advantage of common stereotypes - greedy lawyers, bad doctors.
But please, let's act like thinking citizens here, instead of knee-jerkers.
Let's start with the "three strikes" rule.
As a society, we like to sue doctors. We blame them for anything that goes wrong. A neurosurgeon in this state, to pick one of the tougher specialties, has just about a 100 percent chance of getting sued.
Will this, then, be our policy toward neurosurgeons? When (and not if) they have been sued three times by three unhappy patients who prevail in tough, complicated, close-call cases resulting in, say, the paralysis of a finger, we'll yank their license? But that same automatic penalty doesn't cover an incompetent surgeon who has killed off only two patients?
"No, of course not," a reasonable citizen has to answer. "What I want is for the worst doctors to lose their license."
Sure, everybody does. But a blunt-instrument, "three strikes" amendment in the Florida Constitution is a stupid way to try it.
As for this doctor-fee business, the pricing of health care is ridiculously complicated. It is a terrible idea to set prices via constitutional amendment. Besides, if we're going to set doctor bills or lawyer fees in the Constitution, then why stop there? Let's go beat up on the plumbers, too. Let's regulate the ridiculous price of movie tickets.
The least worrisome of the three anti-doctor amendments deals with past history, but even here, there ought to be some fair putting-in-context of the incidents reported.
Now, for the lawyers.
The other day I had a long and informative conversation with a malpractice lawyer in Tampa named Betsey Herd. She is with the firm of Wagner, Vaughan & McLaughlin.
Herd took me through the steps involved in a malpractice case. To sum it up, a case can take years, and hundreds of hours of detailed preparation. And if the case goes to trial and the plaintiff loses, all the money spent on the case is lost - it is an awful risk.
I know that 30 percent of the first $250,000 of any damages (or $75,000 as a legal fee) is a lot of money.
But $75,000 might still not be enough to cover a multiyear, many-hundred-hour investment of a professional's time in a complicated case (let alone paying for the paralegals, the support staff, the electric bill, the rent).
"You're asking us to risk more than we could ever be compensated," Herd concluded. "That's crazy." The goal of the lawyer-fee amendment is simple - to make it less likely that lawyers will accept deserving but unrewarding cases.
Lastly, it should be pointed out that lawyer fees in Florida already are capped. They just aren't capped as much as the doctors want. In all these amendments, the citizens are being used as a club by two interest groups trying to hurt each other. I support the petition process, so if enough citizens sign, then sure, let's hold a vote. It will be difficult to overcome all these stereotypes in a campaign, but it's possible. Barely.
