Pink Sunrise

Greg Snell Writes on Physician Issues for Volusia/Flagler Business Report

The below piece by Greg Snell was published in theĀ Volusia Flagler Business Report

Amendment proposal No. 3 on the November 2 ballot, sponsored by a physicians' group, would limit lawyers' compensation in a medical liability case to 30 percent of the first $250,000 of an award and 10 percent of anything above.

By pushing this amendment, doctors are not just trying to insure injured patients get more money. They are also trying to make fees so small as to discourage lawyers from taking cases.

Currently lawyers can get as much as 40% of the first $1 million of an award, 30% of the second $1 million and 20 percent of anything above that.

The difference is big. Take a $2 million award: A plaintiff could get $1.3 million and his lawyer $700,000. The amendment would make the split $1.75 million for the plaintiff and $ 250,000 for the lawyer.

Bringing a malpractice case is usually complicated, time consuming and expensive. It's not unusual for a lawyer to spend hundreds of thousands of dollars in labor and expenses in these cases. Most that go to trial are lost. A loss could mean financial ruin for the lawyer.

A $250,000 fee might seem like a lot, but after covering the overhead and paying taxes, the lawyer may not see much. The best lawyers know the risk is not worth taking unless the potential reward is great.

Also, there would be tremendous pressure to settle at $250,000 or less because the lawyer would get only 10% of any recovery above that amount. This would not result in the best representation for patients.

A lawyers' group sponsored two other proposals on the ballot in retaliation against doctors.

Amendment No. 7 would allow patients access to information on "adverse incidents, including malpractice, by doctors, other health care providers and health care facilities. No. 8 would bar from practicing in Florida a doctor who has committed three or more acts of malpractice from practice in Florida.

All three of these amendments are aimed more at hurting the opposition than solving any problem.

The Florida Constitution is now five times the size of the U.S. Constitution. The state
constitution has been amended 95 times in less than 35 years, compared with the U.S.
Constitution, which has been amended just 27 times in 215 years. Constitutions are for
fundamental matters, not legislation, and should not be cluttered because voter emotion can be exploited.

Regrettably, there are bad doctors and bad lawyers. Victims of medical negligence need to be compensated. Rather than attacking one another, doctors and lawyers need to concentrate on solving the problem of bad medicine and frivolous claims.

Doctors cannot be expected to provide services under siege. They should not be exempted from our system of justice, but they should be given more protection than the average automobile driver, or property owner.

Currently, a judge cannot throw out a case even if he or she does not believe that it has been proven. If there is any evidence in the case from which a jury might reasonably conclude that there was negligence, the judge has to let the case go to the jury.

We could allow judges to throw out a case in which they had determined that medical negligence was unlikely. That would go a long way toward solving the problem of frivolous claims. No longer would cases get to juries with just the skimpiest of evidence.

Lawyers, who normally take medical liability cases on contingency, would not want to waste their time perusing cases unlikely to get by the judge. Many fewer frivolous, or marginally meritorious, claims would be perused.

The problem with frivolous claims is the system that allows abuses, not the participants who merely take advantage of it. If we fixed the problem, doctors and lawyers could stop attacking one another and concentrate on practicing their professions.

Vote no on these amendments and help bring sense tot he constitutional revision proves and the doctor-lawyer feuding.