November 26, 2004
3-Strikes Law Triggers Doctor-Lawyer Battle
TALLAHASSEE, Fla. -- Florida voters this month approved a three- strikes law unlike any other state's -- a measure aimed not at killers and thieves but at doctors who foul up.
The newly approved amendment to the Florida Constitution would automatically revoke the medical license of any doctor hit with three malpractice judgments. The law is backed by doctors' foremost antagonists -- lawyers -- and the ramifications could be huge.
Legal experts say the measure could let loose a flood of malpractice suits. Doctors say it will scare some physicians away from Florida while forcing others to reach quick malpractice settlements to avoid a "strike" against them.
"It has branded the state as probably the most unfriendly state for physicians," said Robert Yelverton, a Tampa doctor.
The three-strikes law is just one salvo in a fierce battle between doctors and trial lawyers that is playing out across the country and in Congress. While several states have taken steps to limit malpractice awards, the fight is especially intense in Florida, where the cost of malpractice insurance higher than in most states.
Doctors this year put their own malpractice measure on the ballot that limits how much of a malpractice award an attorney can take as a fee. There are already such limits, but the amendment, which also passed, further reduces the lawyer's percentage.
Doctors claim that with less chance for a big payday, lawyers will be more selective about which cases they take and will perhaps avoid frivolous ones.
Lance Block, a lawyer who makes his living mostly by representing malpractice victims, said the doctors' campaign to limit attorney fees was motivated purely by enmity.
"I don't think there's any question that the purpose of this amendment is to drive lawyers away from medical-negligence cases," Block said.
Lester Brickman, a professor of legal ethics at the Cardozo School of Law of Yeshiva University in New York, said the lawyers "trumped the doctors" with the three-strikes amendment, because lawyers will rush to sue in hopes doctors will settle to avoid a "strike" on their record.
"You'll see hundreds of these claims," Brickman said. "In the next 10 years virtually every doctor in the state of Florida will have been sued."
The three-strikes law has yet to take effect. It was put on hold by a judge who said the Legislature needs to spell out just how it will work.
The number of doctors who would have their licenses revoked by the three-strikes rule is extremely small, perhaps a dozen or so at the most, experts say. Florida has just under 30,000 active doctors.
Yelverton is among the physicians caught in the middle of the fight.
Like thousands of other Florida doctors, he has never gotten in trouble for making a mistake. He has delivered more than 10,000 babies in his 33-year career -- enough, he notes, to make a "whole little town."
But the 63-year-old increasingly feels it was just not worth it to be a doctor in this state, and he now works in the front office of his practice to develop procedures to reduce the risk of medical mistakes.
One reason he stopped seeing patients and delivering babies was the increase of the cost of his malpractice insurance, and the feeling that at any time he could lose a bundle in a lawsuit, whether it had merit or not.
"The hardest thing about giving up a very successful practice of 33 years is that your patients have come to rely on you for what they consider quality medicine and they have to find someone else," Yelverton said. "And it's one less experienced doctor."
Jay Wolfson, a professor of health law at the University of South Florida College of Public Health, has watched with frustration the back and forth between doctors and lawyers. He said the ultimate result is that patients become mere pawns.
Wolfson said the three-strikes amendment is like many other efforts to "fix" the medical malpractice situation: "It doesn't do a darn thing to protect patients from the very small number of bad doctors."