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The American Bar Association provided fresh ammunition to opponents of Amendment Three last week with the release of a task force report on lawyers’ contingency fees in medical malpractice litigation. The ABA study concludes that the amendment — which would impose strict new caps on plaintiffs lawyers’ fees in Florida — will “sacrifice justice at the altar of expedience” by “compromising access to justice by medical malpractice victims.” That is the chief argument made by plaintiffs lawyers opposed to the amendment. The hotly debated measure on next month’s ballot, sponsored by Citizens for a Fair Share, a group created by the Florida Medical Association, would limit plaintiffs lawyers’ fees in Florida to 30 percent of the first $250,000 in damages, and 10 percent of all damages in excess of that, exclusive of “reasonable and customary costs,” in any medical negligence lawsuit. Under current rules, plaintiffs lawyer fees in Florida are limited to 40 percent of any recovery up to $1 million, plus 30 percent of any portion between $1 million and $2 million, plus 20 percent of any portion exceeding $2 million. Plaintiffs lawyers argue that reduced fees will make it economically impossible for them to take most medical malpractice cases, since they must assume the risk of funding the costly litigation. The ABA panel agreed. It found that “a medical malpractice claim must amount to $100-200,000 simply to break even. Anything less means that, at typical rates of return, the case will be refused. The economic barriers — the investment of time and money to establish a valid claim — are simply too high.” The report also warns that because the caps would reduce the number of victims who could afford a lawyer, they would then “reduce optimal compensation for all victims and, in effect, reduce the deterrent effect on medical negligence.” FMA general counsel John Knight declined to comment on the report, saying he has not seen it. Liz Hirst, a spokeswoman for Citizens for a Fair Share, denounced the report as “a self-serving document produced primarily by people who benefit from high contingency fees.” She said most of the participants were personal injury attorneys, “not what we would consider an unbiased group.” But task force chair Steven Lesser, a shareholder at Becker & Poliakoff in Fort Lauderdale, Fla., defended the panel’s even-handedness. He said that was assured by the panelists’ broad range of backgrounds. In addition to Lesser — who practices construction law, and whose firm’s medical negligence practice represents defendants — the panel includes Miami personal injury attorney Edward Blumberg, of Deutsch & Blumberg, and other trial lawyers from around the nation. Three of the other trial lawyers are from plaintiff-oriented firms; one is from a firm that represents defendants and plaintiffs. But other panelists are from backgrounds that are defendant-oriented. One is a senior counsel for the McDonald’s Corp.; two others are senior counsel at insurance giants AIG and Chubb & Son. The panel also includes three law professors. Lesser said he was “absolutely shocked” that “such a diverse” panel reached consensus. He said that except for an abstention by the Chubb & Son lawyer, the panel unanimously approved the report. Lesser, as chair, had no vote. The task force was created by the ABA’s tort trial and insurance practice section in fall 2003. It met five times at various locations around the country from October 2003 through June 2004, hearing presentations from and asking questions of attorneys, academics, legislators and activists. The report castigates both sides and the media for their roles in the broader public debate over medical malpractice, which the panel said has been clouded by “misinformation and misunderstanding.” The report states that the ABA instructed the panel to rely on “verifiable fact as opposed to anecdote and exaggeration.” Lesser described the ABA task force as an ongoing project that would proceed to study the role of contingency fees in other areas of litigation like class actions and employment discrimination claims. He said the panel interrupted its original schedule to publish its findings on contingency fees in medical malpractice because the debate on that topic had “grown so heated” in the contest over Amendment Three. The study debunks several key contentions about medical malpractice litigation offered by medical professionals. It found that, despite claims by groups like the FMA that there is an “explosion” of medical malpractice litigation, “there are relatively few medical malpractice lawsuits, whether compared to other types of litigation or compared to potential medical malpractice claims.” While doctors claim that even meritorious cases often involve unreasonable attorney fees, the study concluded that “even where liability is ‘certain’ … the value the lawyer brings to the case, which justifies a contingent fee, is the ability … to improve the recovery the client receives.” The panel also found that there is “no data” that supports the doctors’ contention that lawyer contingency fees are a significant factor in the rise of medical liability premiums. The panel agreed with the doctors that limiting contingency fees would have a “tempering effect on such premiums.” But that would be so, the panel wrote, because “victims will not find lawyers to assist them in their claims.” To counter one of the panel’s conclusions, the FMA’s Hirst cited a November 2002 study by the accounting and consulting firm Rachlin Cohen & Holtz. That study found that most South Florida physicians have been sued for medical malpractice at least once. The ABA report states that FMA general counsel Knight declined a task force invitation to give a presentation to the group and failed to respond to a letter of inquiry. “I didn’t see the point,” Knight told the Daily Business Review. “It was going to be a bunch of trial lawyers and me.” He said he was unaware of any letter from the task force. At the ABA panel’s June hearing in Boca Raton, Fla., those who did make presentations were state Sen. Walter Campbell, a partner at the Fort Lauderdale, personal injury firm Krupnick Campbell Malone Buser Slama Hancock Liberman & McKee; consultant Arthur Simon, formerly a lobbyist and senior vice president at Associated Industries of Florida; and state Rep. Jeffrey Kottkamp, R-Cape Coral, a member at the Fort Myers, Fla., insurance defense firm Henderson Franklin Starnes & Holt.

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