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Passage of the three state constitutional amendments related to medical malpractice was the easy part. Now the real fight begins. Leaders of the plaintiff bar say they’re planning for legal challenges to doctor-supported Amendment 3, which caps trial lawyers’ contingency fees in medical malpractice cases, is under way. But medical professionals have already fired their first salvos, with lawsuits in state circuit courts that will block implementation of lawyer-backed Amendments 7 and 8 until the legislature writes laws that will flesh out those measures. Doctors were jubilant at the passage of Amendment 3, which would cap contingency fees for plaintiff attorneys in medical liability lawsuits at 30 percent of the first $250,000 in damages, and 10 percent of all damages in excess of $250,000. The amendment was spearheaded by the Florida Medical Association, which touted it as a cure for an alleged rash of frivolous medical negligence lawsuits brought by patients and lawyers in search of jackpot judgments. The amendment passed with the support of 63.5 percent of voters. “It’s a great victory for health care in the state of Florida,” crowed Hollywood vascular surgeon Arthur Palamara, a leader of the Broward County Medical Association. “But we’re under no illusion it will be immediate. We expect the trial lawyers to pursue it in court.” Indeed they will, according to Miami plaintiff attorney Stuart Z. Grossman. “Even as we speak, strategy is being worked out between the Academy of Florida Trial Lawyers and certain law firms,” he said in an interview. “We’re going to challenge the amendment in the courts and in the Legislature.” According to Grossman, although amendments proposed through the citizen initiative process pass muster with the state Supreme Court before reaching the ballot, courts are later free to rule on implementation if the amendments are found to conflict with other state or federal constitutional rights, or if the details of implementation are unclear. “The Supreme Court only ruled on whether the language of the proposal was acceptable,” Grossman said. “Now that it’s passed, it’s open game.” Grossman declined to name the firms with which the AFTL is consulting or to provide details of their discussions. But he gave two examples of possible grounds for challenging Amendment 3. One is that limits on contingency fees violate the state constitution’s prohibition on laws impairing the right to contract. For another, he said that the amendment is vague as to the extent of its reach. “Does it cover suits brought against hospitals?” he said. “Does it only apply to suits brought against doctors? We feel that needs to be spelled out.” Grossman predicted that however the measure was implemented, doctors would find that they’d shot themselves in the foot. “The number of lawsuits will go up,” he said, because smaller fees will drive off quality lawyers and “cut-rate attorneys” will “make up the difference by filing in volume.” DOCTORS ON THE OFFENSIVE The first legal shots over the amendments were fired by the Florida Hospital Association in mid-October. That group hired attorneys Stephen Grimes and Jerome Hoffman, from the Tallahassee office of Holland & Knight, and filed lawsuits to block implementation of lawyer-backed Amendment 7, in Alachua County Circuit Court, and Amendment 8, in Leon County Circuit Court. Amendment 7, which passed with the support of 80.7 percent of the voters, would open a broad array of now-confidential reports on doctors’ medical errors to the public. Amendment 8, which garnered 70.5 percent support, would permanently revoke the medical license of any doctor found to have committed malpractice three times — whether by jury verdict, administrative ruling or arbitrated finding. The lawsuits are similar in that they both ask the courts to hold the amendments in abeyance until the Legislature can write laws that spell out specific guidelines on their implementation. “The amendments are so broad and so vague that there will be mass confusion if they are tested on a case-by-case basis in the courts,” said FHA general counsel Bill Bell. “Only the Legislature can address how the process will work in total.” Bell said unresolved issues about Amendment 7 include how the measure would interact with federal laws governing the obligation of hospitals and doctors to preserve patient confidentiality — notwithstanding the amendment’s provision that patient identities remain confidential. “We’re concerned that so much information will be revealed that patient identities will be easy to piece together,” he said. Bell also cited the need to provide greater specificity on what medical records can be requested, who can request them, and whether the records can be used in litigation. “This is not public records law [under which they could be used in court],” he said. “That’s a significant point.” Bell said that Amendment 8 is unconstitutional because it pressures doctors to surrender their due process guarantee to trial by jury. It does so, he argued, because it exempts settlements agreed to by doctors without going to trial from the three strikes for which doctors licenses are revoked. The Florida Medical Association is considering a suit of its own. According to general counsel John Knight, the group has hired “a large, statewide firm,” which he declined to identify, to study a legal challenge to Amendment 8 if an attempt is made to apply the measure retroactively — that is, to count as a strike under the new scenario malpractice judgments that predate the amendment. Knight said other points needed clarification. “Can you have two strikes coming from the same set of facts?” he asked. “What about judgments in other states and other countries, where the standard of proof can be greatly different from Florida?” Broward medical leader Palamara said he is “not terribly scared” of the Legislature’s ability to “craft the difficult legislation needed to clarify” how Amendments 7 and 8 would be “put into practice.” Does that mean he expects the GOP-dominated Legislature to bend the amendments in favor of doctors rather than patients, for whose benefit the amendments were purportedly drafted? “We are confident in the wisdom of the Legislature and [incoming House] Speaker [Alan] Bense,” Palamara said. “In this case, the interests of doctors and patients coincide.”

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