Florida Medical Malpractice Fight Continues

Doctors and lawyers are involved in yet another brawl over medical malpractice lawsuits. The doctors won passage of a constitutional amendment last year that seemed to limit legal fees in medical lawsuits.

But the lawyers appeared to be able to sidestep that by having their clients sign a waiver form, agreeing to pay higher fees. Now the doctors, with the help of some of their legal allies, are trying to use the lawyers’ own professional rules to limit the legal fees.

The case is headed to the Florida Supreme Court next month. In the middle of the rimes, who is helping the doctors make their case.

Grimes declined to comment on the specifics of the case other than to say: “It’s a difficult area. Both sides have their positions.”

A typical comment came from C. Rufus Pennington, a Jacksonville trial lawyer. “The so-called Grimes amendment represents an extraordinary attempt to wage a bitter political campaign within the realm of the rules of professional conduct,” he wrote to the court.

“It is extraordinary because there is no precedent for such a political battle in this context, and because the (Florida) Bar and Supreme Court forums for determining standards of professionalism and ethics are so unsuited for deciding the outcome of such an adversarial proceeding.”

“Amendment 3 also has important public welfare benefits, such as protecting consumers against overreaching attorneys, providing additional compensation to injured patients and reducing the costs of health care,” the American Medical Association said.

“It benefits physicians by curbing the cost of medical malpractice insurance and reducing the number of frivolous lawsuits.”

What irks some of the lawyers is that the FMA is using members of the legal profession to gain an upperhand in the ongoing controversy over legal fees in medical malpractice lawsuits.

One way to change the rules of the Florida Bar is to get a group of 50 lawyers “in good standing” to petition the Bar for a rules change. But the trial lawyers contend it is hardly a diverse or impartial group of lawyers that is asking for the FMA-backed change.

If the court allows a group “to change the rules that regulate the Bar as a whole to serve their singular interest, what we will end up with is a situation where justice will not be for all, but justice will be for a chosen few,” said Frank Petosa, a West Palm Beach trial lawyer.

“Many of the comments are overlapping or raise the same objections,” Grimes said about the lawyers’ numerous filings. “At least 37 of the comments are identically worded.”

In June, the Bar’s governing board rejected the FMA’s original rules change request. It said it was “premature” to consider the proposal until issues, such as the validity of the fee waivers, are litigated through the court system, the governing board said.

That will be one of the arguments the state’s highest court will have to consider next month. Other issues include the lawyer’s contention that capping legal fees will prevent injured patients from finding legal representation.

The lawyers say injured patients should have the right to waive the fee cap, just as they have the right to waive other constitutional provisions, such as the right to a jury trial.

In his petition, Grimes said that puts “the lawyer in an unethical position and (flies) in the face of the constitutional mandate overwhelmingly approved by the Florida voters.”

Link [www.theledger.com]

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