April 1, 2004 Gary Blankenship Senior Editor Regular News Court to review amendment to limit fees Court to review amendment to limit fees Contingency fees in medical malpractice cases are at issue Senior Editor A constitutional amendment that would limit attorneys’ fees in medical malpractice cases has gone to the Florida Supreme Court for review to ensure it encompasses only one issue and its ballot summary and title are accurate.The Academy of Florida Trial Lawyers is filing comments on the amendment, and the Bar’s Trial Lawyers Section is seeking permission from the Bar’s Executive Committee to file. The academy, through a political committee, also is preparing three amendments that would tighten regulation of doctors, open up medical records to patients, and mandate that doctors charge all patients the same rates for identical services.The court set a deadline of March 31 for comments, of April 20 for reply briefs, and it will hear oral arguments on June 8 on the contingency fee amendment. Under the Florida Constitution, the court is charged with reviewing proposed initiative constitutional amendments to ensure that they do not contain more than one subject, and that the ballot title and summary accurately reflect the content of the amendment.Proposed amendments are forwarded to the court by the attorney general when backers get 10 percent of more than 488,000 verified signatures they need to get on the November general election ballot.The amendment is being pushed by Citizens for a Fair Share, a political committee created by the Florida Medical Association. The amendment provides that in any medical liability case, the client must get no less than 70 percent of the first $250,000 awarded, not counting costs and expenses. Above $250,000, the client would get 90percent of any award, after costs and expenses.Plaintiff’s lawyers have said that will make it impossible for lawyers to take many medical malpractice cases and injured patients will bear the brunt of coping with their ailments.Lisette Mariner, a spokeswoman for the FMA, said the association is confident the amendment will pass Supreme Court scrutiny, and that Citizens for a Fair Share will be able to collect the necessary signatures to get on the ballot.“We wouldn’t be going through this if we didn’t think we could get the signatures,” she said. “It’s an issue that the people of Florida are looking to resolve.”Paul Jess of the AFTA said the academy is confident it can successfully challenge the amendment both on the single issue and the accuracy of the ballot title and summary grounds.“We have hired a team of lawyers who are writing, drafting our comments to the Florida Supreme Court,” Jess said. “We think that their amendment is fatally flawed and we are confident that the Florida Supreme Court will strike it down, both as violating the single subject rule and because the ballot title and summary are misleading.”Jacobs sent a letter to Attorney General Charlie Crist, before he forwarded the amendment to the court, outlining problems the section saw with the amendment.Those included that the amendment title, “Claimant’s Right to Fair Compensation,” is misleading. (The ballot title is different: “The Medical Liability Claimant’s Compensation Amendment.”) “It is an attempt to limit contingent legal fees to 30 percent of the first $250,000 and 10 percent of everything in excess of $250,000,” Jacobs wrote. “The obvious hope of the petitioners is to prevent patients from suing doctors. Note there is no limit on the fees doctors may pay for their defense.”Other problems, he said, include that the summary uses the term “injured claimant” while the text of the amendment refers only to a “claimant” and several terms in the amendment are not defined, including that only “reasonable and customary costs” would be paid.“The very nature of this proposal is at best disingenuous,” Jacobs wrote. “If adopted it would place an extraordinary burden on the courts of this state to interpret its many ambiguities. Its worst feature remains, however, the deception attempted to be put forward to the citizens of this state.”Aside from the FMA amendment, the academy is working on its three amendments, being sponsored by its political committee Floridians for Patient Protection. Jess said 175,000 signatures have been collected on each, and as soon as enough of those are verified by local supervisors of election, they will be submitted to the court.One amendment would revoke the license of any doctor who loses three malpractice judgments; the second would give patients access to confidential peer reviews and adverse incident reports (which now are immune even from subpoenas); and the third would require doctors to charge the same rate for the same services for all patients. Doctors now frequently negotiate contracts with HMOs and insurance companies to offer reduced rates to those patients covered by those plans.To get on the ballot, the amendments will need around 600,000 signatures in order to get the 488,000 valid voter signatures.“We anticipate no problem in getting that number of signatures prior to the certification deadline,” Jess said.The FMA’s Mariner said her association takes a dim view of the academy amendments. “We see it as retaliation,” she said.To get on the November general election ballot, the verified signatures must be submitted to the secretary of state by August 31.As proposed, the contingency fee amendment would create Section 26 to Article I of the constitution, which would be called, “Claimant’s right to fair compensation.” The amendment reads: “In any medical liability claim involving a contingency fee, the claimant is entitled to receive no less than 70 percent of the first $250,000.00 in all damages received by the claimant, exclusive of reasonable and customary costs, whether received by judgment, settlement, or otherwise, and regardless of the number of defendants. The claimant is entitled to 90 percent of all damages in excess of $250,000.00, exclusive of reasonable and customary costs and regardless of the number of defendants. This provision is self-executing and does not require implementing legislation.” Additional language provides the amendment becomes effective the day after it is passed by voters.The ballot title, if the amendment does get to the November election, is “The Medical Liability Claimant’s Compensation Amendment.” The summary reads, “Proposes to amend the State Constitution to provide that an injured claimant who enters into a contingency fee agreement with an attorney in a claim for medical liability is entitled to no less than 70 percent of the first $250,000.00 in all damages received by the claimant, and 90 percent of the damages in excess of $250,000.00, exclusive of reasonable and customary costs and regardless of the number of defendants. This amendment is intended to be self-executing.”In a related development, identical constitutional amendments were filed in the House and Senate. If passed by the legislature, they would automatically go to the ballot without the need for getting signatures or for the Supreme Court’s review.The House version was tentatively set to go to the Judiciary Committee on March 18, but was pulled from the agenda after three Republican members of the committee, including Chair Jeff Kottkamp, R-Coral Gables, said they opposed the measure.House Speaker Johnnie Byrd, quoted in the St. Petersburg Times, said it was unlikely the amendment would be taken up and passed in the House.As of Bar News deadline, the Senate version of the bill had not been referred to any committees.