first_imgAnother AFTL amendment would give patients the right to see adverse incident reports relating to doctors and health care facilities they use, including those that could cause injury or death. The ballot title is “Patients’ Right to Know About Adverse Medical Incidents.” The ballot summary reads: “Current Florida law restricts information available to patients related to investigations of adverse medical incidents, such as medical malpractice. This amendment would give patients the right to review, upon request, records of health care facilities’ or providers’ adverse medical incidents, including those which could cause injury or death. Provides that patients’ identities should not be disclosed.”Justice Wells said he is concerned that voters reading the summary would be led to believe the amendment gives patients the right to review records of health care facilities “and that would leave the connotation that it is the health care facility that I was at, as opposed to it just opening it up to the world.”McLendon responded that, combined with the title, the summary makes it clear that “we are talking about consumer information and that it is meant more broadly than simply the acquisition of your own records.”“Why didn’t they simply say that then?” Wells asked. “Why didn’t they simply say.. . ‘all medical records are public,’ period? And that is what it says, right?’McLendon contended “the average voters of reasonable intelligence” will understand the chief purpose of the amendment is to make medical records available.Justice Peggy Quince asked who determines if the records being sought are adverse records.“This tracks the Patients’ Bill of Rights in the Florida Statutes, and in the Patients’ Bill of Rights it explains the type of incidents that would be adverse medical incidents, and our summary also makes it clear when it speaks about incidents such as would cause injury or death,” McLendon said.Wells, however, said nowhere in the amendment is the Patients’ Bill of Rights mentioned.McLendon noted the amendment also does not call for the creation of new records, just making records that already exist available to patients.Harold R. Mardenborugh of Tallahassee, representing the Florida Dental Association, attacked the proposed amendment, saying it should be stricken because it would substantially impact more than one branch of government.“The most fundamental impact is that it will effectively overrule the work product privilege that this court has put in place,” Mardenborugh said.“But isn’t that what all constitutional amendments do — override some pre-existing law in virtually every case?” Chief Justice Anstead asked.“This requires only the disclosure of that which is already collected as a matter of law,” said Jon Mills, representing Floridians for Patient Protection. “This is a simple amendment directed to overruling an exemption.”Same Fee July 1, 2004 Managing Editor Regular News Academy, FMA square off over amendments One of the AFTL’s amendments would amend the constitution to bar licensure of any physician found to have committed three or more incidents of malpractice. The ballot title reads “Public Protection from Repeated Medical Malpractice.” The ballot summary states: “Current law allows medical doctors who have committed repeated malpractice to be licensed to practice medicine in Florida. This amendment prohibits medical doctors who have been found to have committed three or more incidents of medical malpractice from being licensed to practice medicine in Florida.”Justice Charles Wells asked if that meant that if a doctor who had three “friendly suits” go to judgment 40 years ago and had no subsequent malpractice incidents would lose his or her license if the amendment passed. And in contrast, if a doctor who settled three malpractice cases in 1990s, without going to judgment, would be allowed to continue to practice.“That is correct, your honor,” said Timothy McLendon of Gainesville, representing Floridians for Patient Protection. He added that the measure is intended to remove discretion from the state agency that deals with licensing doctors and conceded, “it may inflict some hardship on certain people.”Justice Wells noted the ballot summary says doctors “who have been found to have committed three or more incidents” of malpractice would lose their license.“I think I would reasonably believe that, if a doctor settled three cases for $1 million each, that that person would be covered by this amendment,” Wells said. “But he is not.”That’s the point, said Tallahassee’s Stephen Grimes, a former justice representing the FMA, who argued the summary is misleading.“The voters could not conceive of the fact that maybe his family doctor is going to get disenfranchised,” Grimes said.McLendon said in order for past cases to count against doctors today, those old cases must meet the current definition of malpractice and, if passed, the measure would only apply to a “minuscule” number of doctors.Patients’ Right to Know The FMA’s proposed amendment is titled “The medical liability claimant’s compensation amendment.” The ballot summary states: “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 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.”Justice Fred Lewis noted the ballot summary doesn’t reflect “that citizens of Florida may not be able to obtain counsel and have access to court because you’re going to limit it in such a fashion that no one will become involved in these kinds of cases, which is really the underlying purpose here, it seems.”Grimes responded: “I submit that’s an argument that could be made. But on a facial assertion of that, I don’t think it would be such that would be cognizable in this case.”Grimes said the amendment would benefit clients because it will allow them to keep more of the recovery.But Chief Justice Harry Lee Anstead said it also could be argued that it doesn’t benefit claimants at all “because now they may not be able to find counsel to represent them in these cases because of this compensation limitation. Is that not an alternative argument?”“I think it is an argument that you could present to the voters if it gets on the ballot,” Grimes said.Buddy Jacobs, representing the Bar’s Trial Lawyers Section — which is made up of both plaintiff and defense lawyers — said the amendment is “almost seductive” in the way it is worded.“We are on behalf of claimants; we want to make sure claimants get this amount of money and that amount of money,” Jacobs said. “But still you’re restricting the rights of the claimants or the persons who are the victims of malpractice; you’re restricting their rights to pay lawyers. Well, the folks that aren’t here today are going to see this on the ballot, and they’re going to say, ‘Well gosh, this is wonderful.’ It is almost seductive, says we are going to guarantee people to have these kinds of percentages and recovery. Doesn’t talk about whether they can pay their lawyer, hire their lawyer, or how much they get paid.”Mills contended the amendment violates the single subject provision and that the ballot and title are substantially misleading.“I don’t think there is any dispute that this amendment supercedes and affects totally for the future the area of medical malpractice and perhaps other things.. . ,” Mills said. “It also has effects in areas such as, potentially, comparative liability, joint and several liability. There are some broad potential impacts. The most important impact is I think the impact on the court.”Mills said the most dangerous precedent would be for the court to approve an amendment which has declared itself self-executing because Art. V, Sec. I, states that the courts operate the judiciary. The third AFTL-proposed amendment would require doctors to charge the same rate for the same services for all patients and is titled “Physician Shall Charge the Same Fee for the Same Health Care Service to Every Patient.” The ballot summary states:“Current law allows a physician to charge different prices for the same health care provided to different patients. This amendment would require a physician to charge the same fee for the same health care service, procedure or treatment. Requires lowest fee which physician has agreed to accept. Doesn’t limit physician’s ability to provide free services. A patient may review the physician’s fee and similar information before, during, or after the health care is provided.”“I guess the question is whether, if a physician charges certain patients $1,000 for a service but ends up accepting from some patients, after the invoice goes out, accepting $800 for that service from one patient, does he then have to accept $800 from other patients, or can he accept more or less, as long as the invoice says $1,000 for everyone?” asked Justice Raoul Cantero.McLendon said the question hits at the prime problem that amendment is intended to address: “The practice of cost shifting, under which physicians discriminate between patients, in terms of allocating the cost, the changing of the fee for their services, and, yes, this amendment is intended to stop that practice.”“So if a physician accepts from Medicare, reimbursement that some may argue is less than the cost of providing that service, this would require a physician to accept the Medicare or Medicaid reimbursement schedule for all services rendered, regardless of the client’s ability to pay?” Justice Kenneth Bell asked.To which McLendon responded: “The doctors would have absolute ability to value their services. Once they have done so, in a context, whether it be Medicare or somewhere else, they could not charge anyone else a lower fee.”Bell, however, noted the individual physician does not set Medicaid or Medicare reimbursement rates, but are instead required to accept the reimbursement rate established by the government.“There is a rate that is set,” McLendon said. “But the participation by doctors is voluntary.”“So they would have to choose not to participate in Medicare or Medicaid if they did not want to be bound by this amendment, correct?” Bell asked.“If that rate was too small, then that would be one of the choices they could make,” McLendon said.Justice Peggy Quince also noted the amendment says nothing about HMOs or other third-party payers.Malpractice Fees Academy, FMA square off over amendments Mark D. Killian Managing Editor The Florida Supreme Court heard oral arguments in what Justice Barbara Pariente described as “tit for tat” proposed constitutional amendments being advanced by the Academy of Florida Trial Lawyers and the Florida Medical Association.The academy has proposed three amendments, being sponsored by its political committee Floridians for Patient Protection. One would revoke the license of any doctor who loses three malpractice or disciplinary 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.Working through its political committee – Citizens for a Fair Share – the FMA’s proposed amendment would limit how much money lawyers can make in a medical liability case.Over two days of arguments June 7-8, the court reviewed each of the four 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.Late on the second day of arguments, Justice Pariente marveled that the lawyers involved advanced the same arguments on consecutive days, depending on whose amendment was before the court. Each side represented their amendments as simple and straightforward while characterizing the other’s as ambiguous or misleading.“I am having trouble distinguishing the argument today from the argument yesterday, as far as this seems like four amendments that are going to perhaps cause a great deal of litigation if they are passed,” Pariente said.Three Strikeslast_img

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