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In Florida, Three Strikes and You're Out

Scheck, Anne

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After Florida voters amended their state constitution to revoke the medical license of any physician who accumulates three malpractice judgments, evidence of its initial effects on emergency medicine came whirring across the fax machine of Rick Slevinski, MD.

The fax was a letter — a resignation, actually — and it was signed by a medical school graduate who was bowing out of a residency match for an emergency medicine program at a Florida Hospital. The reason cited: that same voter-approved constitutional amendment.

Even though Dr. Slevinski, who was made privy to the letter by a colleague, thinks the withdrawal was an isolated case, it offers tangible proof to him that the new amendment will have a chilling effect on emergency medicine staffing in the state.

“Most [emergency physicians] don't have three suits filed against them in their whole lifetime,” he said. Nonetheless, it has some of them running for cover to safer places, he asserted.

From the everglades to the panhandle, the sunshine state has been embroiled in a series of legislative malpractice-reform battles that, arguably, are the highest stakes in the nation. “It's a war, very much a war,” said Dr. Slevinski, an emergency physician and a former medical director of Florida EMS. The problem is, he predicted, if the war continues, nobody will win, and the biggest losers will be those needing health care.

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JD vs. MD

“It is trial lawyers fighting physicians,” agreed David Siegel, MD, JD, who runs his own consulting firm and is a clinical professor of emergency medicine at the University of Southern Florida College of Medicine in Tampa. Dr. Siegel said he dislikes the idea reported in the press that emergency physicians fired the first volley.

A 2003 law that offered what may be the best malpractice cap in the country for emergency physicians is often cited as the opening salvo on this battleground. Two years ago, Florida became the first state to establish a noneconomic cap of $150,000 in jury-awarded damages for emergency medicine providers — and it was solely for those providers. Dr. Siegel, who chaired the Florida College of Emergency Physicians' government affairs committee at the time, remembers it being hailed as ground-breaking, but it also was seen by some in the state's legal community as a threat.

The law limits the damages of an emergency-related suit for an alleged incident of malpractice to $300,000, making it protective for other specialists involved in urgent care. Physicians in other areas didn't fare so well, though they got a cap, too, of $500,000. “But it was a soft cap,” explained Dr. Siegel. And, as a result, the Florida Medical Association staged quite a fray of its own. The association recently sought and won a provision to limit contingency fees for attorneys filing such suits.

“It's a war, very much a war.” - Dr. Rick Slevinski

“It is trial lawyers fighting physicians.” - Dr. David Siegel

Meanwhile, the trial lawyers worked on their own set of proposed laws, including the constitutional change. What did they win besides that one? A change that alters peer-review confidentiality, or so it appears. Supported by the lawyers and approved by voters in the same election, it apparently aims to open up peer review, making records of it more accessible. “I can tell you that even e-mails are no longer being written as a result of that one,” said Dr. Slevinski. Added Dr. Siegel: “I know of morbidity and mortality conferences that have been cancelled, but I won't go into specifics.”

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Protracted Legal Fights

Both Drs. Siegel and Slevinski forecast a protracted legal fight for the emergency care caps. They said they expect the law to be challenged in court on various grounds by attorneys in the coming year. However, analysts say the same will be true for the constitutional amendment involving medical license revocation following three malpractice judgments, which has been dubbed by the media as Florida's “MD three-strikes law.”

The ‘three strikes’ law may result in more settlements to avoid malpractice judgments, which may result in more suits filed in pursuit of easier settlements

Regional press coverage of the law has prompted editorials, with some pundits decrying the move by Florida voters, while others have cast some blame on doctors who allegedly wanted to cut the earnings of malpractice lawyers by limiting their fees on collections from litigation.

Meanwhile, a judge has ruled that the state legislature needs to specify the ways in which the “three strikes” amendment will work. One possible scenario, according to Florida physicians who have weighed in on the matter, is that cases will be settled out of court to avoid any chance of a malpractice judgment. One of the gloomier predictions is that more malpractice suits could result, as lawyers chase what might become a better climate for easier settlements. “We are still waiting to see what will really take place,” Dr. Siegel said.

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© 2005 Lippincott Williams & Wilkins, Inc.

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