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3-Strikes Rule Being Challenged, Dissected

Orlando trial lawyer Scott McMillen has created a buzz by challenging Florida's 3-strikes medical malpractice rule.

McMillen has filed a medical liability lawsuit to challenge the 2004 constitutional amendment, set in motion with a 2005 law that raised the standard for a medical malpractice strike from "preponderance of evidence" to "clear and convincing evidence." He said the law makes it too difficult for a physician to be popped with a violation.

Healthcare attorneys say that's not exactly true.

"The challenge isn't whether the 3-strikes rule is valid," Michael Lowe, an Orlando-based, board-certified healthcare attorney. "The challenge is whether the Board of Medicine/Department of Health has the discretion to make regulatory decisions."

Lowe said it's important for physicians to understand what constitutes a medical malpractice strike in Florida. "A settlement is not considered a strike," he said. "A judgment, jury verdict, binding arbitrary decision, or discipline by the Board of Medicine is considered a strike."

The 3-strikes rule came about several years ago, during the height of tort reform in Florida. Doctors wanted to cap legal fees; trial lawyers wanted the 3-strikes rule. The amendment to the Florida Constitution approved by voters on Nov. 2, 2004 allowed the state to revoke doctors' licenses if found guilty of three instances of medical negligence.

Plaintiff attorneys liked the baseball rule because it gave them leverage to settle quickly. But in Florida, insurance companies are not required to settle, and the 3-strikes rule took away some incentive to compromise. Therefore, many medical malpractice cases are heading to the courtroom, where a jury of six citizens determines the outcome.

"The unfortunate result of all the political maneuvering is that doctors ended up caught in the middle," said Lowe. "It's an interesting dichotomy, a tug-of-war. We're talking bare knuckles."

Lowe contends that physicians should be able to follow due process: a probable cause panel, administrative hearing, Board of Medicine approval or disapproval, and in some instances, the Florida Supreme Court.

"I want safe doctors, too," said Lowe. "But regulatory decisions should be left to a board of their peers, who are educated in medicine, to make regulatory decisions."

Over their career, doctors in high-risk specialties such as neurosurgery or obstetrics may accumulate a dozen lawsuits, even if they are correctly practicing medicine.

"How could citizens on a jury, whose understanding of the legalities of a case may be overruled by their emotions, determine the fate of a good doctor? If a doctor loses his license in Florida, they can't practice anywhere else, and all that training, education and talent may go to waste unnecessarily."

Jon Pellett, a healthcare attorney who represents physicians before the Florida Board of Medicine, pointed out that voters also approved an amendment (see box) on Nov. 2, 2004, to cap attorneys' fees on medical malpractice lawsuits. To circumvent the spirit of the new law, plaintiff's attorneys simply ask clients to sign a waiver concerning the capped fee formula before they take a case. They can do this, he pointed out, because obtaining a waiver from the client has been approved by the Florida Supreme Court. (It amended Rule 4-1.5 of the Florida Rules of Professional Conduct to allow waivers of the constitutional cap.)

There was pushback in one case, Pellett noted. A Pinellas Circuit Court judge was asked to look at a fee arrangement for a minor and the minor's parents that went outside the constitutional fee cap following settlement of their cases. "The judge wasn't happy with the fee arrangement for the minor's case," he said, "but accepted the arrangement for the minor's parents."

Pellett pointed out that in Florida, insurance carriers have the right to settle a case without permission of the doctor. "A doctor does not need to give the carrier permission to settle," he said. "That's not true for dentists."

Pellett also noted that in cases before the Board of Medicine, the trend resulting from the 3-strikes rule and changes from 2003 shows more cases being settled and not as many being filed. But, he quickly added, the environment needs to be improved.

"Right now, Florida is an anti-healthcare climate," said Pellett. "The theory behind tightening regulations has been to get the bad doctors, but more often it's affecting the good ones. It's just now damaging the healthcare system and more damage will be evident as time goes by."

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Jon Pellett, Michael Lowe

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