Fla. High Court Allows Waiver of Minimum Malpractice Award

The back-and-forth battle between lawyers and doctors over medical malpractice escalated recently when the Florida Supreme Court approved a rule letting lawyers avoid limits on their fees. That led doctors to say they may require patients to sign waivers limiting their ability to sue.

Voters changed the state constitution in 2004 to add a guarantee that victims of medical malpractice would get at least 70 percent of the first $250,000 of a jury award or settlement in such cases, and 90 percent of anything above that.

The amendment had been pushed by the Florida Medical Association. Doctors have long said that “greedy trial lawyers” are spurred to take malpractice cases by the possibility of a jackpot payoff which, in turn, leads them to take cases without merit and drives up malpractice insurance costs.

But after the constitution was changed to limit legal fees on most of the awards, a few lawyers began asking some patients to sign an agreement to waive their right. They said that without the ability to do that, few lawyers would take on difficult cases because they’re expensive to try. That would leave injured patients without access to legal recourse.

Last Thursday, the Supreme Court approved a procedural rule, written by the Florida Bar, that allows that practice to continue. The high court’s unsigned opinion noted it is “firmly established that such constitutional rights designed solely for the protection of the individual concerned” can be waived.

The court’s approval of the rule wasn’t a surprise — the justices instructed the Bar in December to draft the rules allowing patients to waive their new constitutional right, after another proposed rule on how to implement the amendment didn’t address that possibility.

So the FMA, which represents 16,000 doctors, and has been fighting trial lawyers over the issue for years, announced Thursday that it will begin supplying doctors with waiver forms they can give their patients if they want.

That waiver says the patient agrees not to sue the doctor for more than $250,000 in non-economic damages if anything goes wrong. It doesn’t limit economic damages, such as the cost of follow-up care or lost wages.

FMA President Dr. Patrick Hutton said that if the lawyers were going to get around the limit on fees, then malpractice awards won’t come down and malpractice insurance rates won’t get lower. That will limit patient access to doctors, he said.

“This waiver will empower patients,” said Hutton, an orthopedic surgeon in Orange Park. “Patients have a right to receive the quality and timely health care they deserve.”

He also said the voters intended to limit lawyers’ fees, not give victims the option of lower fees. “We cannot allow trial lawyers to circumvent the will of the people,” Hutton said.

Lawyers said doctors should focus on reducing malpractice as a way to keep from having to pay claims.

“I think it’s incredible that the Florida Medical Association, instead of dedicating its efforts to trying to prevent medical errors …. appears to be more interested in denying compensation to victims,” said Paul Jess, general counsel of the Academy of Florida Trial Lawyers.

FMA chief executive Sandra Mortham said Florida was the first state in the nation with a unified move by doctors to have patients sign waivers not to sue.

There was a partial dissent to approval of the rule by two Supreme Court justices. Justices Charles Wells and Kenneth Bell agreed that malpractice victims should be able to waive their right to 70 percent of the award, but they said that when people waive that right it should have to be approved by a judge.