At the same time that the poeple of the State of Florida voted to decrease how much attorneys could take in the awards of medical malpractice cases a second amendment to the state consititution was added by the trial bar. This was to find a way to capture money from physicians who could no longer afford or opted out of malpractice insurance. This was a policy that stated that if a physician had three awards against him that they would lose their liscense. This allowed attorneys to say if you don't settle with us for what we want you risk losing your liscense. Further, if you don't pay even with guarded assets no matter how frivoulous the case, you culd possibly loose your career. This was ontop of the problem for those who were insured were it was far cheaper for the insurance company to settle a case rather than to fight.

The economic reality is that it is still far more expensive to practice in Florida that in other states. If you cant afford the insurance, you have to go bare. Either way it will cost you.

Florida has passed a ton of "reform" measures to protect doctors:

Punitive damages must be proven by clear and convincing evidence, and is limited to $500k.

Periodic payments are allowed.

Noneconomic damages against emergency room docs are limited to $150k. Even then, a plaintiff has to prove "reckless disregard" to recover against ER.

Caps against other doctors of $500k.

Contingent fee caps between 15% and 33.3%, depending on the amount recovered.

At some point, shouldn't we admit that tort reform isn't working?

Although, I oppose tort reform, I support the homestead exemption of Florida. I would like to see it enacted in the remaining states. I support allowing renewal of licenses without proof of insurance.

The lawyers know that if they pursued blood money, first, they would watch their families killed, before they would be.

I support forcing all lawyers to carry legal malpractice insurance. That includes the cult criminals on the bench. That way, adverse third parties could always be suing them for damages caused by their carelessness.

Justinian, I still await your reply as to whether the great benefits of torts should help the victims of the lawyer profession, and help to improve the services of the lawyer profession. I still await your reply as to whether the privity obstable to such actions should be reversed by statute. No one has had that shield for the past 100 years.

This is a great article from Jack which summarizes the situation in Florida:

By JACK JAWITZ Special to the Tribune

The Tampa Tribune

Published: May 6, 2008

If you were a doctor, would you move to Florida if you knew how this state treats your profession?

• Liability insurance is so costly (when available) that two out of three physicians in south Florida are uninsured. Florida statute requires an uninsured doctor to have $250,000 for a settlement to practice medicine in Florida while on staff at a hospital. If you do not have this you will lose your license.

• The Florida malpractice carriers have the ability to settle a case whether you agree with them or not and whether you did wrong or not.

• You are held personally liable for all monetary judgments over your practice liability limits unless you tell the insurance company to settle the case for the limits whether you did wrong or not. The average Florida case is for over $1 million today.

• The Florida Constitutional limits of $500,000 on non-economic (pain and suffering) damages are unconstitutional per circuit court. This appeal is now before the Florida Supreme Court.

• The Florida Supreme Court has ruled that an expert witness may testify based on their personal knowledge or experience and not based on the medically accepted norms in the field of their expertise.

• Florida is the only state in the union to have a "three strikes and you're out" constitutional amendment. This broadly interprets that should a Florida jury or arbitrator find you at fault for a malpractice event, you will be assigned a strike. This is retroactive, and incidents in other states count. After three strikes, your license will be permanently revoked.

• The Florida Supreme Court has ruled that all medical expert testimony, whether true or a complete lie is fully protected on the witness stand and granted absolute immunity ... expert perjury, libel, or slander is legal.

• All hospitals are required to have committees (such as peer review, infection control, patient safety data, clinical privileges, internal risk management, etc.) for the medical profession to constructively find opportunities for improvement. In the past these "hospital improvement committees" were protected from legal discovery so physicians were encouraged to speak up and seek the truth for the benefit of system improvement. It is now the position of the Florida Supreme Court that all these previously protected meetings, retroactively to the beginning of the hospital, shall be open to inspection, discovery and scrutiny. A physician can be drawn into legal liability just for participating in these required committees. Most lawyers advise physicians not to participate in their own hospital improvement committees.

Well, after all the personal sacrifice to become a doctor, and to be told of these facts by practice recruiters and hospital headhunters looking for doctors in other states, I would decide not to move to Florida.

What would you decide? I made a decision to move to Florida 23 years ago before all the rulings and amendments.

I will be retired in five years. Who will replace me I ask?

Jack Jawitz is a physician practicing in Sun City Center.

SC,

As a practicing attorney I carry liability insurance and professional liability insurance. As far as I can tell if I make a mistake I can be held liable in a court of law. However, I haven't made any actionable mistakes (I'm sure I wore a missmatched tie when my wife was away, but other than that no mishandled cases). I fail to see what your beef is with the legal profession. We are more accountable here in Florida with the Bar disciplining attorneys than the Medical profession has even pretended to be. Dr. Farkas is a prime example of the irresponsible physicians we are plagued with.

Steve: I love the lawyer, the law, and jurisprudence. My love is so great, it is great enough to correct their serious mistakes.

You have rigged airtight. You can file bogus lawsuits, and the adverse third party has no recourse. In the misuse of civil procedure, one must prove scienter and malice. Short of a taped confession, those actions are shams. Rule 11 sanctions of 1983 were set back in 1993 due to excessive accountability of lawyers. Now, you have a 21 day take backsies and the advantage of notice before sanctions apply. All defendants should have 21 days of notice and take backsies before being sued.

The adverse third parties that have sued careless lawyers for malpractice have been pushed back by their lack of privity. No one else has had that shield since 1905.

The courts, in a gentlemen's agreements, have ruled that the lawyer has no duty to the adverse third party. Yet, there are hundreds of enumerated duties to the adverse third party in the Rules of Conduct, of Evidence, of Civil and Criminal Procedures, and hundreds of common law appellate decisions. The lawyer may have a larger number of enumerated duties to the adverse third party than to the client.

The term adverse third party is a non-partisan term. The plaintiff should be able to sue the other lawyer for filing a bogus defense.

You are referring to insurance to protect the client, the second party. I am referring to the adverse third party. The latter should also be able to sue the judge when falsely sentenced to death.

I am willing to allow tort reform protections for the lawyer, despite my opposition to all tort reform. So a certificate of merit should be required with the lawsuit filing. The burdens of proof can be higher for exemplary damages, etc.

I don't see the causal nexus between Florida tort reform and more Florida doctors practicing while uninsured. If anything, your post seems to indicate that doctors' practicing without insurance is due to a combination of: (1) trial lawyers' desire for deep(er) pockets; and (2) state homestead protection and bankruptcy laws.

Think of it this way: if the tort reforms were repealed, why would we expect more Florida doctors to suddenly purchase insurance?

In sum, Justinian, I think the "backfire" notion needs some fleshing-out.

Allow me to flesh it out. Part of the reason these "reforms" was to lower insurance premiums for doctors. Implicit in that goal is that the legislature expected doctors to buy the lower-priced insurance. But instead, doctors are simply choosing not to buy insurance for two reasons. First, the hurdles to bring a medical malpractice lawsuit are very high, which will reduce the likelihood that doctors will be sued. Second, doctors know that when they don't have insurance, it's even less likely they'll be sued.

If the tort "reforms" were repealed, I expect more doctors would buy insurance because (a) more lawsuits would probably be filed, and (b) the potential value of those lawsuits would be higher without damage caps. Thus, repealing those laws would make doctors feel like they're at greater risk of being sued. That's exactly what leads people to buy insurance.

So if a goal of tort reform is to increase the number of physicians with medmal insurance, Florida has failed.

But if the goal of tort reform is to simply reduce the number of lawsuits regardless of whether the lawsuits have merit... perhaps Florida has succeeded.

As you probably know, the contingency fee caps are easily circumvented - the attorney simply gets his client to agree to waive the cap - or he doesn't take the case. From what I've heard , all attorneys that handle the medmal cases have gotten their clients to "voluntarily" waive the fee caps, so the amendment really hasn't had much affect

"[R]epealing those [tort reform] laws would make doctors feel like they're at greater risk of being sued. That's exactly what leads people to buy insurance."

Justinian,

Were there no bankruptcy protection available to doctors, I would tend to agree.

What bankruptcy protection does is negate that portion of liability above the doctor's non-protected assets. The larger that portion of liability that bankruptcy can negate, the more valuable bankruptcy protection becomes.

Thus, because of bankruptcy laws, increasing the potential damage awards against doctors has the *opposite* effect: it makes bankruptcy that much more attractive, relative to the required insurance premiums for the increased financial risk. So a "greater risk of being sued" means a greater desire for bankruptcy protection.

If Justinian understood the article, he would understand that the phenomenon he describes has nothing to do with tort reform, and everything to do with the combination of the trial-lawyer-imposed three-strikes rule (that creates a personal cost for doctors when insurance companies settle cases) and the unusual Florida bankruptcy laws that permit one to shield substantial assets. (Cf. OJ Simpson, who took advantage of this years ago to get out from under the civil verdict.) Nothing to do with tort reform, and his comments in this thread show that, even after the error was pointed out, he's going to keep the dishonest post title and not correct himself. Score another point for the dishonesty team.

Still, I am amused to see Justinian arguing that the federal bankruptcy laws should have included a preemption clause to eliminate individual states' choices to have huge homestead exemptions. I don't disagree, but perhaps Justinian should consider the effects of the lack of preemption when his knee jerks about it in other contexts.

(Separately: has Justinian ever had an honest post title? His record is surely less than 50% on that score.)

Speaking of dishonesty, Ted, please point out where I argue against permitting states to have homestead exemptions.

And are you suggesting that eliminating these "reforms" won't lead to an increase in high-dollar medmal lawsuits?

SC,

What you are looking for would spell the end of the judicial system. How could you find a judge who would hear cases if every decision would prompt a lawsuit from the losing party? In Florida with wrongful convictions, the Legislature is charged with passing a claims bill to compensate the wrongfully held prisoner. A recent case of a man wrongfully convicted of rape and held in prison for over 25 years resulted in the Legislature passing a claims bill for $1 million to that man.

I don't think holding the judge accountable individually would add anything to that situation. I mean the entire system failed that man, from the victim misidentifying him, to the state attorney charging him, to the jury deciding his guilt, to the defense attorney who couldn't convince them of his innocence until DNA 25 years later exonerated him.

Goes back to Old Voltaire, better to let a thousand guilty men go free than convict an innocent man.

Justinian wrote: "Ted, please point out where I argue against permitting states to have homestead exemptions."

Yet, just a few hours earlier, Justinian wrote: "I also wonder why the bankruptcy “reform” act doesn’t prevent millionaires from filing bankruptcy" -- when the only way a millionaire can file for bankruptcy and still be a millionaire is through the homestead exemption. Which is why Florida has this problem, and states without a huge homestead exemption and tort reform do not.

Does Justinian read what he posts, or does he just post without thinking about the meaning of what he posts?

Justinian also writes: "And are you suggesting that eliminating these reforms won't lead to an increase in high-dollar medmal lawsuits?"

Which simply shows that he either did not understand the article he linked to or the comment he responded to, or is trying to deliberately muddy the debate. The reforms have nothing to do with Florida's homestead exemption. Eliminate the homestead exemption, keep the reforms, the problem goes away. Keep the homestead exemption, eliminate the reforms, the problem gets worse.

"...when the only way a millionaire can file for bankruptcy and still be a millionaire is through the homestead exemption." Oh really? So then the extent of the advice of the financial advise the quoted advisor gives is to homestead? What say you and I open up a financial management shop down in Florida and help doctors with the homestead paperwork?

If there were absolutely ZERO "reform" measures in Florida, do you agree there would be more medmal lawsuits? I'm sure you do, else the major premise for tort "reform" is shot. Now, if there were no restrictions on medmal suits, do you agree that some of the suits would result in settlements or verdicts that are too small - say under six figures - for a doctor to want to file bankruptcy to avoid satisfying them? Seems like in such a scenario, doctors would be more likely to buy medmal insurance, doesn't it?

Agree with me or disagree with me - I don't care. But it's almost comical how you constantly accuse me of being dishonest when I simply have a different opinion than you. I think Vanilla is better than chocolate. Am I a liar if you prefer chocolate?

Steve: Those are intelligent and thoughtful concerns. Justinian refuses to answer the question at all. He wants it so that lawyers can sue all, and no one may sue them successfully. They are above the law because they run it. That justifies all self-help intellectually and morally.

Professionals get to set their standards of due care. So, I am willing to allow the tort reform measure requiring a certificate of merit with any claim. Another judge will have swear that the judge did something outside the standard of due judge care. I do not advocate strict liability for judges, as Justinian would like to enact for drug makers and doctors.

As to no one would want the judge job, that argument applies to people far busier and valuable than judges. My gardener makes more than judges. He would be far more missed than a judge should he become disabled. If a judge is eliminated, no one would care, nor even notice in their daily life. They do nothing but plunder on behalf of the land pirate. Make the judge carry professional liability insurance as the lawyer forces the doctor to do in most states. If the judge loses too many malpractice cases, insurance will refuse cases, and the careless judge will not serve on the bench anymore.

What are the goals of torts? Why do they not apply to the lawyer nor to the judge? The lawyer refuses to answer because it has Army Airborne to impose its tyranny.

Justinian: Here is a simple statistic to research. What fraction of medmal case verdicts favor the plaintiff? The standard set by the far more challenged criminal prosecution is 75%. If 75% of Florida medmal cases still favor the defendant, gross lawyer and judge malpractice persist.

Please, answer about your support or opposition to statutes ending all obstacles to ordinary professional malpractice claims against lawyers and judges. You too, Ted. Or explain why they have to have their immunities.

Asset restructuring isn't free; it means being less liquid and, if one is married, there can be family-law complications. Some doctors don't want to file for, or have to threaten to file for, bankruptcy to avoid med-mal lawsuits. They'll buy insurance instead. That choice will depend upon the degree to which doctors are willing to hamstring their assets to get the protection they're seeking. For some doctors, insurance is the cheaper option; for other doctors, inconvenient asset structures and bankruptcy threats are the cheaper option.

There are two elements to that equation. First, the cheaper asset restructuring is, the more likely a doctor will choose it. Florida law makes asset restructuring relatively cheap through its homestead exemption. I don't think there's another jurisdiction that lets you keep a mansion after discharging debts. Second, the more expensive insurance is, the more likely a doctor will choose asset restructuring instead of insurance; the two are substitute goods.

Thus tort reform, which reduces the price of insurance, reduces this sort of bankruptcy gamesmanship, by making insurance cheaper relative to asset restructuring.

Of course, Florida, as Overlawyered has documented, hardly has meaningful tort reform for doctors.

Like I said, Justinian, think before you post.

Well, Ted, it looks like I've now been the victim of a lost comment. It was a mid-length reply which you know doubt would have characterized as dishonest and an attempt to change the subject.

I will ask this, though: You don't think capping damages at $150k against ER docs and requiring the plaintiff to prove "reckless disregard" is meaningful reform for doctors? Or capping noneconomic damages at $500k, along with contingent fee caps?

Do you boys need more time to answer the question of why should lawyers and their running dogs on the bench should have any immunity? Immunity attached to the king because he spoke with the voice of God. Is there other justification the victims of these cult criminals should not be allowed any compensation in an airtight rigged, self-dealt system of immunity?

As you may recall, one of the aims of torts is to substitute for violence.

The judge is immune from personal liability for his decisions because he is an agent of the sovereign, same as a police officer is immune from personal liability while acting in his official capacity. In the case of the wrongfully convicted rapist I mentioned previously, the sovereign provided compensation to the victim.

I guess I'm not seeing how your solution would solve the problem you believe exists.

Steve: The sovereign had immunity because he spoke with the voice of God. That sole, bottom line justification is not lawful in our secular nation. Immunity violates the Establishment Clause. At the policy level, the judge, police, lawyer make as many harmful mistakes as anyone else. By their salaries, we know their activities are not worth much. So their victims should be compensated. Their mistakes and misconduct need to be deterred as much as anyone else's. Torts not deters misconduct, it deters the entire enterprise. By their immunities, governments have exploded in size and power. Unfortunately, government does nothing well. So the explosion has been one of incompetence. If you want to shrink an entire enterprise, make it liable.

There are many similarities between a lawsuit and a product. Because, the lawsuit harms in its intended use, I would apply strict liability standards to the lawsuit. You will then see a shrinkage in the pestilential activity of the lawyer profession, of government, and of its obstructionist effect on our economy, and safety.

They have taken the power, they need to take the responsibility.

Lastly, immunity is unjust.