Florida doctors and lawyers turn to waivers after tort ruling

The medical profession says its patient form will help keep doctors in practice. Attorneys say injured patients should have their day in court.

By Amy Lynn Sorrel, AMNews staff. Nov. 6, 2006.

With dueling legal forms, Florida physicians and lawyers are asking patients to relinquish certain rights in medical liability cases. Their efforts are the result of a state Supreme Court ruling on a contentious tort reform measure that limits what plaintiff lawyers can collect.

The September decision by Florida's high court lets patients waive a cap on lawyers' fees, which voters approved as a constitutional amendment in 2004. Amendment 3, strongly backed by the Florida Medical Assn., restricts plaintiff attorneys' fees to 30% of the first $250,000 awarded to patients and 10% of damages greater than $250,000.

But some trial lawyers circumvented the cap by asking patients, before agreeing to accept a medical liability case, to waive their rights to a higher percentage of the jury award. Attorneys could collect fees that range from 33% to 40% of awards up to $1 million, 20% to 30% of awards between $1 million and $2 million, and 15% to 20% of any recovery greater than $2 million. This is the maximum percentage that lawyers can accept under a court-established scale.

The FMA last year had petitioned the Supreme Court to draft a rule that reflected the changes passed in the amendment. The American Medical Association/State Medical Societies Litigation Center, along with the Mississippi State Medical Assn., filed comments in support of FMA's petition.

But in a preliminary ruling last December, judges decided against the medical society's recommendation. The court said the constitutional right was one that patients were entitled to give up if they couldn't find a lawyer to take their case. It finalized its decision in September. Justices added that the waiver does not require their approval, unless the fees lawyers are requesting exceed the court-sanctioned maximum.