After the Election:
Amendments 3, 7 & 8 to the Florida Constitution
As a result of the November 2, 2004 election, three Constitutional Amendments were passed that could have a significant impact on health care providers in Florida. The following is a summary of each of the three Amendments as enacted, the viewpoint of proponents and opponents of the Amendments, and the recent developments with regard to each since their passage.
Amendment 3: The Medical Liability Claimant’s Compensation Amendment
This Amendment provides that an injured claimant entering into a contingency fee agreement with an attorney in a claim for medical liability is entitled to not less than 70% of the first $250,000 in all damages received by the claimant, and 90% of damages in excess of $250,000, exclusive of reasonable and customary costs and regardless of the number of defendants. The amendment is self-executing, and applies to contracts entered into after midnight, November 2, 2004.
Proponents of the Amendment, including the American Medical Association, applaud the Amendment as helping to achieve tort reforms in Florida similar to that achieved in California. The basis of the reforms is a cap on attorneys fees, which ostensibly ensures that patients will receive more of the money awarded in medical liability cases. Additionally, proponents believe that insurance premiums will be better controlled and patients will have access to better care. Opponents of the Amendment, not surprisingly including the Academy of Florida Trial Lawyers, argue that the Amendment makes Florida’s healthcare system less safe and effective, as it limits a patient’s access to the courts (because fewer low-value cases would be taken by attorneys) and would cost taxpayers money to care for medical malpractice victims who were not fully compensated. Additionally, opponents argue that the medical industry will have more protections than any other industry and that doctors will be shielded from legitimate lawsuits.
Leaders of the plaintiff bar are planning legal challenges to the physician-supported Amendment 3. This Amendment passed with 63.5 percent of the vote, and was hailed as a great victory for health care by the Florida Medical Association. Two possible grounds for attacking the Amendment are 1) that the limits on contingency fees violate the state constitutional prohibition against laws impairing the right to contract; and 2) that the Amendment is vague. Regarding the latter ground, the plaintiff bar contends that it is unclear if the Amendment covers suits brought against hospitals, or if it only affects suits brought against doctors. Plaintiff attorneys predict that while doctors believe the number of lawsuits will go down as a result of this Amendment, the opposite will, in fact, occur, as attorneys will make up for the shortfall in fees by increasing the volume of their suits.
Amendment 7: Patients’ Right to Know About Adverse Medical Incidents
Pre-Amendment Florida law restricted information available to patients related to investigations of adverse medical incidents, such as medical malpractice. Additionally, adverse incident reports prepared for risk management purposes have been treated as work product, subject to discovery in litigation only upon the proper showing. This Amendment sought to give patients the right to review, on request, records of health care facilities’ or providers’ adverse medical incidents, including those that could cause injury or death. The Amendment provides that patients’ identities should not be disclosed.
Proponents of the Amendment, including the Academy of Florida Trial Lawyers, argue that this Amendment will arm patients with pertinent information regarding their physician’s malpractice incidents and adverse judgments, and will open the medical profession to public scrutiny. The Amendment would provide patients with critical information about doctors and hospitals in Florida.
Opponents of the Amendment, including the American Medical Association, argue that the Amendment invades patients’ privacy rights, and that physicians will no longer be able to perform peer reviews on other physicians, for fear that the review may result in the incident being disclosed. The system is dependent on confidentiality, and physicians will not participate if the information is to be made public. These reviews are important, as they address patient care concerns that help to reduce errors and to improve the patients’ quality of care.
The Florida Health Care Association is seeking clarification as to whether nursing homes and assisted living facilities are subject to the Amendment. Pursuant to the language of the amendment, it applies to “health care facilities” and “health care providers.” The phrases health care facility and health care provider are defined as having “the meaning given in general law related to patient’s rights and responsibilities.” Florida Statutes have limited definitions of terms contained therein. In the medical malpractice statute, there are three different definitions, however, of “health care provider”. The most broad definition lists:
hospitals, physicians, osteopaths, podiatrists, dentists, chiropractors, naturopaths, nurses, clinical laboratories, physician’s assistants, physical therapists and physical therapist assistants, health maintenance organizations, ambulatory surgical centers, blood banks, plasma centers, industrial clinics and renal dialysis facilities, or professional associations, partnerships, corporations, joint ventures, or other associations for professional activity by health care providers.
Not included in this definition are assisted living facilities or nursing homes, and thus the Amendment’s impact on both is uncertain.
The strategy taken by health care organizations has been to fight Amendment 7 in the courts. Courts granting Motions for Protective Order as to records requests made pursuant to Amendment 7 have done so holding that the Amendment is not retroactive and that information that was compiled or obtained by healthcare providers prior to its passage remains protected and confidential. At least one court in Pinellas County, Florida, has ruled that existing laws protecting records remain in effect until legislative enactment of Amendment 7 is implemented. Given the vague nature of the language of the Amendment, courts have stated that the scope of what records are covered is not clear. Does it cover actual adverse incidents? Or is its coverage more broad? There is great concern that as applied to incident reports, the Amendment will tie the hands of the court in determining whether they are subject to disclosure.
In the absence of direction from the Legislature, typical responses to requests for documents made pursuant to Amendment 7 have included that the requests are overly broad, vague and unduly burdensome, in that one is not certain what records can be released subject to the Amendment. Additionally, objections have been made based on pending litigation, including suit brought by the Florida Hospital Association. Further, arguments have been made that the Amendment itself is not self-executing, and that courts and the legislature need to provide direction prior to its being implemented. It has also been argued that the Amendment is not retroactive, and that records created prior to the Legislative action were protected by statute and/or contract.
Amendment 7 is currently before the First District Court of Appeals. In Kendall v. DuPree, Plaintiffs filed a Writ of Certiorari filed with the Court following the lower court’s denial of discovery requests seeking information related to past adverse incidents pursuant to Amendment 7. In the opposition brief to the Petition, Respondents argue that Amendment 7 is not self-executing, and that no legislative action has been taken to implement the Amendment. Additionally, Respondents argue that the retroactive application of Amendment 7 would violate the physician’s due process rights in “the confidentiality of peer review proceedings vested prior to the adoption of the amendment.” Such records were made with the expectation that they would remain confidential. To disclose these records, which were created prior to the Amendment’s enactment, would violate the rights of those involved in the peer review process, as those individuals believed, at the time they participated in the process, that the records would not be used against them. Bills are currently before the Legislature related to Amendment 7, and the 2005 Legislative session will likely address these issues.
Amendment 8: Public Protection from Repeated Medical Malpractice
Amendment 8 is colloquially known as the “three strikes” Amendment. Pre-Amendment law allowed medical doctors who had committed repeated malpractice to be licensed to practice medicine in Florida. The Amendment prohibits medical doctors who have been found to have committed three or more incidents of medical malpractice from being licensed to practice medicine in Florida. While the Florida Supreme Court approved of this Amendment by the narrowest of margins, a 4-3 vote, the Amendment passed by 71 percent of the popular vote on November 2, 2004.
Proponents of the Amendment, including the Academy of Florida Trial Lawyers, argue that nearly 195,000 Americans are killed each year by medical mistakes. The Amendment, proponents argue, will benefit patients by prohibiting doctors with three or more medical malpractice incidents to practice.
Opponents of the Amendment, including the American Medical Association, argue that doctors who practice in high-risk fields, such as obstetrics, neurosurgery and trauma, will be forced to leave Florida because of the fear of the three-strikes Amendment, and that new doctors will elect not to come to Florida to practice for the same reason. The result, opponents argue, will be decreased access for patients to quality health care.
Under the Amendment language, a medical doctor found to have committed three incidents of malpractice would lose his or her license. The “findings” include those by a civil court, administrative agency or a binding arbitration in Florida, another state, or another country.
The Amendment, Section 20 to Article X of the Florida Constitution, reads:
No person who has been found to have committed three or more incidents of medical malpractice shall be licensed or continue to be licensed by the State of Florida to provide health care services as a medical doctor.
For purposes of this section, the following terms have the following meanings:
The phrase “medical malpractice” means both the failure to practice medicine in Florida with that level of care, skill and treatment recognized in general law related to health care providers’ licensure, and any similar wrongful act, neglect or default in other states or countries which, if committed in Florida, would have been considered medical malpractice.
The phrase “found to have committed” means that the malpractice has been found in a final judgment of a court of law, final administrative agency decision, or decision of binding arbitration.”
Since its enactment, some attorneys have opined that this Amendment will actually lead to an increase in lawsuits aimed at physicians, as physicians will have more of an incentive than ever before to settle suits quickly and avoid a potential ”strike”.
Legal challenges to the Amendment have been launched in the courts. There are questions as to which agency or body would have the power to pull a medical license, and also questions as to whether past findings of malpractice could be used in the three-strikes count. Temporary injunctions have been imposed on the implementation of the Amendment in some cases as there are many details about the reach of the Amendment that are unknown. The Florida Hospital Association (FHA) and others joined to file an action for declaratory and injunctive relief to preclude the Amendment’s enforcement until the Legislature and appropriate state agencies have acted to implement the Amendment.
In their Motion, the FHA argued that the Amendment was not self-executing, as significant questions remained unanswered that made its enforcement impossible. For instance, the Amendment applies to “medical doctors”, a term that is not defined in the Amendment itself, or in the Florida Statutes. Additionally, the FHA Motion argued that there must be a method of conversion of medical malpractice judgments reached by a preponderance of the evidence standard, into “findings” sufficient to meet the Florida clear and convincing standard required for the revocation of a medical license. Further, it is unclear, the Motion argued, if past findings of medical malpractice are covered by the Amendment. The Second Judicial Circuit ruled in favor of the FHA, holding that an injunction must issue pending legislative action to implement the Amendment. In the meantime, existing statutes and rules related to the subject matter of Amendment 8 remained in effect, the court ruled. Bills are being proposed in the Legislature related to the enactment of Amendment 8, and the 2005 Legislative Session should see movement on this issue.
Martha D. Bolton, Esq.
Quintairos, Prieto, Wood & Boyer
1 Independent Drive, Suite 1650
Jacksonville, FL 32202