Insurers Sit Out Fla. Malpractice Law Battle

Lester Brickman, a professor of law at the Benjamin N. Cardozo School of Law of Yeshiva University in New York, said the "three strikes" law "largely, though not entirely negates" the benefits doctors obtained through another Florida initiative limiting contingency fees for attorneys.

Civil litigation, Mr. Brickman said, "is a function of the rate of return for attorneys," and the limits on contingency fees "would have reduced the amount of litigation," by effectively limiting that rate of return.

The "three strikes" law effectively reverses that, he noted, as it "virtually assures early settlement without much case effort on the part of the lawyer."

Mr. Brickman predicted "a lot of small medical malpractice claim filings," arising from the "three strikes" law, as physicians will be more likely to seek a settlement.

"Doctors will demand that cases be settled rather than risk going to discovery and trial to avoid the possibility of getting a 'strike,'" he said.

Even before the election, the law was challenged in court by the Florida Hospital Association. Since the election, Judge Janet Ferris of the Second Judicial Circuit Court in Leon County has issued a temporary stay of the law to give state lawmakers a chance to clarify some of the language in the measure.

In the meantime, The FHA is hoping to take the case through the court system to the state Supreme Court, according to its general counsel Bill Bell. Mr. Bell said there were numerous questions about how the law could be implemented that needed to be addressed, including how the state Medical Board, which would issue "strikes," should view decisions in other states or countries and what level of responsibility constitutes a "strike."

"What if a doctor is found to be only one percent negligent?" he asked. "Is that a 'strike'?" Mr. Bell also noted concerns that a settlement, regardless of how negligent the doctor involved may have been, would not constitute a "strike" against him or her.

The state legislature has begun meetings in a special session, but Mr. Bell noted that lawmakers have held on organizational meetings thus far and would likely not begin work in earnest on the "three strikes" law until January.

Insurers have remained "on the sidelines" on the "three strikes" debate, according to Julie Pulliam, a spokesperson for the American Insurance Association Southeast Regional Office. Ms. Pulliam had said in the days after the election that the industry chose not to get involved in the ballot initiative campaigns because of a preference for working directly with state lawmakers.