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Florida Passes Three-Strikes Malpractice Law

Nov 26, 2004 | AP

Florida voters approved a three-strikes law this month unlike any other state's: a measure aimed not at killers or thieves but at doctors who foul up.

The newly approved amendment to the Florida Constitution would automatically revoke the medical license of any doctor hit with three malpractice judgments. The ramifications of the measure, which was supported by lawyers, could be huge.

Legal experts say it could prompt a flood of malpractice suits. Doctors say it will scare some physicians away from Florida while forcing others to reach quick malpractice settlements to avoid a "strike."

"It has branded the state as probably the most unfriendly state for physicians," said Dr. Robert Yelverton, an obstetrician and gynecologist in Tampa.

The three-strikes law is just one salvo in a fierce battle between doctors and trial lawyers playing out across the country and in Congress. While several states have taken steps to limit malpractice awards, the fight is especially intense in Florida, where the cost of malpractice insurance runs higher than in most other states.

Doctors put their own malpractice measure on the Florida ballot this year, limiting how much of a malpractice award a lawyer can take as a fee. Such limits are already in place, but the amendment, which also passed, further reduces the lawyers' percentage.

Doctors claim that with less chance for a big payday, lawyers will be more selective about which cases they take.

A lawyer who makes his living primarily by representing malpractice victims, said the doctors' campaign to limit legal fees was motivated purely by enmity. "I don't think there's any question that the purpose of this amendment is to drive lawyers away from medical-negligence cases," he said.

Lester Brickman, a professor of legal ethics at the Benjamin N. Cardozo School of Law at Yeshiva University in New York, said the lawyers "trumped the doctors" with the three-strikes amendment, because lawyers will rush to sue in the hope that doctors will settle to avoid a "strike."

"In the next 10 years," he said, "virtually every doctor in the state of Florida will have been sued."

The three-strikes measure has yet to take effect. A judge has ruled that the Legislature first needs to spell out just how it will work.

The number of doctors who would have their licenses revoked by the three-strikes rule is extremely small, perhaps a dozen or so at the most, experts say. Florida has slightly fewer than 30,000 active doctors.

Dr. Yelverton is among the doctors caught in the middle of the fight.

Like thousands of other Florida doctors, he has never gotten in trouble for making a mistake. He has delivered more than 10,000 babies in his 33-year career.

But Dr. Yelverton, 63, said he had come to feel it was just not worth it to be a physician in this state, and he now works in the front office of his practice to develop procedures to reduce the risk of medical mistakes.

One reason he stopped seeing patients and delivering babies, he said, was the increase in the cost of his malpractice insurance and the feeling that at any time he could lose a lot of money in a lawsuit, whether it had merit or not.

"The hardest thing about giving up a very successful practice of 33 years is that your patients have come to rely on you for what they consider quality medicine and they have to find someone else," Dr. Yelverton said. "And it's one less experienced doctor."


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