Florida high court says med-mal fee limits impede right to counsel.

The Florida Supreme Court has ruled that attorney fee limits in medical malpractice cases, set in a recent amendment to the state constitution, can be waived--as long as lawyers fully inform their clients about the rights they are giving up and plaintiffs show they've done so voluntarily. The court agreed with the Florida Bar Association's contention that fee limits interfere with plaintiffs' right to find counsel of their own choice. (In re Amend. to the Rules Regulating the Fla. Bar R. 4-1.5 (f)(4)(b), 2006 WL 2771252 (Fla. Sept. 28, 2006).)

The decision brings to a head a long-simmering Sunshine State battle between doctors and trial lawyers--at least for this round.

In 2004, the Florida Medical Association (FMA) promoted an amendment to the section of the state constitution addressing lawyers' rules of professional conduct. The amendment is known as Rule 4-1.5. Voters approved the measure, which guaranteed that plaintiffs in medical malpractice cases would receive a set percentage of any jury award or settlement: 70 percent of the first $250,000, and 90 percent of any additional amount. The balance would cover lawyers' fees and court costs.

The Florida Bar Association and other lawyers' groups protested the rule change, saying it reduced plaintiffs' ability to find lawyers willing to take their cases. Trial lawyers began asking their clients to sign waivers giving up their right to the percentage of the recovery specified in the amendment--even though Rule 4-1.5 did not contain any provisions for waivers.

"Those fees look high, but med-mal cases are very expensive--people have no idea how expensive," noted Philip Burlington, a lawyer in West Palm Beach who, with others, represented the Academy of Florida Trial Lawyers (AFTL) in the September hearing. "This amendment impeded people's ability to obtain counsel."

After a hearing last December, the high court instructed the bar to submit proposed wording for a revised rule. In September, several groups--including the AFTL, the Florida Consumer Action Network, and numerous state trial lawyer associations on one side; and the American Medical Association, Florida Chamber of Commerce, and the Florida Insurance Council on the other--appeared before the court.

The Florida Bar's proposal included a carefully worded and detailed waiver form that plaintiff lawyers would use uniformly. The FMA and its co-petitioners favored a version known as the Grimes petition, which modified Rule 4-1.5 slightly and included a requirement for judicial review of waivers.

The court rejected the Grimes petition and accepted the bar's proposed rewording--and its version of the waiver--with minor modifications.

"Given the reality that the amendment is now in effect and that waivers are currently being made, we agree there is a need for guidance and uniformity in order to protect both the claimants and attorneys involved," Chief Justice R. Fred Lewis wrote for the court. "The rule acknowledging the provisions of the amendment and providing for waiver of the personal right guaranteed by the amendment should meet this need."

The court also denied the Grimes petitioners' request for judicial review of the waivers, saying, "We do not find it appropriate to place the courts in the position of unduly restricting the right of a competent adult client to waive his or her rights.... Instead, we believe the court's role, when appropriate, is to ensure that any waiver is made knowingly and voluntarily."

Burlington said the decision means that Florida lawyers will have to be careful to take extra steps, informing their clients of the right guaranteed by the amendment and ensuring that they waive it willingly. "But now, at least, patients have a choice," he said. "They can seek counsel that will perform under these limitations, or they can waive their constitutional right."

He added, "This is a state issue, so it won't be going beyond us, to the U.S. Supreme Court. We are through in the court system as far as the ethical issues of this amendment are concerned."

Maybe so--but in some quarters the scuffle rages on.

"Wouldn't you know, within days of the decision, the FMA put out its own waiver," said Burlington. "This one asks patients to agree not to sue their doctors for any amount over $250,000 in noneconomic damages. Do you think there might be a bit of an antitrust issue here?"

Robert Peck, president of the Center for Constitutional Litigation, who also represented the AFTL, said, "The FMA is so blinded by their hatred of malpractice cases that they doggedly keep going down roads that the law forecloses to them. This new tactic will only get them in trouble again."