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Med mal fees.

Article I, [section] 26 of the Florida Constitution (Claimant's Right to fair compensation) is a bad idea. Its probable intended effect was to reduce the number of medical malpractice actions by making it difficult for victims to hire lawyers. Such a measure has no place in the Florida Constitution. The fl aw, in my opinion, is that a resounding supermajority of Florida's electorate approved the measure.

Article I, [section] 26 unequivocally states that a malpractice plaintiff is entitled to a designated percentage of malpractice recoveries and with equal clarity makes the measure self-executing. Its direct goal was to deprive the Florida Supreme Court of regulatory authority to permit otherwise. Under orthodox constitutional principles, the measure is incorporated by operation of law into every malpractice lawyer-client contract. That, without doubt, is what the people expected.

In what must be a holding of primae impression is the Florida Supreme Court has issued a rule whereby a lawyer may require a malpractice victim to waive the Article I, [section] 26 entitlement and pay a fee no less than if the measure had never been adopted. Although Justices Wells and Bell strongly dissented on this point, this waiver requires no judicial oversight. In short, under the repealing pen of the Supreme Court, the constitutional entitlement so heavily supported by the people has been booted from the constitution and supplanted by boiler plate waiver forms in lawyer-client contracts.

The Supreme Court's rule rests on the presumed maxim that any personal constitutional right may be waived. This maxim is demonstrably false as the Eighth and 13th amendments among others testify. But even apart from that, the court made no effort to distinguish the former so-called waiver cases--many of which are not waivers at all but exercises of alternative prongs of rights (the other side of the right to remain silent is the right to speak)--from the special facts pertaining to the purpose, adoption, and legal effect of Article I, [section] 26. This blindness to obvious distinctions is out of keeping with the court's usual careful analyses of precedents.

The Supreme Court's anointment of lawyers with authority to evade the constitutional billing constraint will fail the smell test in the nostrils of the voting public, especially that portion already cynical of "judicial imperialism." Many people, including our justices, are rightly alarmed by "conservative" daggers aimed at "judicial activism" that protects individuals against government more fully than critics think the constitution requires. The Supreme Court's "waiver" rule may invite a flight of "liberal" daggers aimed to kill conservative judicial activism that undermines rights the people thought they had.

Apart from the constitutional dubiousness of the court's rule, inviting such a reaction seems unwise and is certainly unnecessary. If Article I, [section] 26, as written, had proved to be unpalatable in practice, the people held a ready solution in their hands. Repeal it. The Supreme Court made a needless mistake that may be eagerly read as protecting self-interest. Only apathy, aided by good luck, will avoid a public backlash against the court, independence of the judiciary, and self-regulation of the legal profession.

Joe Little

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Author:Little, Joe
Publication:Florida Bar News
Article Type:Letter to the editor
Date:Nov 1, 2006
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