Download a PDF of the Current Issue 2015 Volume 12 Number 3 July- September

Amendment 8: It’s Impact Still Unknown

Webster, Chaires & Partners, P.L.
Email: gchaires@wplawyers.com
3-3-1 Amendment 8, more commonly known as the “three-strikes rule” was implemented by the Florida legislature in Senate Bill 940 after the Florida electorate overwhelmingly approved the proposed amendment to the Florida constitution.  The Bill amended sections of Chapter 458 and 459, Florida Statutes (the Medical Practice Act and Osteopathic Medical Practice Act, respectively).  The Amendment prohibits physicians who have had three or more incidents of medical malpractice, proven by clear and convincing evidence, from being licensed to practice medicine in Florida. Sponsored by Floridians for Patient Protection, a group created by the Academy of Florida Trial Lawyers, the stated intention of the Amendment was to reduce the number of malpractice incidents occurring in Florida. The Florida Medical Association (FMA) strongly opposed the Amendment, asserting that the health care community would lose health care providers in all specialty fields, but more particularly in high risk practices, including neurosurgery, cardiovascular surgery, obstetrics/gynecology and trauma. Consequently, the shift of physicians from Florida to more physician-friendly states would result in limited access to medical care for patients statewide. One critical component of the Amendment is the definition of “repeated medical malpractice.” Medical malpractice has been defined as the failure to practice medicine in accordance with the level of care, skill, and treatment as a similar provider under similar circumstances.  “Repeated medical malpractice” is defined by the Amendment as three or more incidents of medical malpractice found to have been committed by a medical doctor. It includes any similar wrongful act, neglect or default committed in other states or countries which, if committed in Florida, would have been considered medical malpractice. Another critical component of the Amendment is a “strike.”  A strike is defined as a final judgment by a court or agency that has been supported by clear and convincing evidence.  More specifically, a strike occurs if there is:

 1. A final order of an administrative agency following a hearing where the licensee was found to have committed medical malpractice;

 2. A final judgment of a court of law entered against a licensee where the licensee was found to have committed medical malpractice in a civil court action; or

 3. A decision of binding arbitration where the licensee was found to have committed medical malpractice.

 The enabling legislation to the Amendment in SB 940 requires that the Board of Medicine shall not license or continue to license a medical doctor found to have committed repeated medical malpractice, the finding of which must be based on clear and convincing evidence. The provision contained at 456.50(2), Florida Statutes, goes on to state that “in order to rely on an incident of medical malpractice to determine whether a license must be denied or revoked under this section, if the facts supporting the finding of the incident of medical malpractice were determined on a standard less stringent than clear and convincing evidence, the board shall review the record of the case and determine whether the finding would be supported under a standard of clear and convincing evidence.” It appears that the Board is required by the statute to reweigh the evidence contained in the record of the medical malpractice case (that could be thousands of pages), which it is not permitted to do if the case was heard at the Division of Administrative Hearings (DOAH) as part of a licensure disciplinary hearing. In an administrative action where the matter was heard at DOAH, the Administrative Law Judge would issue a Recommended Order for consideration by the Board.  The Board is not permitted to reweigh the evidence and generally must uphold the recommendation of the Administrative Law Judge if the record contains competent and substantial evidence. The last critical component of the legislation discussed in this article is the definition of “clear and convincing evidence.” It has been defined in various court opinions as an intermediate standard of proof, more than “preponderance of the evidence” standard used in most civil cases, and less than the “beyond a reasonable doubt” standard used in criminal cases. Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be precise and explicit and the witnesses must be lacking confusion as to the facts. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established. See Slomowitz v. Walker, 429 So.2d 797 (Fla. 4th DCA 1983). The plain language of Amendment 8 and 456.50(2), Florida Statutes, indicates that the triggering of a strike is the result of some final action, whether it be by a court of law, the Board of Medicine or through arbitration. The final action must determine that the physician is guilty of medical malpractice as that term is defined above. There are ways to avoid a “finding” that the physician engaged in medical malpractice. Legal counsel for physicians in medical negligence cases and Department of Health investigations will have to counsel their clients as to different settlement options in cases so as to avoid a final action or order that asserts the physician was guilty of medical malpractice.  Thus, the legislation may have some of its intended effect, i.e., to encourage settlement of cases or investigations that involve standard of care issues. In considering the above issues, it is not surprising that the Amendment could significantly affect the legal community and prospective medical malpractice plaintiffs. The knowledge that a physician may feel compelled to settle a matter to avoid a strike is much to the favor of the prosecuting party in settlement negotiations. It is anticipated that an aggressive attorney or plaintiff will use the Amendment to his or her advantage, thereby likely further decreasing a chance for a fair and reasonable settlement value.  Frivolous and menial cases may settle for more moderate amounts, leaving physicians and insurance companies with their hands somewhat tied. It is further expected that Amendment 8 may affect the relationship between physicians, attorneys and medical malpractice insurance carriers. This relationship, also known as the “tripartite relationship,” is already regarded as being highly complex, typically given that the attorney represents the insured, with the insurer having the status of a non-client third party payor of the attorney’s fees. See Florida Bar Comment 4-1.7 and Fla. Stat. Ch. 627. A physician may insist upon settling a matter to avoid a potential judgment and thus a strike with the carrier that is providing insurance coverage. The insurance carrier, who of course must pay the settlement, may feel that the case should be vigorously defended.  While that issue is not a new one, the added issue of a “strike” has the potential to complicate the relationship even more. The future of the impact of Amendment 8 is unknown, and may ultimately be difficult to ascertain.  One thing is certain, its impact will further complicate an industry that is already heavily regulated.