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

Three Strikes Rule: It Has Been Almost Six Years: Is There Any Discernable Impact of its Passage

7-4-1 As many recall, 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 in November 2004. The Bill amended Chapter 458 and 459, Florida Statutes (the Medical Practice Act and Osteopathic Medical Practice Act, respectively). It 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. It has been almost six years since the law was amended and there has been little discernable impact of it at this point. For those not aware, a strike is defined as a final judgment by a court or agency that has been supported by clear and convincing evidence. A strike occurs when and 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.   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 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. The critical determination if a strike exists is whether the Florida Board of Medicine determines that repeated medical malpractice has occurred. The enabling legislation to the Amendment in Senate Bill 940 provides 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 upon clear and convincing evidence. The provision contained at 456.50(2), Florida Statutes, further states 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.”1 “Clear and convincing evidence” 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.  The clear and convincing evidence standard 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 Senate Bill 940 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. However, it would be very unlikely that a court or arbitration panel would make a finding of malpractice by clear and convincing evidence. Such finding has traditionally been the province of the Florida Board of Medicine. It appears that despite the language defining a strike, it really falls upon the Florida Board of Medicine to determine if a strike occurs. So considering malpractice cases in civil courts, how does that happen?   Pursuant to Section 627.912(1) (c), Florida Statutes, all professional liability insurance companies are required to file with the Office of Insurance Regulation (“OIR”) within the Department of Financial Services, notification of any payment in excess of $1.00 if the payment arises from a claim that asserts personal injuries to have been caused by error, omission or negligence in the performance of a physician’s services or based upon a claim professional services that were performed without consent. Similarly, pursuant to Section 456.049, Florida Statutes, any practitioner of medicine is required to report to the OIR any claim or action for damages that asserts personal injuries to have been caused by error, omission or negligence in the performance of a physician’s services or based upon a claim professional services that were performed without consent. When these reports are made by professional liability carriers, they are then reported from the OIR to the Department of Health, which in most cases will initiate what is termed a “closed claim” investigation against the physician licensee. In so doing, it begins the process where there may ultimately be a review by the Board of Medicine of the malpractice action at the clear and convincing evidence standard.   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 must counsel their clients on the risks of how an Administrative Complaint issued by the Department of Health is challenged. Hearings pursuant to Section 120.57(1) and 120.57(2), Florida Statute, will carry an inherent risk of a strike if a physician has been charged with repeated medical malpractice. In each proceeding the Board of Medicine will ultimately issue findings of fact and if those findings provide that medical malpractice occurred by clear and convincing evidence, then a physician will receive a strike.   In a review of Recommended Orders issued by Administrative Law Judges at the Division of Administrative Hearings where hearings pursuant to Section 120.57(1), Florida Statute, are conducted, this author only found three cases in which a physician was found to have committed malpractice and thus received a strike. There is at least one other case in which a physician appeared before the Board of Medicine on a Section 120.57(2) hearing and the Board adopted the findings of fact and conclusions of law of the pending Administrative Complaint, which alleged medical malpractice. Six years have passed since implementation of the “Three-Strikes” law, yet a scant number of cases show its effect.  It is very difficult to determine the impact, if any, of the three strikes amendment on applicants that may have considered Florida as a place to practice medicine as some physicians may simply have not applied for a medical license.   An analysis of the number of physicians actively practicing medicine in the state of Florida supports that there has been little impact of the statute. A review of MQA Annual Reports from 2004-2009 published by the Department of Health are quite interesting and support a conclusion that there has been little impact of the “Three-Strikes Rule.”   2004-2005: Active licenses for M.D.: 38,160 Active licenses for D.O.: 3,345 M.D. in training: 2,730 M.D. initial applications received: 3,059 M.D. licenses issued: 2,804 D.O. initial applications received: 375 D.O. licenses issued: 313   2005-2006: Active licenses for M.D.: 39,016 Active licenses for D.O.: 3,439 M.D. in training: 3,252 M.D. Initial applications received: 2,933 M.D. Licenses issued: 2,656 D.O. initial applications received: 309 D.O. licenses issued: 290   2006-2007: Active licenses for M.D.: 40,065 Active licenses for D.O.: 3,619 M.D. in training: 3,618 D.O. in training: 390 M.D. Initial applications received: 3,098 M.D. Licenses issued: 3,001 D.O. initial applications received: 300 D.O. licenses issued: 275 2007-2008: Active licenses for M.D.: 40,936 Active licenses for D.O.: 3,689 M.D. in training: 3,925 D.O. in training: 453 M.D. Initial applications received: 3,028 M.D. Licenses issued: 2,805 D.O. initial applications received: 303 D.O. licenses issued: 289 2008-2009: Active licenses for M.D.: 41,951 Active licenses for D.O.: 3,886 M.D. in training: 2,984 D.O. in training: 392 M.D. Initial applications received: 2,699 M.D. licenses issued: 2,844 D.O. initial applications received: 321 D.O. licenses issued: 289   The number of licensed physicians has grown each year since the “Three-Strikes Rule” was passed and the number of physicians training in Florida has remained consistent over that period of time. Based upon the foregoing numbers assimilated by the Department of Health, the anticipated impact of a mass exodus of physicians appears to have been perhaps overblown. It is unclear from these numbers whether the amount of specialists have changed and thus, there may be some impact on high-end specialists such as neurosurgeons and obstetric/gynecologists.   The 2008-2009 Board of Medicine Annual Report indicates that from fiscal year 2006-2007 to fiscal year 2008-2009, the amount of Recommended Orders from formal hearings pursuant to ch. 120.57 (1), dropped from 21 to 4. During the same time frame, settlement agreements heard by the Board of Medicine dropped from 265 to 121. One thing that many fail to appreciate is that pursuant to the Board of Medicine’s penalty guidelines and Section 458.331, Florida Statutes; the Board has the authority to revoke a physician’s license based upon one finding of malpractice. While the Board has not traditionally done so, it has always had that authority, even prior to Senate Bill 940. Rule 64B8-8.001, F.A.C., sets forth the range of penalties that the Board of Medicine has in evaluating a penalty for various violations. Pursuant to the penalty guidelines for malpractice under 64B-8.001(2) (t), F.A.C.:   Violaton: (t) Failure to practice medicine in accordance with appropriate level of care, skill and treatment recognized in general law related to the practice of medicine. First Offense: (t) From one (1) year probation to revocation or denial and an administrative fine from $1,000.00 to $10,000.00. Second Offense: (t) from two (2) years probation to revocation or denial and an administrative fine from $5,000.00 to 10,000.00.   Gross Malpractice. From one (1) year suspension followed by three (3) years probation to revocation or denial and an administrative fine from $1,000.00 to 10,000.00, and license shall be subject to reexamination. From suspension or denial to revocation or denial and an administrative fine of $5,000.00 to 10,000.00, and an exhalation or reexamination by a physician evaluation program approved by the Board. Repeated Malpractice as defined in Section 456.50,F.S -Revocation or denial and an administrative fine from $1,000.00 to $10,000.00.     When the amendment was initially passed there was understandably a great deal of concern as to its impact. The penalty of “three strikes and you’re out” assured that if there were three findings that a physician committed malpractice by clear and convincing evidence, that the physician would no longer be eligible to practice medicine in Florida. However, the Board of Medicine had that authority long before the Amendment was passed, which it used sparingly to revoke medical licenses.   Despite the fact that it has now been almost six years since Amendment 8 was passed, no significant impact is apparent. The Board of Medicine continues to regulate the practice of medicine, with fewer disciplinary cases, but with a push for more punitive sanctions.  The future of the impact of the   “Three-Strikes Rule” 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. It underscores the possibility that forthcoming health care overhaul will have a much more significant impact on the citizens of the State of Florida as it relates to access to specialty care, timeliness of medical treatment, and its cost. That is an issue that will be debated for many years to come.   1 Note that the “clear and convincing evidence standard” for repeated malpractice was created by the enabling statute (§456.50 Florida Statutes) passed after the Amended was voted upon. There is no indication in the language of the amendment that the clear and convincing evidence standard should be used. While there has been no constitutional challenge of Amendment 8’s enabling statute one must be mindful that Amendment 7’s enabling statute has been eviscerated by the Florida Supreme Court.  Only time will tell if the Amendment 8 enabling statute suffers the same fate.