Florida recently amended its state constitution to limit attorney fees in medical malpractice cases. The Florida Supreme Court has ruled that attorney fee limits in medical malpractice cases can be waived—as long as lawyers fully inform their clients about the rights they are giving up and plaintiffs show they have done so voluntarily. The Florida Bar Association argued that fee limits interfere with plaintiffs’ right to find counsel of their own choice, and the Court agreed.
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. The measure 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. Florida voters approved the amendment.
The Florida Bar Association 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.
After a hearing last December, the high court instructed the bar to submit proposed wording for a revised rule. In September, several groups appeared before the court, including the Academy of Florida Trial Lawyers, 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.
The proposal submitted by the Florida bar included a carefully worded and detailed waiver form that plaintiff lawyers would use uniformly. The court 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.”
In Colorado, there is no limitation on fees for medical malpractice cases, but damages are severely limited. Caps on damages in Colorado medical malpractice cases have been upheld as enforceable and constitutional. Our Supreme Court had interpreted a previous version of the HCAA limitation on “non-economic” damages to exclude from the primary $250,000.00 cap, damages for impairment and disfigurement. Preston v. Dupont, 35 P.3d 433 (Colo. 2001). However, our very reactionary General Assembly, in cooperation with an anti-consumer/victim executive, amended the HCAA statute to legislatively over-rule Preston.
Effective July 1, 2003, the HCAA $250,000 cap on non-economic damages included damages for physical impairment or disfigurement that a patient could recover within the definition of the capped non-economic damages. As a sop to the poor patients, the General Assembly additionally increased the cap from $250,000.00 to $300,000.00, even though medical inflation and the Consumer Price Index far outstripped this 18% increase given that the cap had remained at $250,000.00 since 1986. Progressive advocates for fairer standards, including injured patients, and well reputed lawyers were laughed out of the committee rooms. See also, Wallbank v. Rothenberg, 74 P.3d 413 (Colo.App. 2003).
The Colorado statute also provides that “the total amount recoverable for all damages for a course of care for all defendants in any civil action for damages in tort brought against a health care professional, as defined in §13-64-202, or a health care institution, as defined in §13-64-202, or as a result of binding arbitration, whether past damages, future damages, or a combination of both, shall not exceed one million dollars…” Clearly a grossly insufficient amount of compensation for many of the most catastrophic medical mistakes.