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Fla. medical initiatives, cont'd

As we reported Jul. 20, Florida doctors have successfully qualified for the ballot an initiative which would limit lawyers' fees on malpractice cases, and plaintiff's lawyers have struck back by qualifying three "revenge initiatives" aimed at making life more difficult for the docs in various ways. Medical blogger Blogborygmi (Jul. 19) engages in a bit of snarkiness regarding one of the lawyer-sponsored initiatives, which would direct that a doctor's license to practice medicine be revoked if he or she were found to have committed three instances of malpractice:

...you can't deny they're doing the public a big favor here, by taking negligent doctors off the wards. Removing physicians with three suits against them is not even in the lawyers' best interests -- they're selflessly depriving themselves of future clients! But if you liked defensive medicine before, wait until you see how many diagnostic tests are ordered by a doc with two strikes.

Maybe the trial lawyers heard that, in many specialties, the average doctor is sued two or three times over the course of a career. So if voters pass the new ballot initiative, all surviving docs will be above average (or, fresh out of residency). ...

At least now it's the in voters' hands. And things always work out swell when Floridians go to the polls!

We would add that, across many states and specialties, the average doctor would be doing very well to be sued only two or three times over a career. In Pennsylvania (see Overlawyered, Jul. 16) a survey of doctors in high-risk specialties found 47 percent had been sued at least once over the previous three years.

It might be added that any "three-strikes" scheme faces the problem of whether or not to deem it a "strike" when a physician and his insurer pay to settle a claim before a jury's verdict. If yes, then a doctor's incentive to agree to a settlement is drastically undercut and a large volume of now-settled cases will instead be held out for trial, with drastic consequences for many of the players involved. If no, then the "three-strikes" feature will not be very effective since few doctors lose as many as three trials and those who fear that they will do so can simply make their settlement offers more attractive.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.