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Victims of medical malpractice in Florida will have the opportunity to select from experienced and competent malpractice attorneys in order to pursue their claims. The Florida Supreme Court has ruled that the newly passed constitutional “right” to guaranteed net recoveries from settlements or awards may be waived by the victims. The “right” was plainly designed by the Florida Medical Association to discourage competent and experienced attorneys from undertaking representation. Now, victims may waive their rights or not as they determine will be in their best interests.

Victims of medical malpractice in Florida will continue to have the opportunity to select from experienced and competent malpractice attorneys in order to pursue their claims. The Florida Supreme Court has ruled that the newly passed constitutional “right” of guaranteed net recoveries from settlements or awards may be waived by the victims. The “right” was plainly designed by the Florida Medical Association to discourage competent and experienced attorneys from undertaking representation. Now, victims may waive their rights or not as they determine will be in their best interests.

The Supreme Court has directed The Florida Bar to draft and submit to the Court a proposed amendment to the Rules governing the conduct of attorneys along the following lines:

1. An acknowledgement of the provisions of article 1, section 26 (Amendment 3) of the Florida Constitution;

2. An affirmative obligation on the part of an attorney contemplating a contingency fee contract with a potential client to notify any potential client with a medical liability claim of the provisions of article 1, section 26. Such notice provision may include a standard written notice form; and

3. A procedure whereby a medical liability claimant may knowingly and voluntarily waive the rights granted by article 1, section 26. Such a proposed procedure may involve judicial oversight or review of the waiver and may include a standard waiver form or otherwise provide for the protection of the rights of a potential client.

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