Everybody knows the push behind Amendment 3 to severely limit the fees lawyers can charge in Florida in medical malpractice claims was an effort to restrict the rights of victims to seek justice. Only a banana could have believed the medical profession was just doing a good deed for malpractice victims.
The Florida Supreme Court has now done the right thing and ruled clients may waive their rights under the Amendment and approved a process which must be followed. Virtually no competent and experienced medical malpractice attorney could undertake representation in these cases without the waiver. The complexity and costs of the cases simply require the promise of adequate compensation before anyone would agree to fight the battle.
Whether the process is called sidestepping or circumventing the Amendment or an intelligent waiver of a constitutional right is not important. What matters is that victims can now seek damages for injuries or death caused by the negligence of medical providers.
TALLAHASSEE – The state Supreme Court today cleared the way today for attorneys to sidestep a voter-approved cap on attorneys’ fees in medical malpractice cases.
The ruling comes in connection with Amendment 3, which placed strict limits on the contingency fees that lawyers earn from representing people who sue doctors, hospitals and other healthcare providers for malpractice. A group organized by the Florida Medical Association to back the amendment spent $8.5 million to campaign for its passage in 2004. Nearly two-thirds of voters approved the amendment.
But shortly after its passage, lawyers found a way to sidestep the cap: They asked clients to waive their rights under the amendment, allowing the attorneys to collect higher fees. Doctors responded by asking the court to change the ethical rules that all lawyers in Florida must abide by.
Both sides went twice before the state’s high court, which must sign off on rules regulating attorneys, to argue whether or not someone could legally waive their constitutional rights.
On Thursday, the court answered by approving a process that spells out how people can waive their rights to the fee caps. The ruling notes that other constitutional rights can be waived — however the ruling then states that ”we decline to actually determine the legal issue of whether the rights” can be waived, leaving open a possible door for a future lawsuit.