Med Mal News

Florida Doctors React to Attorney-Fee Limit Ruling

The Florida Supreme Court issued a decision in September holding that lawyers may ask potential plaintiff clients to waive the attorney fee limits imposed by a 2004 voter-approved state constitutional amendment limiting attorney contingent fees in medical malpractice cases. In re Amendment To the Rules Regulating the Florida Bar-Rule 4-1.5(f)(4), '- So.2d ”, 2006 WL 2771252 (Fla., 9/28/06). Imme-diately following the decision's publication, the Florida Medical Association reacted by asking all Florida physicians to obtain a signed agreement from patients before rendering treatment, limiting noneconomic damages in case of injury to $250,000. Said Sandra Mortham, the Florida Medical Associa-tion's Executive Vice President, in a release, 'The medical community has explored every possible route to bringing the medical malpractice crisis under control. At this point, the patient waiver is the best viable solution to rise above the gluttonous nature of the state's trial lawyers.'

The amendment to the State's Constitution states: 'In any medical liability claim involving a contingency fee, the claimant is entitled to receive no less than 70% of the first $250,000.00 in all damages received by the claimant, exclusive of reasonable and customary costs, whether received by judgment, settlement, or otherwise, and regardless of the number of defendants. The claimant is entitled to 90% of all damages in excess of $250,000.00, exclusive of reasonable and customary costs and regardless of the number of defendants.' Art. I, ' 26, Fla. Const. The State Supreme Court's ruling allows an attorney who opts not to represent a client under the terms set forth in Art. I, ' 26 to inform the client, both orally and in writing, of the terms under which he or she would accept the case, making sure to inform the client of his or her right to seek an attorney who will take on the representation in accordance with the limits imposed by Art. I, ' 26. The client who does consent to waive the fee limitation must do so in writing, and under oath. Under certain circumstances, judicial approval of the waiver agreement will be required.

Court of Appeals Holds Louisiana's Med-Mal Cap Unconstitutional

Louisiana's Third Circuit Court of Appeals, in Arrington v. ER Physicians Group, '- So.2d ”, 2006 WL 2773657 (La.App. 3 Cir., 9/27/06), has ruled that Louisiana's medical malpractice damages cap is unconstitutional.

The plaintiffs in Arrington had settled their malpractice claims with the physician and the Louisiana Patient's Compensation Fund. They sought, however, to have the limitation of liability provision of the Medical Mal-practice Act declared unconstitutional in order that they could recover damages without limitation from the medical center defendant. The 14th Judicial District Court, Parish of Calcasieu, ruled the cap on damages, codified at La.R.S. 40:1299.41, et seq., was constitutional. Plaintiffs appealed. The Court of Appeal certified the question to the Supreme Court, which denied certification. On remand, the Court of Appeal held that the $500,000 cap on damages for malpractice enacted in the 1970s ' which in today's dollars would be an amount between $1,562,500 and $1,707,242 ' violated the state constitution's 'adequate remedy' provision. In addition to this rationale for dispensing with the cap, the court noted that the Louisiana Supreme Court's 2002 holding in Conner v. Stelly, 807 So.2d 827 ' which now forces plaintiffs to take their case to a Medical Review Panel to determine liability and then file a claim in the courts, rather than the old system under which the courts interpreted the Act to impose liability once the qualified health care provider had settled ' eroded the one benefit plaintiffs had obtained with the legislation when they gave up their right to seek higher awards. 'These new requirements ' were not contemplated in the Act which was part of the 'quid pro quo' given to the plaintiffs for the diminution in value of their claims,' said the appellate court. Thus, the court continued, the Act's current application had 'eroded [plaintiffs'] rights to the point where they have none.'

Oregon Insurance Subsidy Abuse?

An Oregon state program that gives financial incentives to doctors to encourage them to serve in rural areas has allegedly been enriching some practitioners who practice primarily in urban areas. (Rojas-Burke, The Oregonian, 9/21/06.) The program, which gives subsidies to doctors to cover 40%-80% of their medical malpractice premiums, has been in place for 3 years and is up for renewal in 2007. The Oregonian reports that of the approximate 1100 doctors eligible to use the program, less than 200 primarily work in underserved areas of the state. Only those working in the largest cities are ineligible under the very loose strictures of the eligibility requirement.

Emergency Power Needs a Concern for JCAHO

The Joint Commission on Accredi-tation of Healthcare Organizations (JCAHO) has issued a Sentinel Event Alert to draw attention to medical facilities' need to have effective emergency back-up power systems in place. The Alert was prompted by events following floods in Houston in 2001, the 2003 Northeastern U.S. blackout and Hurricane Katrina, among others.

JCAHO's specific recommendations are that facilities: 1) study the emergency equipment needed during a power outage and make sure that everything necessary is on hand; 2) inventory emergency power systems and the loads they serve; 3) train those who will operate the equipment and test their competence; 4) be sure enough fuel is available to power emergency power sources; 5) ensure management and clinical leaders know how long the facility can go without an external power source, and know which areas of the facility are served by the emergency power source; 6) work on contingency plans; and 7) test emergency generators at least once every 3 years, for at least four continuous hours.

Nursing Home Operators Enter Pleas

Mable Mangano and Salvador Mangano Sr. pleaded not guilty on Sept. 20 to charges of negligent homicide and cruelty to the infirm stemming from the 2005 Hurricane Katrina-related deaths of 35 people in the nursing home they ran in St. Bernard Parish, LA. The Manganos are accused of failing to evacuate the patients in contravention of the facility's evacuation plan and of St. Bernard Parish's mandatory evacuation order. The victims drowned in the floods following the hurricane-caused levee breaks in New Orleans.

The Manganos, in turn, have filed suit against several government entities, claiming government failure to maintain safe levees caused the deaths, not the Manganos' decision to leave their frail patients in place.

Florida Doctors React to Attorney-Fee Limit Ruling

The Florida Supreme Court issued a decision in September holding that lawyers may ask potential plaintiff clients to waive the attorney fee limits imposed by a 2004 voter-approved state constitutional amendment limiting attorney contingent fees in medical malpractice cases. In re Amendment To the Rules Regulating the Florida Bar-Rule 4-1.5(f)(4), '- So.2d ”, 2006 WL 2771252 (Fla., 9/28/06). Imme-diately following the decision's publication, the Florida Medical Association reacted by asking all Florida physicians to obtain a signed agreement from patients before rendering treatment, limiting noneconomic damages in case of injury to $250,000. Said Sandra Mortham, the Florida Medical Associa-tion's Executive Vice President, in a release, 'The medical community has explored every possible route to bringing the medical malpractice crisis under control. At this point, the patient waiver is the best viable solution to rise above the gluttonous nature of the state's trial lawyers.'

The amendment to the State's Constitution states: 'In any medical liability claim involving a contingency fee, the claimant is entitled to receive no less than 70% of the first $250,000.00 in all damages received by the claimant, exclusive of reasonable and customary costs, whether received by judgment, settlement, or otherwise, and regardless of the number of defendants. The claimant is entitled to 90% of all damages in excess of $250,000.00, exclusive of reasonable and customary costs and regardless of the number of defendants.' Art. I, ' 26, Fla. Const. The State Supreme Court's ruling allows an attorney who opts not to represent a client under the terms set forth in Art. I, ' 26 to inform the client, both orally and in writing, of the terms under which he or she would accept the case, making sure to inform the client of his or her right to seek an attorney who will take on the representation in accordance with the limits imposed by Art. I, ' 26. The client who does consent to waive the fee limitation must do so in writing, and under oath. Under certain circumstances, judicial approval of the waiver agreement will be required.

Court of Appeals Holds Louisiana's Med-Mal Cap Unconstitutional

Louisiana's Third Circuit Court of Appeals, in Arrington v. ER Physicians Group, '- So.2d ”, 2006 WL 2773657 (La.App. 3 Cir., 9/27/06), has ruled that Louisiana's medical malpractice damages cap is unconstitutional.

The plaintiffs in Arrington had settled their malpractice claims with the physician and the Louisiana Patient's Compensation Fund. They sought, however, to have the limitation of liability provision of the Medical Mal-practice Act declared unconstitutional in order that they could recover damages without limitation from the medical center defendant. The 14th Judicial District Court, Parish of Calcasieu, ruled the cap on damages, codified at La.R.S. 40:1299.41, et seq., was constitutional. Plaintiffs appealed. The Court of Appeal certified the question to the Supreme Court, which denied certification. On remand, the Court of Appeal held that the $500,000 cap on damages for malpractice enacted in the 1970s ' which in today's dollars would be an amount between $1,562,500 and $1,707,242 ' violated the state constitution's 'adequate remedy' provision. In addition to this rationale for dispensing with the cap, the court noted that the Louisiana Supreme Court's 2002 holding in Conner v. Stelly , 807 So.2d 827 ' which now forces plaintiffs to take their case to a Medical Review Panel to determine liability and then file a claim in the courts, rather than the old system under which the courts interpreted the Act to impose liability once the qualified health care provider had settled ' eroded the one benefit plaintiffs had obtained with the legislation when they gave up their right to seek higher awards. 'These new requirements ' were not contemplated in the Act which was part of the 'quid pro quo' given to the plaintiffs for the diminution in value of their claims,' said the appellate court. Thus, the court continued, the Act's current application had 'eroded [plaintiffs'] rights to the point where they have none.'

Oregon Insurance Subsidy Abuse?

An Oregon state program that gives financial incentives to doctors to encourage them to serve in rural areas has allegedly been enriching some practitioners who practice primarily in urban areas. (Rojas-Burke, The Oregonian, 9/21/06.) The program, which gives subsidies to doctors to cover 40%-80% of their medical malpractice premiums, has been in place for 3 years and is up for renewal in 2007. The Oregonian reports that of the approximate 1100 doctors eligible to use the program, less than 200 primarily work in underserved areas of the state. Only those working in the largest cities are ineligible under the very loose strictures of the eligibility requirement.

Emergency Power Needs a Concern for JCAHO

The Joint Commission on Accredi-tation of Healthcare Organizations (JCAHO) has issued a Sentinel Event Alert to draw attention to medical facilities' need to have effective emergency back-up power systems in place. The Alert was prompted by events following floods in Houston in 2001, the 2003 Northeastern U.S. blackout and Hurricane Katrina, among others.

JCAHO's specific recommendations are that facilities: 1) study the emergency equipment needed during a power outage and make sure that everything necessary is on hand; 2) inventory emergency power systems and the loads they serve; 3) train those who will operate the equipment and test their competence; 4) be sure enough fuel is available to power emergency power sources; 5) ensure management and clinical leaders know how long the facility can go without an external power source, and know which areas of the facility are served by the emergency power source; 6) work on contingency plans; and 7) test emergency generators at least once every 3 years, for at least four continuous hours.