Florida's "3 strikes" -- lawyers back it against doctors, but would they like it applied to themselves?

I try not to get into the automatic bashing of "trial lawyers" (which is really a code phrase for plaintiff's lawyers, as trials necessarily require lawyers on both sides), but a new Florida law seems to me to be a really bad idea, prompted by plaintiff's lawyers seeking extra leverage against doctors:

TALLAHASSEE, Fla. - Florida voters this month approved a three-strikes law unlike any other state's — a measure aimed not at killers and thieves but at doctors who foul up.

The newly approved amendment to the Florida Constitution would automatically revoke the medical license of any doctor hit with three malpractice judgments. The law is backed by doctors' foremost antagonists — lawyers — and the ramifications could be huge.

True, the amendment speaks of three judgments, not three lawsuits, presumably a relatively high threshold, considering that most civil lawsuits are settled before trial.  Still, this provides a little extra weight on the plaintiff's side.  It's also likely to have significant impact on medical insurance, as an expected outcome will be more med mal lawsuits.  That in turn may drive more doctors out of the state.

What I find particularly disturbing about this amendment is the support by lawyers.  How would the Florida lawyers who backed this amendment feel about another amendment, one that automatically revokes the law licenses of any attorney hit with three legal malpractice lawsuits judgments?  Or any criminal defense attorney hit with three instances of ineffective assistance of counsel resulting in the release or new trial of a convicted defendant?  Presumably, they wouldn't be so eager to support that kind of three strike law. . . .

Medical malpractice is a tough issue.  Obviously, I don't think that doctors should be immunized from their mistakes; but on the other hand, we have to be sensitive to the fact that there may be unfounded lawsuits, whose cost is ultimately imposed on all of us.  A heavy-handed solution such as Florida's will probably do little to address the mistakes and will probably have significant unintended consequences.

Comments

[FlaLawGuy]

While I sympathise with the doctors and voted against this amendment (albeit for other reasons), the doctors supported a separate initiative to reduce attorneys' fees in med mal suits. The doctor-supported amendment passed with flying colors and is an equally bad idea. To borrow a hypothetical: How would doctors who supported this amendment feel if the Florida Constitution limited their right to contract or make a living? While lawyers won't take their ball and go home, I suspect that we'll see less advocacy for the poor because of this amendment. (Aside - Where are all these doctors going anyway? Every state warns that doctors are leaving their state because of rising malpractice costs, yet this is implausible. Where are they going?)

The doctors also lost on another amendment, this one focusing on a patient's right to see their doctor's "adverse medical incidents". The plaintiffs' bar funded and promoted this amendment as well.

To recap: Lawyers 2, Doctors 1, Citizens ?.

[Tung Yin]

Thanks for the info about the other amendments. It sounds like the fee-cap is also a bad idea.

[Ron]

Unfortunately we live in an age still dominated by moralistic concepts of the middle ages. I oppose 3 strikes for doctors, lawyers, accountants, engineers, stockbrokers, baseball players, and yes criminals. Each case should be judged on its merits and Professional associations should be the ones who make the judgment not legislatures. Oh yeah, the criminals, well an experienced trial judge is probably the one to judge whether or not to throw away the key.

[Federalist No. 84]

How would the Florida lawyers who backed this amendment feel about another amendment, one that automatically revokes the law licenses of any attorney hit with three legal malpractice lawsuits? Or any criminal defense attorney hit with three instances of ineffective assistance of counsel resulting in the release or new trial of a convicted defendant?

Let's compare apples to apples. Three lawsuits is not three judgments. Anyhow, a lawyer found liable thrice for legal malpractice would likely be disbarred or suspended for a long time, since there would be substantial overlap between the neglient handling of legal affairs and a violation of ethical duties.

Second, any lawyer whom a judge, applying Strickland, founds rendered IAC should spend a couple of years in prison (to appreciate how his or her decisions affect people) with his Wharton's (to learn to render proper legal services). BTW, when is the last time you read an IAC case? I read the slip opinions daily, and no recent case comes to my mind.

Also, most first-class criminal defense lawyers would love to see lawyers who bumble criminal cases - and in the process have potentially innocent people thrown into jail and also create bad case law - prevented from taking further cases. So, while B-lawyers may like to have the floor set at C or D-levels, A-lawyers want a higher floor. Should we let the crappy lawyers set the standards?

Third, should doctors who botched three-people's operations really be practicing medicine? How many sponges do you need to leave inside somebody before the state licensing board does its job, namely, to ensure public safety through the licensing process.

[Federalist No. 84]

Professional associations should be the ones who make the judgment not legislatures

This is also known as self-policing, and it is generally ineffective.

States presumably license professionals in order to protect the public. Since law is complicated and the failure to abide by complex procedures can lead to life, liberty, or property, we don't want people who can't meet minimum standards rendering legal advice. Thus, it's absolutely appropriate for the legislature to take reasonable measures to ensure that the public is protected from incompetent professionals, including all of those you list.

[Tung Yin]

No. 84, thanks for spotting the error on lawsuits vs. judgments. I meant it to be the latter and simply made a mistake, since corrected.

As for IAC, truth to be told, I haven't read too many successful IAC claims. What I have seen, however, are actual affidavits in which the defense attorney at trial cheerfully admits to being ineffective -- i.e., falling on the sword. An honorable intention, no doubt, but one that I think should be limited to the instances where the attorney really believes that he/she was ineffective, as opposed to just taking one for the client.

[Crank]

Yeah, I agree that this is just a hammer for settlements. I'd bet the plaintiffs' lawyers would scream bloody murder if a settlement counted as a strike, and especially if a settlement above a specified dollar amount counted as a strike, which it would if the idea was actually to punish malpractice rather than coerce settlements. A few other thoughts:

1. Personally, I always use "plaintiffs' bar" or "plaintiffs' lawyers." No need to smear other segments of the bar.

2. FlaLawGuy asks "How would doctors . . . feel if the Florida Constitution limited their right to contract or make a living?" Um, the compensation of doctors is directly or indirectly limited by law in all sorts of intrusive ways, especially with regard to the growing segment of the population covered by Medicare, Medicaid, etc. Believe me, we lawyers are lucky not to live under some of the restrictions on fees that doctors have.

3. I've actually seen attorneys basically try to lay a foundation for an ineffective assistance appeal by pleading illness, lack of resources, etc. Trial-level criminal defense lawyers are often in on the whole thing.

[Mike]

Personally, I always use "plaintiffs' bar" or "plaintiffs' lawyers." No need to smear other segments of the bar.

You are right. Lawyers who represent large corporations to earn a living (or to obtain wealth) are per se noble. Lawyers who represent injured people to obtain wealth are per se scummy. Thus, Enron's lawyers are noble, and the securities lawyers suing Enron, ignoble.

[T]he compensation of doctors is directly or indirectly limited by law in all sorts of intrusive ways, especially with regard to the growing segment of the population covered by Medicare, Medicaid, etc.

Are doctors required by law to treat patients who pay using Medicare, etc.? I honestly don't know, but if the doctors are not required to treat them, then their salaries are only indirectly limited. That's disanalogous to direct and inescapable caps on attorneys' fees.

I've actually seen attorneys basically try to lay a foundation for an [IAC] appeal.

At least their intentions are noble, namely, to keep somoene they believe factually innocent (or whom they believe received an unconstitutional trial) out of prison. You're going to have a really hard time smearing criminal defense lawyers using this line of argument. (Again, I'm not saying it's right. Such conduct would violate ethical duties to the court. But it's hard to make a compelling case that lawyers who say they were incompetent in order to keep a guy out of prison is a bad person. I imagine most of the general public would find such conduct admirable.)

[Tung Yin]

But it's hard to make a compelling case that lawyers who say they were incompetent in order to keep a guy out of prison is a bad person. I imagine most of the general public would find such conduct admirable.

I tend to doubt that the public would think this admirable, as the public seems to be quite law and order, lock 'em up and shoot 'em.

[Mike]

I tend to doubt that the public would think this admirable, as the public seems to be quite law and order, lock 'em up and shoot 'em.

Sadly, yes.

But a the lawyer might say, "General public, we know there are innocent people who are convicted, we've seen them leave death row. But we know that there aren't very man.

"Unfortunately, I represented an innocent man, and I failed. Because of me, someone who is not guilty will go to prison.

"Should I just let that happen? Should I do nothing while Johnny here is raped in prison? Or should I take the blame? I think I should take the blame, because as you know, innocent clients are so rare. And when one is convicted, it has to be someone's fault. Sadly, I am the one responsible. It was my fauilt.