Amendment malpractice

It is even clearer that the Florida Constitution was not the place to settle the fight between the state's doctors and lawyers.

Round 1 of the current dispute began in 2003, when the two sides went at it over medical malpractice insurance. After three special sessions, both came away unhappy, but not because the Legislature had struck a good deal that asked something from all sides, including the insurance industry. That fall, the Florida Medical Association vowed to go to the voters, and both sides began raising money.

Result? Three amendments, two from the lawyers and one from the doctors -- aimed, naturally, at each other. Amendment 7 was designed to require disclosure of "adverse incidents" at hospitals. Amendment 8 was designed to lift the license of any doctor after three acts of malpractice. Amendment 3 was designed to limit sharply attorneys' fees in malpractice cases. As it stands, the public that overwhelmingly approved all three amendments will get little from the first -- that's bad -- little from the second -- that's good -- and nothing from the third -- that's also good.

Only Amendment 7 made sense because patients, many of them new to Florida, already have a hard time obtaining information when looking for a doctor or a hospital. The state's Web site, for example, allows doctors to decide what they will disclose. But the bill that the Legislature passed last week to implement Amendment 7 allows a hospital to release information only to patients of that hospital and only if it "involves the same or substantially similar condition, treatment or diagnosis" as that of the patient who is asking. And no records before Nov. 2, when the amendment passed, can be released.

Amendment 8 was problematic because, as written, it actually could have kept bad doctors working because they might settle to avoid a ruling of "malpractice." The Legislature also watered down the intent of that amendment by not counting settlements, by making it harder to define "malpractice" and by giving the Board of Medicine final say. As for Amendment 3, the Legislature wisely did not attempt to write implementing legislation because it's probably unconstitutional to interfere in a contract, and the client can waive the lower fees.

So voters will be unhappy, but the outcome should not be a surprise. The real problem is that the doctors and the lawyers remain unhappy, and the bigger, crucial issues of medical malpractice insurance and access to health care in Florida remain unresolved.