Page 65 - Impact: Collected Essays on Expanding Access to Justice

At the same time,
there would be no limit on the number of lawyers the defense could employ or the amount of fees those lawyers could charge . That creates a potential imbalance in favor of the defense . Thus, even where medical malpractice victims could find representation, the law would say to them, “you are not allowed to use a lawyer whose market valuation is equivalent to those who might represent the defendant .”35
There is no question that the tort reform movement has been skillful in getting everyday Americans to support this kind of imbalance while undermining their own constitutional rights of access to the civil justice system . This is precisely what was accomplished in Florida in 2004 with the passage of Amendment 3, a voter initiative . This amendment to the Florida State Constitution was sponsored by the state’s medical lobbies, and it imposes caps on contingency fees in medical malpractice cases . The amendment as passed limits contingency fees to 30 percent of the first $250,000 awarded and 10 percent of any amounts above $250,000 .36
What is remarkable and dangerous about Amendment 3 is how the medical lobbies won popular support for it . Specifically, the Amendment was couched in misleading language suggesting that the law’s purpose was to allow injured patients to keep more of their recovery . In reality, its aim and impact were no different than any other contingency fee limit law: preventing injured patients from obtaining competent counsel .
Specifically, the constitutional provision reads as follows:
(a) Article I, Section 26 is created to read “Claimant’s right to fair compensation .” 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 . This provision is self-executing and does not require implementing legislation .37
When the Florida Supreme Court allowed this Amendment on the ballot, Justice R . Fred Lewis dissented, recognizing it for what it was – an attempt to mislead voters . He wrote that the Amendment:
attempt[s] to “hide the ball” from the voters and disguise a very clear end...[with] false promises of benefits when [it] really...restrict[s] existing rights... Clearly, the proposed amendment as written portrays that it will provide protection for citizens by ensuring that they will actually personally receive a deceptive amount of all money determined as damages in any medical liability action . However, the amendment actually has the singular and only purpose of impeding a citizen’s access to the courts and that citizen’s right and ability to secure representation for a redress of injuries . Its purpose is to restrict a citizen’s right to retain counsel of his or her choice on terms chosen by the citizen and selected counsel and to thereby negatively impact the right of Florida citizens to seek redress for injuries sustained by medical malpractice . This is truly a wolf in sheep’s clothing .38
35 Id. at 29.
36 fla. consT. art. I, § 26(a).
37 Id.
38 Task force on conTingenT fees, supra note 24, at 37–38 (citing In re: Advisory Opinion to the Attorney General Re: The Medical Liability Claimant’s Compensation Amendment, 880 So.2d 675, 683 (Fla. 2004) (Lewis, J., dissenting)).
Specific Areas for Reform: Tort Liability
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