Fight for Survival

Fight for Survival

Bradenton attorney Richard M. Shapiro, immediate past president of the Academy of Florida Trial Lawyers, says the state medical association is wrong to blame malpractice cases for rising premiums.

By Sean Roth

Real Estate Editor

Richard M. Shapiro looks forward to getting back to the practice of law. During Shapiro's past two years as president of the Academy of Florida Trial Lawyers, the Bradenton malpractice attorney's courthouse time was cut thin.

As much as he loves his profession, Shapiro, of the Shapiro Law Group, expects to change careers if voters approve the Florida Medical Association (FMA) constitutional amendment capping attorneys' fees.

Shapiro, 53, has had a center seat for the high-stakes game of chicken being played by the medical association and Florida's lawyers over rising medical-malpractice insurance premiums and tort reform. In response to the FMA's proposed amendment, the 4,000-member lawyers' group, the largest voluntary organization of lawyers in Florida, is pushing three of its own constitutional amendments to limit doctors' fees and require public disclosure of adverse medical incidents, as well as the license removal of doctors with three or more incidents of medical malpractice.

The AFTL has accumulated a war chest of about $11 million to fight for the amendments. As of publication, the Florida Supreme Court was reviewing all four proposed amendments for inclusion on the November ballot.

It's no surprise, given Shapiro's past position and profession, that he is a staunch opponent of the FMA's recent moves toward controlling medical malpractice tort.

"The average doctor in the field doesn't want this," Shapiro says. "This is coming from the top. The agenda of the Florida Medical Association and most doctors is completely different. (The association) is out of lockstep with everyday physicians. They are completely in the right in being angry about the price of their premiums. Attorneys are just an attractive target; they are a target that you can see and identify. It is much harder to deal with the numerous things that caused this problem, which have absolutely nothing to do with jury verdicts."

While Shapiro has been at the forefront of the issue politically, he is also a key figure in the debate because of his family and professional background.

Shapiro grew up in a family of doctors. He has uncles and a brother who are family physicians. His father, Robert Shapiro, was an internationally renowned neuroradiologist and chairman of Yale University's teaching hospital. He studied pre-med at the University of South Florida before he changed his major to law during his senior year.

"I thought this was just what all the males in the family did," Shapiro says. "When I got into my senior year I had taken science courses all the way down the line. But deep down I knew I did not want to be a doctor."

He credits Richard Nixon, Vietnam and the '60s with influencing his career change.

"I have an inherent distrust of government," he says. "I felt as a young man growing up in the '60s that the war in Vietnam was just really senseless. Looking back I can certainly see that it was dignified for the soldiers serving their nation, but I still believe it was unwarranted and unnecessary. I believed the best use of my own resources was in protecting government from itself as a public defender. It was a labor of love."

Shapiro says his father was more than supportive.

"He believed it (law) was a noble calling," he says. And his father, he adds, understood the role medical malpractice lawsuits play in mitigating medical errors, especially since he had been involved in a few himself.

"Dad was performing a myelogram (a neuroradiological procedure in which dye is injected into a patient's spinal canal and then monitored by X-rays) on a patient, (but) during the course of the procedure the patient died," he says. " It was very difficult to place the needle on an obese patient, and the needle had been misplaced. The insurance company came to my father and said they weren't going to settle with the family. They said since (my father) had helped invent the procedure certainly no one could ever fault him for his procedure. He told them they had to settle and that if they were to take the case to trial he would admit openly that the person's death was his fault. They settled. That was just the type of man he was. He also testified against other physicians he knew."

Following graduation from Southwestern University College of Law in Los Angeles in 1980, Shapiro went to work for John Feegel in Tampa. Feegel, who was a doctor and lawyer with a doctorate in public health, was a forensic pathologist involved in the Wayne Williams murder trial in Atlanta. Shapiro considered him a mentor.

Shapiro later worked in the Manatee County Public Defender's Office as an assistant public defender. After a year of trying felony cases - Shapiro estimates he worked on 15 - for little pay, just $17,000 a year at the time, he hung up a shingle. With help from a part-time legal secretary he knew from the public defender's office, Shapiro opened a small office across from the courthouse in 1986.

"The two of us went off to battle together," Shapiro says. "I wound up remodeling the office with a friend because I didn't have any money. (The office) also had the same phone number as a defunct phosphate mining company. So we got a lot of wrong numbers that first year."

Shapiro took every case he thought he could win, but eventually he gravitated toward medical malpractice cases.

"I had a working knowledge of medicine so that made it perfect," he says. "In fact I had been a research assistant for dad at Yale. I'm not sure whether I found the cases or the cases found me."

Shapiro's first medical malpractice case came early, when Shapiro represented an engineer in a claim against a dentist.

"The dentist had inadvertently cut a nerve in (my client's) mouth that might have eventually left him unable to speak - although at the time of my representation he could still speak, although slowly," Shapiro says. "That case was settled. Most of our cases are settled."

Shapiro now employs nine, including two other attorneys. The firm handles malpractice cases from all over the state.

He has handled hundreds of cases in his 20-plus years as an attorney, including the much-publicized Jessica Roud case.

In March 1994, 11-year-old Jessica Roud fell while playing with other children. An MRI later revealed she had a brain tumor. Dr. Louis Solomon of All Children's Hospital St. Petersburg operated on her twice in two days. Shapiro's lawsuit on behalf of the Rouds alleged it was an error in the second surgery that left the child blind and paralyzed. Jessica Roud died in 1999.

In 2000, a Pinellas County jury found the surgeon negligent and awarded the family $11 million - a verdict that attracted media attention. The verdict is one of the 10 largest in the Tampa Bay area. A judge later reduced the award to $8 million and the verdict was appealed to the 2nd District Court of Appeal.

As of July 7, the family had received only $500,000, primarily to pay off liens for Jessica Roud's private health insurance. Shapiro has been reimbursed for his costs, but he has not received a fee. He estimates he spent about $300,000 on the case, including the payment of expert witnesses.

"The doctor declared bankruptcy," Shapiro says, "Now it is the trustee of the bankruptcy suing the insurance company (for bad faith). I really believe that the media thinks that the plaintiffs get to collect a check after the case. It is not as exciting to know that the winning party waits years to collect that award."

In some cases, the plaintiffs and attorneys never get a dollar, he says.

The Roud case, and others like it, helped reinforce Shapiro's adversarial relationship with insurance companies.

"With insurance companies, the name of the game is delay," Shapiro says. "If they can avoid having to pay quickly they may make it back in investment income. But that means that some clients that need the money have to wait."

It is anecdotal evidence such as the initial $11 million Roud verdict, that Shapiro says the insurance companies use as negative propaganda. He argues that winning a jury verdict is like winning the lottery is just not true.

"There is data to support a nexus between the amount of the award and extent of injury," Shapiro says. "The people who are quadriplegics or have lost limbs get the larger verdicts. One question we ask is, 'If this is truly a lottery than what is the price for the ticket?'

"I think in some sense insurance companies are partially to blame for some of this propaganda," he says. "They have learned that if they can pollute the public's impression, they can directly impact jury verdicts. There is a lot of empirical data to show that the cost of lawsuits - all costs from the judicial system - amount to about a penny on the health-care premium dollar. But still there has been double-digit inflation in health-care premiums. In a large part it is (the insurance companies') failure to have prepared in advance for the cyclical marketplace. When their investments were performing they never cared about the cost of premiums. They just fought to get the premium dollars in the door without regard to risk. Any economic scholar could have told them that the balloon was going to burst."

Asked what he would do if the FMA's constitutional amendment is successful, Shapiro responded, "I think I would probably leave the profession. I would probably teach. But I pray it could never happen - that the public would never be willing to give up their rights to civil justice. I believe that this is a pendulum that society will become conservative. And when it swings too far one way, it will swing back. It seems to be popular today for people to believe that everyone should just be responsible for themselves. I believe as a nation we can't resist the call to help. If it sounds like I'm an optimist; I guess I am."

Make no mistake, Shapiro says, "This is survival for us. There is no secret to that. (The FMA) proposed this purportedly to make sure that injured victims get the lion's share of their judgments. But in reality this prevents us from being able to handle contingency cases. The wealthy will always be protected, this just attacks the fees that are paid on contingency."

There is an unfair perception, Shapiro adds, that there is a group of ambulance chasers bringing frivolous lawsuits.

"I have yet to meet a lawyer who takes frivolous lawsuits," says Shapiro, adding, "Litigation is extremely costly. Those attorneys must like living in the red. Most jury trials are decided in favor of the physician; the deck is already stacked so heavily in favor of the defense. Trial attorneys, like me, have to be extremely picky. I only take one of 100 cases. If it is a coin toss (whether or not there was negligence) I always go with the doctor. To do otherwise is just stupid."

Shapiro also argues there are a number of checks and balances built into the system that already cap damages. In 1991, the Florida Legislature capped economic damages based on fault.

"All a doctor has to do is admit there was a mistake and, under existing laws, their (non-economic) damages (from arbitration) are capped at $250,000," Shapiro says. "At trial, they can admit fault, and it is capped at $350,000. What we want now is for (the doctors) to police themselves. Florida is at the bottom of the list in terms of disciplinary action for doctors. We have a physician addicted to prescription drugs operating on children's brains, and he is still practicing medicine. Has our society lost our sense of compassion for the egregiously harmed?"

Shapiro understands why it is difficult for doctors to admit mistakes. "They are indeed trying to save lives," he says. "If they happen to fall short of the mark they can't understand why they should be responsible for their errors. It is like the case of someone who is fumbling for something on the floor and runs a stoplight and causes harm. But physicians are used to being placed on a pedestal."

Shapiro's interaction with the FMA officials unfortunately has been negative, he says.

"The FMA leadership has refused to sit down with us," Shapiro says. "We had suggested a compromise that the lawyer community of the state would start a non-profit malpractice insurance company. Clearly, they are very bright people, but this obviously touched an emotion."

Last month, Shapiro passed the presidency of the AFTL to Alexander Clem, an attorney with Morgan, Colling & Gilbert, Orlando. Clem's primary goal this year is to defeat the medical association's proposed constitutional amendment.

As for Shapiro, he's getting back to the practice of law.

"I just want to try cases now," he says. "It's as simple as that. I do cases all over the state ... a good deal of it in Tampa and a little in my backyard. I love this community."

Amendments

FMA Amendments

BALLOT --------

TITLE: The Medical Liability Claimant's Compensation Amendment

BALLOT SUMMARY: Proposes to amend the Florida Constitution to provide that an injured claimant who enters into a contingency fee agreement with an attorney in a claim for medical liability is entitled to no less than 70% of the first $250,000 in all damages received by the claimant, and 90% of damages in excess of $250,000, exclusive of reasonable and customary costs and regardless of the number of defendants. This amendment is intended to be self-executing.

AFTL Amendments