Lawyer vs. Lawyer

Lawyer vs. Lawyer

By David R. Corder

Associate Editor

About a week ago, a group of the state's top trial lawyers made a political statement. The Florida leaders of the American Board of Trial Advocates voted unanimously to oppose a proposal that would prohibit medical malpractice victims from waiving their right to a state constitutional cap on attorneys' fees.

The vote carries a strong message, considering an equal number of plaintiff and defense lawyers belong to this organization that allows membership only by invitation. It also signals the latest battle in the war between doctors and lawyers over medical malpractice reform in Florida. Only now the battle pits lawyer against lawyer.

It seems this movement to outlaw the waivers riles just about every trial lawyer in the state. St. Petersburg attorney Tom Masterson, chair of the Florida Bar Trial Lawyers Section, opposes it. So does Bradenton trial attorney Richard Shapiro, past president of the Florida Academy of Trial Lawyers. Florida Bar President Kelly Overstreet Johnson agrees with them.

"My personal feeling is you should be able to waive the caps that were put into place just as you would waive your right to counsel," she says.

Masterson expresses a much harsher view. He says it's incredulous that Holland & Knight attorney Stephen Grimes, a respected constitutional expert, would advance such a proposal on behalf of the Florida Medical Association (FMA).

"What it appears to me - as Tom Masterson and not the chair of the trial lawyers section - a very high profile, highly compensated firm that caters to the elite wants to make it unethical for lawyers to represent victims of medical malpractice," he says. "Many of them are victims of the same clients represented by Grimes and Holland & Knight.

"To me, it's an embarrassment," he adds. "I would like to know what Justice Grimes is charging the FMA and compare that to what medical malpractice victims are charged."

At the heart of this new round of acrimony lies the medical association's economic and political will. Political posturing over the past several years has produced medical malpractice reform in Florida. The group has relied heavily on the advice of influential Tallahassee insiders such as Grimes, a former state Supreme Court justice, and Jacksonville attorney John Thrasher, the former state House speaker.

Two years ago, the medical association's lobbyists persuaded the state Legislature to enact a cap on noneconomic medical malpractice damages. Last year, the group convinced voters to approve the hotly contested constitutional amendment that entitles a medical malpractice victim to 70% of the first $250,000 in damages and 90% of all settlement money over that.

Soon after voters enacted the amendment, some lawyers found a loophole. They reasoned that nothing in the law prevents the medical malpractice victim from waiving the constitutional right to the cap. That strategy incensed the medical association.

Earlier this year, the association made a bid through the Legislature to outlaw the waiver. It convinced state Sen. Stephen Wise, R-Jacksonville, an educator, and Rep. Michael Grant, R-Port Charlotte, a small-business owner, to file companion bills to that effect. Neither bill made it out of committee.

The medical association pursued another option. It asked the state Supreme Court to outlaw the waiver by amending the rules that regulate Florida's 76,164 attorneys.

Earlier this month, Grimes gave the Supreme Court petition to the Florida Bar. This is a procedure-driven petition process open to any bar member, committee or section.

To advance the petition, however, Grimes needed at least 50 licensed attorneys to join him. He convinced 55 to sign it. Attorneys such as Thrasher signed it. So did Tampa attorney Mary Ann Stiles, an influential lobbyist who represents the Associated Industries of Florida business lobby.

Of the 55, about 30% of the co-petitioners are Holland & Knight attorneys. Most practice out of the firm's Tallahassee office. Another 20% are affiliated with Pennington Moore Wilkinson Bell & Dunbar PA, a Tallahassee firm with an influential governmental law practice.

The petition lists four lawyers affiliated with FPIC Insurance Group Inc., a Jacksonville-based provider of professional liability insurance to doctors. Shares of the publicly traded insurer have been on an upward climb since the first quarter of 2003. Much of that upward trend comes amid strong earnings - a nearly 70% increase in net income to $28 million for the year ended Dec. 31.

Grimes wouldn't talk about the petition, though he acknowledges the medical association hired him to work on last year's constitutional amendment and to file the proposed rules change.

"I don't feel comfortable talking about the arguments, because it will be decided by the Supreme Court," he says. "I don't like trying cases in the press."

The petition clearly states his view.

"Some lawyers have suggested that because the amendment is a constitutional provision, the client may waive its requirement and agree to higher contingent fees than permitted by the amendment," Grimes writes. "Such a suggestion would have a lawyer negotiating with the client in order to have the client agree to give up his constitutional right in order that the lawyer may receive a higher fee. To permit such a practice would not only put the lawyer in an unethical position but fly in the face of the constitutional mandate overwhelmingly approved by the voters of Florida."

Masterson contends Grimes crafted a petition that goes even farther than the intent of last year's constitutional amendment.

"If you look at the amendment it's not worded in any way to limit attorneys' fees," he says. "It's worded to limit net recovery. The FMA and Steve Grimes are trying to distort what the actual amendment says and make it more restrictive than the wording of the amendment."

That's why trial lawyer advocates has taken such a strong position against the petition, says Miami trial lawyer Herman Russomanno, the group's current president and a past Florida Bar president. He says the petition urges the court to adopt a constitutional infringement.

"We believe that it is an infringement of state and federal constitutional rights to interfere with any individual's existing right under the current Florida Bar rules to contract with a lawyer of her or his choice and waive the existing provision of Rule 4-1.5(f)(4)(B)," he says. "We further believe the effort of the proposed rule change sought by the Grimes petition would unfairly impair the right of access to the judicial system to victims of medical malpractice. Therefore, we oppose the rule and we urge the disciplinary committee of the Florida Bar, the board of governors of the Florida Bar as well as the Florida Supreme Court to deny the Grimes petition and reject this proposed rules change."

Because of procedural rules, Grimes must wait until late June to officially file the petition with the court. It's possible the bar's board of governors will discuss the conflict during a meeting scheduled the week of May 31, Johnson says.

"I'm not even sure the board will take an official position," she says. "We just haven't had an opportunity to discuss it."

If Grimes succeeds, Shapiro predicts a further erosion of victim access to the courts. "It will have a chilling effect, finding well-qualified lawyers who can handle genuine cases of medical malpractice," he says. "It seems like every year there are more and more impediments to keeping the courthouse doors open."

Tampa trial lawyer Henry Valenzuela has a more dire prediction. He suggests most medical malpractice lawyers won't be able to afford the investment it takes to litigate a case without fair compensation.

"If the Supreme Court were to embody the amendment into the Florida rules of professional responsibility for lawyers, it would devastate the practice of medical malpractice law in the state of Florida," he says. "It would practically wipe out an individual's ability to make a medical malpractice claim. The reason is 99.99% of the victims cannot afford to prosecute these cases.

"If the petition is accepted, lawyers will not do these cases," he adds. "They're too hard and too expensive. The lawyers who do this kind of work are not going to take on the litigation tasks and the six-figure investment costs without a waiver. They're simply not going to do that."