Dueling amendments pass: large impact expected on med mal cases.

Florida's medical malpractice legal landscape changed dramatically November 2 as competing constitutional amendments pushed by doctors and trial lawyers were approved by voters.

The closest contest was for Amendment 3, which restricts contingency fees lawyers can earn in medical malpractice cases. It passed easily with 63.5 percent of the vote.

Amendment 7, which opens previously confidential adverse incident reports and other records from doctors and health care facilities, passed with better than a 4-1 margin, the largest of any amendment on the ballot. And Amendment 8, which removes the license of any doctor found to have committed malpractice three times, passed with 70.4 percent of the vote. (Vote tallies are unofficial results as of November 3.)

The balloting may only be a preamble for more legal battles over the issue. One lawsuit was filed immediately after the election, and at least one more was promised.

Amendment 3 was pushed by the Florida Medical Association, and opposed by the Academy of Florida Trial Lawyers, which in turn sponsored Amendments 7 and 8. The Florida Bar opposed Amendment 3, but took no position on 7 and 8.

Amendment 3 limits contingency fees in medical malpractice cases to 30 percent of the first $250,000 awarded, not including costs, and to 10 percent above that.

Bar President Kelly Overstreet Johnson said the Board of Governors approved opposing the amendment because it would limit access to the courts for medical malpractice victims.

"I'm very disappointed that it passed. I really don't think the public understands the ramifications of the amendment," she said.

The difficulty, Johnson said, is it can take tens to hundreds of thousands of dollars--and sometimes more--to prepare a complex medical malpractice action, costs that are typically fronted by the lawyer.

"Many attorneys will be unable to take cases," she said. "I don't think you can assume lawyers are going to be willing to take that risk if there is no upside."

The Florida Medical Association, in a post-election statement, did not directly mention its oft-repeated contention that Amendment 3 would cut frivolous lawsuits.

"It is clear the voters in Florida overwhelmingly agreed with their trusted physicians and not the attorneys; it was time to do more to help solve our medical liability crisis," said FMA Executive Vice President Sandra Mortham. "What's more, our citizens recognized that if something did not change, we would continue witnessing more...