News Flash: Doctors are Above the Law

To the Florida legislature, doctors are, and should be, above the law.  They have their own set of statutes.  They are the most protected and insulated group of citizens in our state.  They can practice medicine without liability insurance; they are entitled to special immunities, damage caps, pre suit protections, shortened statutes of limitations, expert witness certifications, expert witness disciplinary actions, and expert witness requirements.

Over the past 30 years, Florida has passed statute after statute designed to stack the deck in their favor when it comes to our justice system.  There is more than a thumb on the scale of justice.  The system is rigged.

This year there is more.  This week, the Florida legislature is considering a bill that increases the patient's burden of proof from "greater weight of the evidence" (the standard in every civil action in Florida) to "clear and convincing evidence."   This would put medical malpractice actions in a class by themselves.  What's more, the bill would allow physicians and hospitals to escape the jury system altogether in favor of a private arbitration panel with private rules including severe damage caps of the health care provider's choice.

None of this changes the fact that medical malpractice is a scourge in our community.  Ninety-eight thousand people a year die in hospitals due to medical error.  Thousands and thousands more experience life changing injuries due to medical neglect.  Only a handful of these cases ever make it to a lawyer, and a smaller number still make it to the courthouse.  And due to the legislation described above, an even smaller number result in compensation for the victims.

Doctors today control the legislature.  There will be more and more restrictive legislation until medical malpractice cases are eliminated from the system.  Who will speak for Florida's patients?

Are the above statutes really necessary?  And are they the right answer?  When you peel it all away, at its essence, the problem is one of three things: (a) Our jury system cannot be trusted because our citizens are incapable of doing justice after listening to evidence.  Therefore, because we cannot trust our citizen juries, we have to stack the deck to prevent our own citizens from destroying everything.  In essence, this means we do not trust juries, or democracy.  (Ironically, our juries are the same people who vote for the legislators.)  So, we have to come up with a system where the power elite change the rules and create their own system; (b) Medical malpractice defense lawyers are incapable of winning their cases before juries.  Due to their incompetence as compared to the plaintiffs' lawyers, defense lawyers are losing their cases left and right, and we have to step in with laws that equal the playing field; and/or (c) There is a lot of medical malpractice out there; our physicians and our hospitals do a poor job policing themselves, and as a result, we have a death and injury rate that is causing great harm to many people.  If airlines had the same negligent injury rate as hospitals, no one would ever step on an airplane.  Think about it this way, only 10% of doctors were in the top 10% of their medical school class, but all who graduate are called "doctor."  Once they are out of school and in the community practicing medicine, what public grading system exists to weed out the competent physicians from those who lack skills, lack ability, or who are otherwise impaired?  But if this item, c, is correct, then stacking the deck in favor of doctors in our justice system is the wrong approach, and we need to focus more on preventing medical negligence.  We need to make the consequences of medical negligence more onerous, not less.

The data supports item c, above.  By many national studies, over 70% of medical malpractice cases tried to juries results in defense verdicts.  Based on the statistics, juries favor the health care providers and do not need any more help from the legislature to find for doctors and hospitals.  Likewise, defense lawyers seem to be doing a pretty good job.  The problem is medical malpractice itself.  In the last thirty years, what has the Florida legislature done to limit or eliminate negligent medical practice?

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