Doctors and their medical malpractice insurance carriers in Florida are now benefiting greatly from the $500,000 cap on pain and suffering damages approved by the state legislature in 2003 and the constitutional limit on lawyers' fees ratified in 2004. The 15 insurers who provided coverage for 80 percent of the market in 2005 only had to pay 40.2 percent of premiums to cover losses, which is very favorable compared to other highly populated states. These 15 companies also made more than $800 million in profits and new companies are now entering the state's lucrative med-mal insurance marketplace. Some physicians are now paying less for their coverage and, in December, Jacksonville-based First Professional Insurance Co., the state's largest med-mal insurer, filed for a rate decrease that will reduce premiums an average of eight percent.

Yet, even as their insurance rates drop as a result of the changes and increased competition, some doctors and hospitals are beginning to require that their patients sign arbitration agreements that waive their right to a jury trial. In addition, the Florida Medical Association is encouraging its members to have their patients sign a waiver agreeing to limit non-economic damages in the event of a malpractice suit to $250,000. If the patients do not sign these agreements, they are typically told by the provider to go elsewhere for their medical care.

These waivers represent misguided attempts by the healthcare industry in Florida to counter the waiver that the state Supreme Court approved for attorneys to enable clients to waive their rights to the limits on contingency fees under Amendment 3. The Florida Bar waiver makes it possible for our firm and other highly experienced med-mal attorneys to take on difficult cases which require significant ancillary costs for expert witness fees, travel, court reporters, research and related technology. Malpractice claims are typically very expensive to pursue, and a recent study by the Bureau of Justice Statistics indicates that two-thirds of these claims in Florida from 2000 to 2004 resulted in a payout under $250,000. The study also reveals that only 5.5 percent of all of the claims in the state during the same timeframe resulted in a payout of more than $1 million, and the average payout in death cases was $216,000.

Furthermore, Amendment 3 waivers operate in the client's interest in that the lawyer and the client have a unity of interest: maximum recovery of damages for the represented parties. The medical industry waiver operates to benefit only the healthcare provider by requiring the patient to give up their right to receive their full measure of damages.

Experienced attorneys cannot take on even some of the most meritorious cases because of the significant costs that are involved without the Amendment 3 waiver. Clients understand that working with a highly experienced attorney is of the utmost importance. They are quick to find that the best and most knowledgeable attorneys who they consult will not take on their significant cases without the waiver, which was approved by the Supreme Court after it heard and considered all of the arguments from the healthcare industry and the bar representatives.

The medical industry waivers, on the other hand, have not yet been challenged in the Florida circuit and appellate courts, and we believe that they will eventually be overturned due to their various flaws and potential abuses. Unlike the lawyers' waiver, the medical industry waivers provide added protections for doctors at the expense of the patients. They are not an absolute necessity for physicians to have access to affordable med-mal insurance, particularly when declining rates and increasing competition are driving rates even lower.

If you or anyone you know is asked to sign either the arbitration waiver or the one limiting damages to $250,000, we suggest that you make your displeasure with the waiver known to the provider and begin searching for another doctor. We understand that this can be difficult and troublesome for some, but it is essential if you want to maintain the peace of mind that you will be able to secure the very best possible legal representation in the event you are injured or impaired as a result of the medical care.