Compromise in Senate bill could lead to litigation limits

TALLAHASSEE — Patients who arrive at a doctor's office could be given one more form to fill out — a waiver for their right to a jury trial if they ever accuse the doctor of botching their care — under compromise legislation passed by a key Senate committee on Thursday.

The provision is one of a series of changes packed into a wide-ranging bill approved by the Senate Judiciary Committee. The bill also ends the long-running war between ophthalmologists and optometrists over whether nonmedical doctors can dispense prescriptions.

By merging the proposals, the compromise, crafted by Sen. Don Gaetz, R-Niceville, and Sen. John Thrasher, R-St. Augustine, is intended to win enough votes for long-sought medical malpractice reforms in the traditionally reluctant Senate. It also gives the politically influential optometrists the prescription powers they have wanted for a decade.

"It seems like a marriage of convenience and good policy,'' said Rep. Matt Gaetz, R-Fort Walton Beach, the son of the senator who is sponsoring the medical malpractice proposal in the House. "It enhances the likelihood that the House will give them every consideration.''

The plan to allow doctors and other health care providers to ask patients to sign agreements allowing future malpractice claims to go to arbitration instead of jury trials was sharply criticized by three lawyers on the committee as unconstitutional.

"Sometimes physicians try to do things that only hurt themselves and this is one of them,'' said Sen. David Simmons, R-Altamonte Springs. "Many of the things here are fundamentally unfair."

But Jeff Scott, lobbyist for the Florida Medical Association, which supports the bill, said, "These provisions are needed, they're warranted and they're fair.''

Sen. Arthenia Joyner, D-Tampa, called it a "blatant infringement on a citizen's constitutional right to access the court."

She predicted that most patients won't read the fine print before they sign away their right to a jury and the legislation "is fraught with danger for the average person."

Alexander Clem, an Orlando attorney and member of the trial lawyer's Florida Justice Association, warned that the waiver to a jury trial also gave a doctor the right to "pencil in" how much he could be responsible for in damages in a lawsuit.

"If you pass this bill with all this stuff on it you are socializing the loss,'' he said. "Who pays that? All of us. The taxpayers."

The bill would also make it harder to prove that doctors are negligent for not performing certain diagnostic tests on patients.

Thrasher said the changes will result in cost-savings to patients. "This is not about doctors and lawyers,'' he said. "This is about what I believe is the largest hidden tax that we pay in the state of Florida and that is in the defense of medicine.''

Before the meeting, the head of the FMA sent out a letter explaining the compromise over eye-care prescriptions to his colleagues that offered a window into how special interest fights are waged in Tallahassee.

In the letter, Dr. Miguel A. Machado, a St. Augustine neurosurgeon, offered a rare and candid observation about the power of campaign cash.

"Strength in the legislative and political arenas is measured by relationships and political resources,'' Machado wrote. "In this case, the optometrists have far more political strength than the ophthalmologists. The optometrists have raised $668,499 for their political action committee during the past year compared to $46,842 by the ophthalmologists."