Doctors who have paid out numerous Florida medical malpractice claims continue to practice, despite a state statute approved by voters more than a decade ago intended to strip such physicians of their medical licenses. That’s according to a recent investigation into state insurance records by a South Florida television news team, NBC-5 in West Palm Beach.
Our own medical malpractice attorneys in West Palm Beach have encountered physicians in medical negligence claims who had previously lost or settled a number of prior lawsuits asserting they failed to abide the applicable standard of care in the course of medicinal practice, resulting in serious harm to patients.
The reporters discovered hundreds of still-practicing physicians who had paid out in excess of $460 million for Florida medical malpractice lawsuits stemming from the deaths of nearly 1,400 patients over the last 10 years.
This in itself is pretty stunning. However, it’s particularly striking in light of a 2004 Florida constitutional amendment approved by voters called the “three strikes rule.”
Origins of Accountability of Florida’s Medical Malpractice Three Strikes Rule
The news team’s findings aren’t entirely new. Back in 2010, the State University System of Florida published an analysis to determine, six years after the passage of the “Three Strikes Rule,” Senate Bill 940, enacted as Amendment 8 to Chapter 458 and 459 of Florida Statutes, whether the measure had any discernible impact. The conclusion: It did not.
The idea behind the law was solid: A doctor with three or more incidents of Florida medical malpractice – proven by clear and convincing evidence – would be barred from practicing medicine in the state.
A strike is characterized as a final judgment of medical malpractice by an agency or court, supported by the clear-and-convincing evidence standard, and there has to be one of the following:
- A final order by an administrative agency after a hearing wherein the doctor was found to have committed medical malpractice.
- A final order by a judge/jury in a court of law against the doctor in a civil court action.
- A binding arbitration decision wherein the doctor was found to have committed medical malpractice.
South Florida medical malpractice lawyers can also explain that these cases differ somewhat from typical wrongful death or personal injury cases involving general negligence.
Medical malpractice isn’t just the absence of ordinary care when there was a duty to act otherwise. It occurs when someone who practices medicine failed to do so according to the standard as what another practitioner of similar education, skill and treatment would provide. This special standard is what necessitates expert witness testimony and often makes medical malpractice cases tougher to win than general negligence claims.
As it pertains to the Three Strikes rule, our West Palm Beach medical malpractice attorneys at Halberg & Fogg PLLC are aware, the problem primarily has to do with the evidence standard.
Florida’s Medical Malpractice Three Strikes “Loophole”
The statute indicates repeated medical malpractice occurs when the doctor commits any similar wrongful act, default or neglect – not only in Florida, but in other states or even other countries – that would be considered medical malpractice if it had occurred in Florida.
The clear and convincing evidence standard is an intermediate one, meaning it’s higher than what’s used in most civil cases, but lesser than what’s used in criminal cases.
“Clear and convincing evidence” requires evidence must be:
- Precise, explicit, lacking in confusion
- Of weight that produces a firm belief or conviction without hesitancy of its truth
Generally speaking, it’s unlikely that either a court or arbitration panel is going to make a finding of medical malpractice by a clear-and-convincing evidence standard because that isn’t the standard used for civil cases. That means the determination of a “strike” is probably going to fall on the Florida Board of Medicine.
Cases get forwarded to the board typically by professional liability carriers who are supposed to report it to the Office of Insurance Regulation who then report it to the Department of Health for a “closed claim” (which can take years) and THAT is what triggers a review from the Board of Medicine.
However, there are a lot of times when cases are settled without a “finding” of medical malpractice. As of 2010 – six years after the constitutional amendment passed, the State University System of Florida found just THREE cases wherein a physician was found to have committed medical malpractice by the Board of Medicine under the clear and convincing evidence standard and thus receiving a strike.
This is part of the reason many medical malpractice lawsuits in Florida end in settlement – because doctors want to avoid a strike against their license.
The West Palm Beach reporters compiled a list of at least 120 doctors with three or more medical malpractice claims filed over the previous decade, of which only two had their medical licenses revoked under the rule.
In review of the news team’s recent findings, the chairman of the state medical board suggested the legislature might consider giving the board greater power to investigate and review such claims, rather than requiring so much bureaucracy before it ever gets to them.
Contact the South Florida medical malpractice attorneys at Halberg & Fogg PLLC by calling toll-free at 1-877-425-2374. Serving West Palm Beach, Miami, Tampa, Orlando and Fort Myers/ Naples. There is no fee unless you win.
Hundreds of Florida doctors with multiple malpractice payouts still seeing patients, May 22, 2019, NBC-5, West Palm Beach
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Florida Medical Malpractice Wrongful Death Law Challenged by Family, April 27, 2019, West Palm Beach Medical Malpractice Lawyer Blog