Posted by Bill Sandweg on 01 July 2019.
By 2004, Florida voters had had enough. They passed a constitutional amendment to stop bad doctors from continuing to malpractice. The idea was a simple one: If there there three instances of malpractice, a doctor would not be allowed to practice medicine in Florida any longer. Three strikes and they were out. Turns out it was not so simple after all but no one will accept responsibility for the failure of the amendment to do what voters wanted.
The constitutional amendment was put into the law books in the part of the Florida statutes dealing with the practice of medicine. It required either a verdict or judgment or final ruling in an administrative proceeding that a doctor had committed medical malpractice. It further required that the malpractice be proved by clear and convincing evidence. The clear and convincing requirement was not in the amendment passed by the voters. It was a gift to the doctors from the Florida legislature when it passed the amendment into law. It made it much more difficult to use a finding of malpractice to get rid of a bad doctor. Multiple studies and investigations have shown that little has changed since 2004 and that bad doctors continue to practice without fear of discipline in Florida.
One of the problems to rooting out bad doctors is that the law requires there be a final verdict, judgment or administrative decision. The bad doctors of Florida get around this by settling the claims against them. When a case is settled, it never goes to trial and there can be no verdict or judgment or final administrative decision. No verdict, no judgment, no administrative decision, no strike against the doctor.
The Florida legislature has done other things to frustrate the will of the people. It has passed a number of laws making it more difficult for patients to bring malpractice suits in the first place. If there is no suit, there can be no verdict or judgment.
When there is a verdict or judgment or administrative decision, they are rarely based on a finding of clear and convincing evidence. Most malpractice claims go to a jury or to the judicial fact finder on a preponderance of the evidence test. If the evidence shows that the doctor more likely than not committed malpractice, the verdict is returned in favor of the plaintiff. It is the province of the Florida Medical Board to determine if the malpractice verdict or judgment or administrative decision was supported by clear and convincing evidence.
To no one’s surprise, the Florida Medical Board has rarely found clear and convincing evidence that a doctor committed medical malpractice. Many studies since the passage of the constitutional amendment have found few doctors affected by its terms. Here is a study by the Board of Governors of the State University System finding little to no impact six years after passage of the amendment.
A recent investigation by Florida news organizations found that hundreds of Florida doctors had made multiple malpractice payouts and were still practicing. They found at least 120 doctors with three or more malpractice suits in the last 10 years but only two had had their licenses revoked under the “three strikes” statute. Astonishingly, they found one back surgeon who had paid out sixteen malpractice claims since 2000, six of which involved the death of the patient, and yet this man was still practicing. Not only is he still practicing, the Florida Board of Medicine lists his license as “clear/active.”
The following quotation from the Chairman of the Florida Board of Medicine shows why it is failing the citizens of Florida so spectacularly, “The concerns that the public has are perhaps more related to the policing of medicine and that is not the Board of Medicine’s responsibility.” If the Board of Medicine does not believe it is responsible for policing the quality of medicine practiced by the doctors it supervises and licenses, it is no wonder doctors can malpractice with impunity in Florida.