Florida has staggered towards reform in the last few years under Governor Jeb Bush, bush GOP candidate Charlie Crist’s running mate, Jeff Kottkamp, is a trial lawyer, reform opponent, and plaintiff in a ludicrous suit blaming a hospital construction contractor for medical complications he had following heart surgery. (John Kennedy, “GOP candidate breaks rank on tort reform”, Sun-Sentinel, Oct. 5) (via Childs). Earlier coverage: Sep. 18 and links therein.
Elsewhere in Florida, the Florida Supreme Court has essentially undone a 2004 reform voters passed in a referendum (Nov. 3, Mar. 1: it will allow attorneys to avoid the effect of a constitutional amendment capping medical malpractice attorneys’ fees, so long as their clients sign a waiver saying they’re willing to pay more. (Aaron Deslatte, “Court lets lawyers bypass lawsuit cap”, Tallahassee Democrat, Sep. 29). I actually applaud this step to the free market, but just wish doctors had the same rights to get their patients to sign waivers. Apparently courts and consumer advocates are willing to trust only lawyers with the freedom of contract or speech.
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“Apparently courts and consumer advocates are willing to trust only lawyers with the freedom of contract or speech.”
Forgive me for being dense, but I clicked through the “speech” link and I still don’t understand why you suggest that courts and consumer advocates “trust only lawyers” with freedom of speech.
Also, could both the attorneys and (potentially) doctors waivers be considered coerced? I wonder if the client/patient would not be in a position to bargain depending on when they were asked to sign the waiver.
As the link notes, Public Citizen generally demands more advertising regulation, but recognizes the problems with excessive regulation only when it comes to attorneys.
Over time, I have come to agree that a free market solution offers the best chance for a fix that is fair to all parties. Permitting waivers of one’s rights under the Amendment, or for that matter the right to sue beyond certain limits, may well be the best way to achieve an appropriate and principled balance of rights among all parties. There is probably more of a power imbalance with respect to the second form of waiver, but that could be addressed by legislation affording a minimal baseline right to sue where legitimate harm has occurred.
From what I understand the Amendment 3 cap of $750k for pain and suffering is not affected just the amount/cut the lawyers get from the settlement/judgement.