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Rick Shapiro
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Is the Tide Turning?

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BY JAMES C. LEWIS, HSCLA ATTORNEY

During the last five years, we have seen a dramatic surge in the passage of legislation that is intended to deprive victims of medical mistakes by the health care community from receiving full and fair consideration. These efforts have included capping victims’ rights to non-economic damages which flow from catastrophic injuries to limiting attorney’s fees in cases involving claims of carelessness against health care providers. Many states have enacted $350,000.00 caps on a victim’s entitlement to compensatory damages and Florida enacted legislation severely limiting the right of attorneys who represent victims of medical mistakes to be fairly paid for their services.
This tide of attacks on victims’ rights may be turning in the opposite direction.

In Florida, attorneys affected by the recent legislation limiting their fees developed a method to circumvent this legislation by having prospective clients sign a waiver of their rights and entitlements under the legislation which would otherwise limit their attorney’s fees. By doing this, victims were able to continue hiring the best medical negligence lawyers in Florida who, as a result of this waiver, were no longer discouraged from handling cases like this. This practice of using a waiver was attacked by the Florida Medical Association and in late January, 2006, the Florida Supreme Court denied the request of the Florida Medical Association and ruled that the use of these types of waivers was perfectly appropriate.
In another development, voters in the State of Washington rejected a measure that would have severely curtailed a patient’s ability to obtain compensation for injuries caused by medical mistakes. The proposal would have established a $350,000.00 cap on non-economic damages in medical negligence cases. It would also have allowed medical providers to require patients to waive their right to a jury trial and submit any disputes to arbitration. This initiative was soundly defeated for the second year in a row.
Likewise, in 2004, Oregon voters defeated a ballot measure that would have amended the state constitution to limit non-economic damages in medical malpractice cases to $500,000.00. Similarly, Wyoming voters rejected a measure that would have allowed the state’s legislature to cap non-economic damages in medical malpractice cases.
If these states’ recent actions are any guide, it does appear that the momentum of those medical groups in this country who are seeking to limit the rights of victims in medical negligence cases is dwindling. It is certainly our hope that this trend continues.