Supreme Court of Florida
ADVISORY OPINION TO THE ATTORNEY GENERAL RE: THE
MEDICAL LIABILITY CLAIMANT'S COMPENSATION AMENDMENT
[July 15, 2004]
The Attorney General has requested this Court to review a proposed
amendment to the Florida Constitution that would limit the contingency fee
agreement between injured claimants and their attorneys in medical liability cases.
We have jurisdiction. See art. IV, § 10; art V, § 3(b)(10), Fla. Const. For the
reasons explained below, we approve the amendment and the ballot title and
summary for placement on the ballot.
THE PROPOSED AMENDMENT AND BALLOT SUMMARY
The ballot title for the proposed amendment is "The Medical Liability
Claimant's Compensation Amendment." The summary for the proposed
Proposes to amend the State Constitution to provide that an injured
claimant who enters into a contingency fee agreement with an attorney
in a claim for medical liability is entitled to no less than 70% of the first
$250,000.00 in all damages received by the claimant, and 90% of
damages in excess of $250,000.00, exclusive of reasonable and
customary costs and regardless of the number of defendants. This
amendment is intended to be self-executing.
The full text of the proposed amendment reads as follows:
Article 1, Section 26 is created to read "Claimant's right to fair
In any medical liability claim involving a contingency fee, the claimant
is entitled to receive no less than 70% of the first $250,000.00 in all
damages received by the claimant, exclusive of reasonable and
customary costs, whether received by judgment, settlement, or
otherwise, and regardless of the number of defendants. The claimant
is entitled to 90% of all damages in excess of $250,000.00, exclusive
of reasonable and customary costs and regardless of the number of
defendants. This provision is self-executing and does not require
This Amendment shall take effect on the day following approval
by the voters.
STANDARD AND SCOPE OF REVIEW
In Advisory Opinion to the Attorney General re Amendment to Bar
Government from Treating People Differently Based on Race in Public Education,
778 So. 2d 888 (Fla. 2000), this Court summarized its standard of review in
initiative petition cases:
The Court’s inquiry, when determining the validity of initiative
petitions, is limited to two legal issues: whether the petition satisfies the
single-subject requirement of article XI, section 3, Florida
Constitution, and whether the ballot titles and summaries are printed in
clear and unambiguous language pursuant to section 101.161, Florida
Statutes (1999). In order for the Court to invalidate a proposed
amendment, the record must show that the proposal is clearly and
conclusively defective on either ground. In determining the propriety
of the initiative petitions, the Court does not review the merits of the
Id. at 890-91 (citations omitted).
Article XI, section 3 of the Florida Constitution provides in pertinent part
that proposed amendments based on citizen initiative petitions "shall embrace but
one subject and matter directly connected therewith." This Court has held that the
single-subject requirement serves the following purposes: (1) it prevents
“logrolling,” a practice that combines separate issues into a single proposal to
secure passage of an unpopular issue; and (2) it “prevent[s] a single constitutional
amendment from substantially altering or performing the functions of multiple
aspects of government.” Advisory Opinion to the Attorney Gen. re Florida
Transp. Initiative for Statewide High Speed Monorail, Fixed Guideway or Magnetic
Levitation Sys., 769 So. 2d 367, 369 (Fla. 2000). A proposed amendment must
manifest a "logical and natural oneness of purpose" in order to satisfy the
single-subject requirement. Fine v. Firestone, 448 So. 2d 984, 990 (Fla. 1984).
This determination requires the Court to consider whether the proposed
amendment affects separate functions of government, as well as how it affects
other provisions of the constitution. See In re Advisory Opinion to the Attorney
Gen.--Restricts Laws Related to Discrimination, 632 So. 2d 1018, 1020 (Fla. 1994).
The amendment’s opponents assert that the proposed amendment would
have a "precipitous" and "cataclysmic" effect on multiple branches of state
government. The opponents argue that the amendment therefore improperly affects
separate functions of government and portions of the Florida Constitution.
Specifically, the opponents allege that the amendment's ambiguous wording will
impact the judiciary's involvement in regulating attorneys and the fees they charge.
While we find the proposed amendment at bar to be extremely brief, we also
find its language to be straightforward as to who it affects or who is involved in its
implementation. See Advisory Opinion to the Attorney Gen. re Right of Citizens to
Choose Health Care Providers, 705 So. 2d 563, 565-66 (Fla. 1998) ("[I]t is
imperative that an initiative identify the provisions of the constitution substantially
affected by the proposed amendment in order for the public to fully comprehend
the contemplated changes and to ensure that the initiative's effect on other unnamed
provisions is not left unresolved and open to various interpretations."). We agree
that the amendment does relate to the judicial branch because at the very least, the
amendment would functionally override or interfere with the Rules of Professional
Conduct as they relate to fee contracts between attorneys and their clients. See R.
Regulating Fla. Bar 4-1.5. However, beyond the aforementioned effect, the
amendment does not substantially alter or perform the functions of multiple
branches of government or the constitution. Further, to expand our consideration
to the merits of the amendment would go beyond this Court's scope in giving
proposed amendment advisory opinions. See In re Advisory Opinion to Attorney
General ex rel. Authorizes Miami Dade And Broward County Voters To Approve
Slot Machines In Parimutuel Facilities, 29 Fla. L. Weekly S233, S233 (Fla. May 13,
2004) ("[T]he Court does not review the merits or the wisdom of the proposed
We likewise find no merit in the arguments that the amendment should be
stricken from the ballot on the basis that it violates the single-subject requirement
because the Judiciary and the Legislature would be burdened with having to
interpret and define the amendment's terms. The proposed amendment has a
limited scope because it involves contractual fee agreements between attorneys and
clients, which do not inherently involve the executive or legislative branches.
Although the proposed amendment logically relates to the judicial branch and
could possibly result in some collateral ramifications for the other two branches,
the proposal will not substantially alter or perform the functions of those branches.
"[T]he possibility that an amendment might interact with other parts of the Florida
Constitution is not sufficient reason to invalidate the proposed amendment."
Advisory Opinion to the Attorney Gen. -- Fee on Everglades Sugar Prod., 681 So.
2d 1124, 1128 (Fla. 1996) (quoting Advisory Opinion to the Attorney Gen. re
Limited Casinos, 644 So. 2d 71, 74 (Fla. 1994)). Likewise, "[a] proposal that
affects several branches of government will not automatically fail." Advisory
Opinion to Atty. Gen. re Fish & Wildlife Conservation Comm'n, 705 So. 2d 1351,
1353-54 (Fla. 1998). Rather, "it is when a proposal substantially alters or performs
the functions of multiple branches that it violates the single-subject test." Id. at
1354. See also Advisory Opinion To Atty. Gen. re Right to Treatment and
Rehabilitation, 818 So. 2d 491, 496 (Fla. 2002) ("[T]he proposed amendment may
'affect' several branches of government but it does not substantially 'alter' or
'perform' the functions of those branches.").
The opponents also argue that the amendment impermissibly affects portions
of the Florida Constitution, specifically article I, sections 2 and 10. See Art. I, §
10, Fla. Const. ("No bill of attainder, ex post facto law or law impairing the
obligation of contracts shall be passed."). However, we are not persuaded by the
argument that the amendment affects portions of the Florida Constitution
prohibiting the impairment of citizens' contract rights because it does not propose
to transcend similar limitations on attorney-client fee arrangements that are currently
in place. See R. Regulating Fla. Bar 4-1.5. As previously discussed, the proposed
amendment could impact the relevant Rules of Professional Conduct, but it does
not appear to otherwise have a wide-reaching impact on other constitutional
Thus, we conclude that the amendment, as proposed, does not violate the
REVIEW OF BALLOT TITLE AND SUMMARY
Section 101.161(1) of the Florida Statutes governs the requirements for
ballot titles and summaries and provides, in relevant part:
Whenever a constitutional amendment or other public measure
is submitted to the vote of the people, the substance of such
amendment or other public measure shall be printed in clear and
unambiguous language on the ballot . . . .
§ 101.161(1), Fla. Stat. (2003). Thus, the statute requires that the ballot title and
summary “state in clear and unambiguous language the chief purpose of the
measure.” Advisory Opinion to the Attorney Gen.--Limited Political Terms in
Certain Elective Offices, 592 So. 2d 225, 228 (Fla. 1991); accord Right of Citizens
to Choose Health Care Providers, 705 So. 2d at 566. Above all, the title and
summary must be accurate and informative. See Advisory Opinion to the Attorney
Gen. re Term Limits Pledge, 718 So. 2d 798, 803 (Fla. 1998). These requirements
make certain that the “electorate is advised of the true meaning, and ramifications,
of an amendment.” Advisory Opinion to the Attorney Gen. re Tax Limitation, 644
So. 2d 486, 490 (Fla. 1994) (quoting Askew v. Firestone, 421 So. 2d 151, 156 (Fla.
This Court has concluded that the purpose of ballot title and summary
statute was "to provide fair notice of the content of the proposed amendment so
that the voter will not be misled as to its purpose, and can cast an intelligent and
informed ballot." Term Limits Pledge, 718 So. 2d at 803 (quoting Right of Citizens
to Choose Health Care Providers, 705 So. 2d at 566). In sum, it is this Court’s
“responsibility . . . to determine whether the language of the title and summary, as
written, misleads the public.” Right of Citizens to Choose Health Care Providers,
705 So. 2d at 566. "When the summary of a proposed amendment does not
accurately describe the scope of the text of the amendment, it fails in its purpose
and must be stricken." Term Limits Pledge, 718 So. 2d at 804.
In Right of Citizens to Choose Health Care Providers, this Court struck an
amendment from the ballot because there were discrepancies between the
amendment and the summary that were “material and misleading.” 705 So. 2d at
566. The Court described such ambiguity as being a “divergence in terminology”
and found that it caused the amendment to be “fatally defective.” Id. However, in
the proposed amendment before us, we do not find material or misleading
discrepancies between the summary and the amendment. In fact, the summary in
this amendment comes very close to reiterating the briefly worded amendment.
We also note that it is not necessary for the title and summary to explain
every detail or ramification of the proposed amendment. See Advisory Opinion to
the Attorney Gen. re Prohibiting Public Funding of Political Candidates'
Campaigns, 693 So. 2d 972, 975 (Fla. 1997). Even the terms "claim for medical
liability" and "medical liability claim" do not represent a discrepancy between the
amendment and summary because those terms are used consistently between the
summary and the amendment. Although the opponents argue that the efficacy of
the amendment is at issue because of the vague "medical liability" term, the issue as
to the precise meaning of this term is better left to subsequent litigation, should the
amendment pass. Under the scope of our review, we find the wording of the title
and summary sufficient to communicate the chief purpose of the measure. Thus,
we conclude that the ballot summary explains the "chief purpose" of the proposed
amendment and meets the statutory requirements of section 101.161(1), Florida
For the reasons stated, we hold that the initiative petition and proposed ballot
title and summary for "The Medical Liability Claimant's Compensation
Amendment" meet the legal requirements of article XI, section 3 of the Florida
Constitution, and section 101.161(1), Florida Statutes (2003). We therefore
approve the amendment for placement on the ballot. We note, however, that no
other issue is addressed here and this opinion should not be construed as
expressing either favor for or opposition to the proposed amendment.
It is so ordered.
PARIENTE, C.J., and WELLS, QUINCE, CANTERO, and BELL, JJ., concur.
PARIENTE, C.J., concurs with an opinion, in which QUINCE, J., concurs.
LEWIS, J., dissents with an opinion, in which ANSTEAD, J., concurs.
NO MOTION FOR REHEARING WILL BE ALLOWED.
PARIENTE, C.J., concurring.
Although I agree with much of what Justice Lewis says in his dissenting
opinion as to the practical effect of this proposed amendment, I conclude that these
concerns are beyond the scope of our current review. The chief purpose of an
amendment, which must be conveyed in a ballot summary, is distinct from its
potential effect or the motivations of the proponents. As I stated in my concurring
opinion in Advisory Opinion to the Attorney General re Public Protection From
Repeated Medical Malpractice, No. SC04-778, slip op. at 16-17 (Fla. July 15,
2004), "our focus in assessing whether a ballot summary conveys the true meaning
and ramifications of the amendment has been whether the summary misleads voters
into concluding that the amendment would provide greater citizen protection than
current law, when in fact it would provide less protection than the Constitution or
law currently provided."
The summary in this case does not mislead voters into concluding that they
would receive more legal protection than under current law. It says nothing
whatsoever concerning greater or lesser protection. It merely guarantees them a
particular percentage of their recovery in a medical liability claim. Thus, it does not
purport to create a right when in fact it restricts that right, as in cases in which we
have disapproved ballot summaries. See, e.g., Advisory Opinion to the Atty. Gen.
re Right of Citizens to Choose Health Care Providers, 705 So. 2d 563, 566 (Fla.
1998) ("We also find that the proposed amendment creates an illusory right to
choose a health care provider when in fact it would severely limit an individual's
ability to enter into a health care contract.").
If approved, the amendment may well hamper citizens' ability to press their
medical liability claims because its ceiling on contingency fee percentages would
discourage the participation of knowledgeable and experienced counsel.
Nonetheless, nothing within the text of the amendment points to that result. The
fact that one may reasonably anticipate particular consequences of the amendment
does not render a summary that omits these potential consequences misleading as
to the current state of the law.
As Justice Lewis has stated, the proponents of this amendment appear to
have an ulterior purpose. However, that is not a fatal flaw at this stage of the
process. Advocates of a constitutional amendment may have different motives.
We cannot say with confidence that all who might favor this amendment and are
aware of its potential impact on legal representation would favor its passage solely
for that reason. To ascribe one primary motive to advocates of a measure, and
then require that this motive be conveyed in a seventy-five word ballot summary, is
impractical if not impossible.
I conclude that the task of informing the public as to the possible motivations
behind the proposed amendment and its potential practical effects must fall on the
proponents and opponents of the measure. The following observations we made in
reviewing another summary hold true here:
It is true . . . that certain of the details of the [text] as well as some of
its ramifications were either omitted from the ballot question or could
have been better explained therein. That, however, is not the test.
There is no requirement that the referendum question set forth the
[text] verbatim nor explain its complete terms at great and undue
length. Such would hamper instead of aiding the intelligent exercise of
the privilege of voting. Under our system of free elections, the voter
must acquaint himself with the details of a proposed ordinance on a
referendum together with the pros and cons thereon before he enters
the voting booth. If he does not, it is no function of the ballot
question to provide him with that needed education. What the law
very simply requires is that the ballot give the voter fair notice of the
question he must decide so that he may intelligently cast his vote.
That requirement has been more than adequately met in this case.
Advisory Opinion to Atty. Gen. re Right to Treatment and Rehabilitation, 818 So.
2d 491, 498 (Fla. 2002) (quoting Metropolitan Dade County v. Shiver, 365 So. 2d
210, 213 (Fla. 3d DCA 1978)).
Accordingly, I concur in the majority's approval of this ballot title and
summary for placement on the ballot.
QUINCE, J., concurs.
LEWIS, J., dissenting.
It is well settled that the intent of section 101.161(1) is to ensure that voters
are advised of the true meaning and purpose of a proposed constitutional
amendment. See Askew v. Firestone, 421 So. 2d 151, 156 (Fla. 1982). This Court
has recognized that "[a] ballot title and summary cannot either 'fly under false
colors' or 'hide the ball' as to the amendment's true effect." Armstrong v. Harris,
773 So. 2d 7, 16 (Fla. 2000). I must dissent from the majority's holding approving
the proposed ballot title and summary in the instant action, as it is clear that the
singular and only purpose of this proposed amendment is not as printed, but is
instead the unstated ulterior purpose of interfering with the relationship between
injured citizens of Florida and representatives they may wish to secure to protect
their interests and, as a direct result, impact access to the courts as guaranteed in
article I, section 21 of the Florida Constitution.
In Armstrong, this Court considered the following ballot title and summary:
BALLOT TITLE: PRESERVATION OF THE DEATH PENALTY;
UNITED STATES SUPREME COURT INTERPRETATION OF
CRUEL AND UNUSUAL PUNISHMENT
BALLOT SUMMARY: Proposing an amendment to Section 17 of
Article I of the State Constitution preserving the death penalty, and
permitting any execution method unless prohibited by the Federal
Constitution. Requires construction of the prohibition against cruel
and/or unusual punishment to conform to United States Supreme
Court interpretation of the Eighth Amendment. Prohibits reduction of
a death sentence based on invalidity of execution method, and
provides for continued force of sentence. Provides for retroactive
Armstrong, 773 So. 2d at 16. The Court there held that the title and summary were
misleading because they implied that the amendment would protect the rights of
Florida citizens, when in fact the effect of the amendment would be to nullify rights.
See id. at 17-18. This Court held that the ballot title and summary could not "fly
under false colors" in such a manner. Moreover, the Court also held that the title
and summary "hid the ball" from the voters by asserting that the purpose of the
proposed amendment was to "preserve" the death penalty, when the actual purpose
was to nullify the Cruel or Unusual Punishment Clause of the Florida Constitution.
See id. at 18. As the main target of the proposed amendment was not mentioned in
the title and summary, this Court held that the ballot title and summary were
defective. See id.1
1. I must note that although I dissented from the majority's opinion in
Armstrong, my dissent was not premised upon Armstrong's admonition that the
ballot title and summary must not either "fly under false colors" or "hide the ball"
with regard to the amendment's true effect. Instead, I dissented from the
Armstrong majority on an entirely separate basis, not at issue here. In my view, this
Court's review of the ballot title and summary at issue in Armstrong after the
proposed amendment had appeared on the ballot and had been approved by the
voters in the general election was untimely. As I expressed in my dissent in
Armstrong, there I would have applied the principle of law that:
[O]nce an election has been concluded and the result determined, it is
the duty of the judicial system to uphold that result, if possible, if the
process has been essentially free and fair, the voters have not been
essentially deprived of their right to vote due to the alleged defect, and
the result has not been so tainted by irregularities as to suggest that the
result is not the intent of the electorate.
Armstrong, 773 So. 2d at 33 (Lewis, J., dissenting). Despite my dissent with
regard to the procedural posture of Armstrong, I concurred with the views
expressed in the majority opinion with respect to "the role of judicial system in
connection with proposed constitutional amendments." Id. at 32 (Lewis, J.,
In a similar manner, in Askew, this Court rejected an amendment because a
proposed ballot title and summary failed to adequately inform the voters of the
amendment's true chief purpose. There, we considered the following ballot title
FINANCIAL DISCLOSURE REQUIRED BEFORE LOBBYING BY
FORMER LEGISLATORS AND STATEWIDE ELECTED
OFFICERS. Prohibits former legislators and statewide elected
officers from representing other persons or entities for compensation
before any state government body for a period of 2 years following
vacation of office, unless they file full and public disclosure of their
Askew, 421 So. 2d at 153. We held that the title and summary were defective
because they neglected to inform the public that the constitution already contained a
two-year ban on lobbying, and the proposed amendment would actually abolish
that provision. See id. at 155. We reasoned: "[T]he 'proposal of amendments to
the Constitution is a highly important function of government, that should be
performed with the greatest certainty, efficiency, care and deliberation.'" Id.
(quoting Crawford v. Gilchrist, 59 So. 963, 968 (Fla. 1912)). Further, we
emphasized that "lawmakers who are asked to consider constitutional changes, and
the people who are asked to approve them, must be able to comprehend the sweep
of each proposal from a fair notification in the proposition itself that it is neither
less nor more extensive than it appears to be." Id. (quoting Smathers v. Smith, 338
So. 2d 825, 829 (Fla. 1976)). See also Advisory Op. to the Att'y Gen. re Casino
Authorization, Taxation and Regulation, 656 So. 2d 466, 469 (Fla. 1995) (finding a
ballot title and summary misleading because they created the impression that
casinos were allowed in Florida and failed to inform voters that most types of
casino gaming were actually prohibited by statute).
The ballot title and summary presented here similarly fail, as they both fly
under false colors and attempt to "hide the ball" from the voters and disguise a very
clear end. They make false promises of benefits when they really take away and
restrict existing rights. The sponsors of the proposed amendment assert that the
chief purpose of the amendment is to guarantee that a claimant for medical liability
with a contingency fee agreement will receive no less than seventy percent of the
first $250,000 in damages and ninety percent of damages in excess of $250,000,
exclusive of reasonable and customary costs and regardless of the number of
defendants. Clearly, the proposed amendment as written portrays that it will
provide protection for citizens by ensuring that they will actually personally receive
a deceptive amount of all money determined as damages in any medical liability
action. However, the amendment actually has the singular and only purpose of
impeding a citizen’s access to the courts and that citizen’s right and ability to
secure representation for a redress of injuries. Its purpose is to restrict a citizen’s
right to retain counsel of his or her choice on terms chosen by the citizen and
selected counsel and to thereby negatively impact the right of Florida citizens to
seek redress for injuries sustained by medical malpractice. This is truly a wolf in
Pursuant to Florida law, medical negligence actions are currently highly
regulated, and, unquestionably, Florida's citizens require the assistance of
knowledgeable and experienced attorneys to navigate through the extensive and
complicated process. Those attorneys who have worked years to gain expertise in
this highly specialized field are certainly entitled to reasonable compensation. If
enacted, the proposed amendment will not eliminate the process an injured citizen
must follow, but is designed to and will undoubtedly eliminate the willingness of
counselors to accept the responsibility for such matters with the economic
Prior to filing a legal action, a claimant is required to notify all prospective
defendants of the claims. See § 766.106, Fla. Stat. (2003). At times, it is often
difficult to initially identify those responsible for clear injuries. Once a claimant has
filed notice with the prospective defendants, there are specific time periods and
limitations that must be precisely followed before the actual legal action is
considered timely filed. See § 766.106, Fla. Stat. (2003). Unlike all other areas of
Florida law, our law now mandates that prior to initiating a medical negligence
action, a claimant must conduct an entire presuit investigative process as a
condition precedent to proceed with any claims. See §§ 766.203-766.206, Fla.
Stat. (2003). Failure to follow this required presuit screening process constitutes a
basis to defeat any claim even if the claim is absolutely valid and the damages
enormous. See § 766.106, Fla. Stat. (2003).
Once an action has been filed, the court may require, upon motion by a
health care provider, that the claim be submitted to an arbitration process that is
totally nonbinding. See § 766.107, Fla. Stat. (2003). In the alternative, the parties
may mutually agree to binding arbitration. See § 766.207, Fla. Stat. (2003). If the
parties do not agree to binding arbitration, section 766.108 of the Florida Statutes
(2003) requires that the parties participate in mandatory mediation and settlement
conference activities prior to any trial. See § 766.108(1)-(2)(a), Fla. Stat. (2003).
Clearly, before a claim is ever filed or a trial may begin or damages are awarded, a
litigant with a medical negligence claim must proceed through a lengthy, timeconsuming, and certainly, costly process. This mandatory pretrial screening
process will remain in effect even if the proposed amendment is adopted. Florida
citizens need, and are entitled to, assistance to guide them through this process. As
evidenced by the numerous decisions concerning the pretrial medical negligence
process, the existing law has been a series of traps and a minefield for many
Floridians. See, e.g., Goradesky v. Hickox, 721 So. 2d 419, 420 (Fla. 4th DCA
1998) (affirming dismissal of claim for failing to file corroborating expert affidavit
and failure to conduct reasonable presuit investigation before filing notice of intent);
Kukral v. Mekras, 647 So. 2d 849, 850-51 (Fla. 3d DCA 1995) (affirming dismissal
of claim and holding no reasonable investigation was conducted), quashed, 679 So.
2d 278 (Fla. 1996); Archer v. Maddux, 645 So. 2d 544, 547 (Fla. 1st DCA 1994)
(affirming dismissal of claim for failure to provide corroborating expert opinion
within statute of limitations). The district courts have recognized that the presuit
investigation requirements are "complex and confusing," Coffaro v. Hillsborough
County Hosp. Auth., 752 So. 2d 712, 713 (Fla. 2d DCA 2000), approved, 829 So.
2d 862 (Fla. 2002), and that the "interrelationship of [the] tolling and extension
periods has produced [a] type of mathematical puzzle." Id. at 714. Further, they
have recognized that while the procedures were not designed to function as traps
for the litigants, they have nonetheless become just that—a trap. See id. at 715;
Zacker v. Croft, 609 So. 2d 140, 141-42 (Fla. 4th DCA 1992). Unquestionably,
without competent counsel, the process is impossible.
It is also vital to note the damage caps which now exist within the medical
negligence statutory provisions, which are rarely mentioned but will continue to
remain in effect should the proposed amendment be adopted. If the parties agree
to binding arbitration pursuant to section 766.207, economic damages, including
past and future medical expenses and eighty percent of wage loss2 and loss of
earning capacity can be awarded, offset, however, by collateral source payments.
In this process, noneconomic damages are capped at $250,000 with future
economic losses available, but they must be paid in periodic installments. Punitive
damages are not available no matter how egregious the conduct may be. See §
766.207, Fla. Stat. (2003). If a claimant rejects a medical provider's offer to enter
voluntary binding arbitration, the only damages awardable at trial are limited to net
economic damages and noneconomic damages are absolutely capped not to
exceed $350,000 per incident. See § 766.209, Fla. Stat. (2003).
If the parties proceed to trial, and damages are awarded to a claimant,
noneconomic damages for the negligence of practitioners, regardless of the
number, are capped at $500,000 per claimant if the negligence resulted in personal
2. The Legislature expressly found that "[t]he recovery of 100 percent of
economic losses constitutes overcompensation because such recovery fails to
recognize that such awards are not subject to taxes on economic damages." §
766.201(1)(e), Fla. Stat. (2003).
injury or wrongful death, and $1 million for all practitioners if the negligence
resulted in a permanent vegetative state or death. See § 766.118, Fla. Stat. (2003).
Similarly, noneconomic damages for the negligence of nonpractitioners are capped
at $750,000 per claimant if the negligence resulted in personal injury or wrongful
death, and $1.5 million from all nonpractitioners if the negligence resulted in a
permanent vegetative state or death. See § 766.118, Fla. Stat. (2003). Finally, for
the negligence of practitioners providing emergency services, noneconomic
damages are capped at $150,000 per claimant, and a total claim of $300,000. See §
766.118, Fla. Stat. (2003).3 All of these seldom discussed damage caps
demonstrate that injured claimants are not eligible to receive enormous sums of
money even if they are totally correct, suffer the consequences of absolutely clear
negligence, and have been egregiously injured. In this highly specialized field,
damages are currently artificially limited, and if the proposed amendment is
adopted, these damage caps, along with the expensive and time consuming pretrial
process, will remain in effect.
3. It should also be noted that the Legislature has created the Florida BirthRelated Neurological Injury Compensation Plan. The purpose of this plan, as
expressed by the Legislature, is to provide compensation, on a no-fault basis, for
birth-related neurological injuries. The compensation plan is the exclusive remedy
for such injuries, and limits recovery to $100,000. See § 766.303, Fla. Stat. (2003);
§ 766.31(1)(b)1., Fla. Stat. (2003).
Several statutes which relate to the rights of third parties to enforce hospital
liens and receive reimbursement or subrogation are also substantially implicated by
the enactment of the proposed constitutional amendment. Pursuant to chapter
27032, Laws of Florida (1951), (commonly known as the "Hospital Lien Act")
many of Florida's counties have adopted hospital lien acts that entitle hospitals to
liens upon all causes of action for all reasonable charges for hospital care, treatment
and maintenance. See, e.g., ch. 78-552, Laws of Fla. (Lee County's hospital lien
act); ch. 57-1688, Laws of Fla. (Palm Beach County's hospital lien act); ch. 571644, Laws of Fla. (Orange County's hospital lien act); ch. 30615, Laws of Fla.
(1955) (Broward County's hospital lien act). Additionally, there are both state and
federal laws pertaining to the reimbursement of Medicaid and Medicare payments
and the right of insurance and health maintenance organizations to be reimbursed
for payments to subscribers who suffer injury, disease, or illness by virtue of the
negligent act of a third party. See, e.g., 42 U.S.C. § 1395; § 409.910, Fla. Stat.
(2003); § 641.31(8), Fla. Stat. (2003). If the proposed amendment is adopted,
these provisions for payments to entitled third parties may be impacted, and due to
the statutory damage caps, damage awards in some situations may not be sufficient
to ensure that all eligible third parties receive full payment after the claimant receives
seventy percent of the first $250,000 and ninety percent of all damages over
$250,000, as mandated by the amendment. Common law and traditional
subrogation rights are also implicated. Most importantly, the true purpose of the
proposed amendment is truly revealed in the convergence of the proposed
amendment, the unique presuit process, the statutes pertaining to the rights of third
parties, and the damage cap statutory provisions. All converge to leave little, if any,
funds remaining for Florida citizens to obtain counsel. Without knowledgeable and
experienced attorneys to provide representation, the citizens of Florida will have no
meaningful access to the courts, and the end result will be that the courthouse door
will be open to only those wealthy enough to afford to compensate an attorney on
some non-contingency fee basis.
As in Armstrong, Askew, and Casino Authorization, Taxation and
Regulation, the proposed ballot title and summary here are patently misleading.
They promise benefits while taking away important rights. The chief purpose of the
proposed amendment is to render it economically impossible for claimants and
their legal representatives to proceed with actions to redress legitimate injuries.
With the artificial percentages of recovery mandated by the proposed amendment,
unquestionably, legal counselors will be unable to accept responsibility for
processing medical actions. Due to the complex nature of medical negligence
claims, including the requisite statutory screening process, injured citizens will be
unable to navigate the field alone. Moreover, health care providers will not be
similarly handicapped, as the proposed amendment will in no way impact their
rights to retain counsel on any terms or limit the funds available to secure defense
Every citizen of Florida needs and is entitled to assistance of counsel in all
legal matters, particularly in connection with medical negligence actions, and to be
free to engage counsel on terms the citizen deems appropriate. The proposed
ballot title and summary fly under false colors and hide the ball by completely
failing to inform the voters of the actual chief purpose of the proposed amendment,
which is to so adversely impact representation in such actions as to eliminate most,
if not all, such actions by restricting the terms of any representation agreement
between the citizen and selected counsel. Without being informed regarding the
current state of the law, voters will unquestionably be unable to comprehend the
extensive sweep of the proposed amendment. If the sponsors of this amendment
seek to restrict or eliminate medical liability actions involving contingency fee
agreements, then they should say exactly that, as mandated by this Court's
precedent. They should not falsely claim they are providing a benefit to those
injured by medical malpractice when they are in fact restricting their rights to secure
adequate legal representation. There really is no other purpose of this proposed
amendment. The title and summary are not required to disclose all ramifications,
but the purpose must be disclosed. In my view, the proposed ballot title and
summary are defective for failing to inform the voters of the true chief purpose of
the proposed amendment and, therefore, I must dissent.
ANSTEAD, J., concurs.
Original Proceeding - Advisory Opinion to the Attorney General
Charles J. Crist, Jr., Attorney General and Louis F. Hubener, Chief Deputy
Solicitor General, Tallahassee, Florida,
Stephen H. Grimes and Susan L. Kelsey of Holland and Knight, LLP, Tallahassee,
for Citizens For a Fair Share, Inc., Proponents
Timothy McLendon and Jon Mills, Gainesville, Florida and Barnaby W. Zall of
Weinberg and Jacobs, LLP, Rockville, Maryland, on behalf of Floridians for
Patient Protection; and Arthur I. Jacobs and Lisa G. Satcher of Jacobs and
Associates, P.A., Fernandina Beach, Florida on behalf of Trial Lawyers Section of
the Florida Bar,