Med mal fee waiver procedures argued
Med mal fee waiver procedures argued
The debate involved whether a judicial hearing should be required to give up Amendment 3 rights
Gary Blankenship
Senior Editor
A mandatory judicial review when a client wants to waive the right to a reduced contingency fee in medical malpractice cases would protect those clients, supporters of the constitutional provision limiting such fees have argued to the Supreme Court.
But The Florida Bar contended that while judicial review would be acceptable, there should not be restrictions on a client’s right to waive the fee limits or clients might have trouble hiring the attorney of their choice or finding the best attorneys.
Those were among the reasonings presented to the Florida Supreme Court on June 8 when it heard oral arguments on a proposed Bar rule to enforce Amendment 3, approved by voters in November 2004.
That amendment limits contingency fees in medical malpractice cases to 30 percent of the first $250,000 awarded and 10 percent above that. Lawyers representing malpractice plaintiffs responded to its passage by having clients waive their right to the lower fee.
Last year the Florida Medical Association got former Supreme Court Chief Justice Stephen Grimes to file a petition, signed by him and 53 other attorneys, to amend Bar rules to incorporate the contingency fee restrictions of Amendment 3.
The court heard oral arguments on that petition late last year. It then ordered the Bar to prepare a draft rule that would require that clients be informed of the constitutional limitation but also be given the chance to “knowingly and voluntarily waive the rights” given by the amendment. It also asked the Bar to examine whether a judicial hearing should be required when signing the waiver.
The Bar filed the proposed rule earlier this year. It did not require the judicial hearing, but left it as an option. Most of the June 8 oral argument focused on the proposed rule and the necessity for a hearing.
Attorney Barry Richard, representing the Bar, said the Bar did not have strong feelings about having a hearing. He said it was not made a requirement because circuit judges told the Bar that the waiver hearing requirement in current Bar contingency fee rules is mostly perfunctory and a poor use of judicial time.
Justice Charles Wells noted that in a case where the defendant had admitted liability and where damages would likely be $5 million, attorneys’ fees would be $550,000 under the amendment and $1.23 million under Bar contingency fees rules. He said that could give attorneys a conflict of interest when discussing the waiver with clients and that might merit judicial review.
Richard replied that the rule still provided for judicial oversight even without a hearing. He also said, “I think that the proposal that the Bar made was not intended to eliminate prior judicial review [but] make the court aware of the opinion of the judges who had dealt with this.”
In response to a question from Justice Kenneth Bell, Richard said the Bar would oppose requiring a judge in a waiver hearing to find a necessity that the constitutional fee limit be waived, as advocated by Grimes in his brief on the rule.
“The client has a right to a lawyer of the client’s choice,” Richard said. “If you do that [impose a necessity test], you are saying that plaintiffs in these cases are limited to that pool of lawyers willing to take a case with this cap on it, whereas the defense lawyers have no limitation on the fee they can take.”
It would also imply that every adult client was incapable of making up his or her own mind, he said.
Grimes, representing the rule-change petitioners, argued that having hearings would protect clients, especially in such a case as cited by Wells.
“I submit that the premise of Amendment 3 is that there are many lawyers, many good competent lawyers who would gladly take these cases for the constitutional fee,” he said. “You have to make sure that the client understands that there is going to be a dramatic difference in the amount of fees.”
In his brief, Grimes argued that lawyers have an inherent conflict of interest because they are advising the client to give up a constitutional right which results in a higher fee for the lawyer.
“If The Florida Bar’s proposal is adopted, judicial oversight will be required only for fee arrangements which exceed the current limits in the existing rule, yet the client will be permitted to waive the constitutional limits without judicial oversight,” Grimes wrote. “It is anomalous to give more protection to the client when waiving his or her rights under a Florida Bar rule than when waiving a right established by the Florida Constitution.”
Chief Justice Barbara Pariente said she was concerned that such a hearing could be held early in a case, while the lawyer is still investigating and determining the difficulty and the time and resources necessary.
“This is at the outset. That is when the contract gets signed. The lawyer doesn’t really know at that point. . . [in most cases] whether there is even a chance that they are actually going to bring this to court,” she said.
“It would be on a case-to-case basis and each case would be different,” Grimes replied. “The lawyers would certainly have some idea. The lawyer isn’t going to take a case to start with, and shouldn’t, if he has no idea of the possibility of liability.”
Justice Harry Lee Anstead asked what the court should tell judges who find the current fee waiver hearing largely unnecessary.
“The difference here is this is a waiver of a constitutional right, as contrasted to a court rule, and the judges need to go into it more,” Grimes replied.
University of Florida law Professor Joe Little argued to the court that it should reject any waiver from the fee restriction, but appeared to run into skepticism from several justices.
Justice Raoul Cantero noted that criminal defendants can waive basic rights, including the right to counsel and the right to a jury trial, without going before a judge.
Little replied that the waiver is inherent in those rights under common law, but not in the contingency fee limit. He added that citizens cannot waive their rights and enter into usurious contracts or contracts that would bind them into slavery.
He also argued that when the court considered the constitutionality of the amendment and its ballot summary in 2004, it would have rejected the summary if the amendment had included the right to a waiver but it had not been mentioned in the summary.
But Justices Fred Lewis and Peggy Quince said the court is concerned with the accuracy of the ballot summary, among other things, and not how the amendment might be applied in the future.
“We strike these if they are misleading because of the actual language that is being used in the ballot summary is misleading, not because what may happen in the future with that proposed amendment is misleading,” Quince said.
“I disagree with you, your honor, and I think you are wrong,” Little replied.
“I accept that you think I am wrong,” Quince responded, smiling.
In his rebuttal, Richard addressed Little’s example, and noted if the amendment had contained language prohibiting a waiver, the amendment would have been struck if that hadn’t been mentioned in the ballot summary.
“So the suggestion now, after the fact, when there was no notice to that effect to the public, that this court could engraft those limitations on it, in the first place makes no sense and in the second place would be exactly the type of judicial activism that many of the persons who are advocating the additions to the amendment decry,” he argued. “It wasn’t in the amendment.”
The court gave no indication when it would rule in the case.
