Journal of Plastic, Reconstructive & Aesthetic Surgery (2008) 61, 1569e1570

LETTER FROM AMERICA

FAQs, facts, myths and misconceptions aboutmedical malpractice part 1

4 There is an exception to this based on a Florida Supreme Courtcase called Fabre v. Marin. As a result of Fabre, if your name is inthe patient’s chart, you will be sued. The rationale for this is that ifthe plaintiff’s attorney fails to sue you, then the defense attorneycan ask the jury to ascribe a percentage of the fault and damagesto you. If as a consequence of this the plaintiff is unhappy with the

A few weeks ago I traveled to Tampa Florida to testify in asan expert witness for two orthopaedic surgeons who werebeing sued for malpractice. The event provoked me toshare my experience and opinions with you. Here presentedin FAQs (Frequently Asked Questions) format are facts andfeelings about medical malpractice in the State of Florida.

We Americans love lists and rankings. Turn to a sportspage or turn on a television and you cannot avoid learningwhat athlete or team is ranked first in whatever sport isbeing reported. If Florida is not number one in medicalmalpractice, it is always vying for the top spot. Althoughsome might dispute Florida’s primacy in medical malprac-tice, nobody would dispute Florida’s pride of place as‘debtor’s heaven’.1 It is rather simple for a Florida citizento shelter his assets from potential creditors.2 The conflu-ence of these facts makes for interesting times.

1. Why are surgeons sued for malpractice?You might think that surgeons are sued because their pa-tients have had an untoward event. If so, you would bewrong. Surgeons are sued because they have malprac-tice insurance. If they do not have insurance they arenot sued. Willie Sutton was a famous early 20th centurybank robber who when asked why he robbed banks re-plied, ‘Because that’s where the money is.’3 Plaintiff’sattorneys are not debt collection attorneys and becauseFlorida is ‘debtor’s heaven’ plaintiffs attorneys sue sur-geons with malpractice insurance as opposed to sur-geons who have ‘gone bare’. Practicing medical

1 See for example http://tinyurl.com/5tlv7j. Accessibility veri-fied April 24, 2008.

2 Note the word ‘‘potential’’ creditors. Attempting to hide as-sets from creditors is fraud. Florida’s reputation as debtor’s heavenhas resulted in individuals such as O.J. Simpson and alumni ofwhite-collar criminal prosecutions such as the Enron debacle mov-ing here before their day in civil court.

3 http://www.fbi.gov/libref/historic/famcases/sutton/sut-ton.htm. Accessibility verified April 24, 2008.

1748-6815/$-seefrontmatterª2008BritishAssociationofPlastic,Reconstrucdoi:10.1016/j.bjps.2008.04.005

malpractice law is a for-profit business. If the plaintiff’sattorney cannot collect a judgment because the defen-dant doctor is ‘bare’, then he cannot pay his own billslet alone satisfy his client. Hence, plaintiffs’ attorneyspractice medicine d preventive medicine d by not su-ing ‘bare’ doctors no matter how incompetent or dan-gerous those doctors may be.4

2. Why do surgeons ‘go bare’?Our local medical association estimates that over 50% ofsurgeons in Miami ‘go bare’. In 2008, a plastic surgeonwith no prior claims (not just no settlements and no guiltyverdicts) could pay over $100,000 annually for $250,000of coverage per claim. Neurosurgeons would pay over$200,000 annually for the same $250,000 of coverage;however, the cost is so prohibitive that no neurosurgeonin private practice in Miami has malpractice insurance.5

3. Why do rational surgeons buy malpractice insurance?Frequently they have no choice. Some hospitals requiremalpractice insurance as a condition of staff membership.

jury’s verdict, he may in turn sue his attorney for legal malprac-tice. Thus ironically, plaintiffs’ attorneys practice ‘‘defensive med-icine’’ and sue first and ask questions later. Clearly Fabre hasresulted in more work for defense attorneys and is known as thedefense attorneys’ children’s orthodontia and college tuition fiscalrelief law.

5 In an effort to reduce their exposure to potential litigation,many surgeons have ceased taking emergency call. This has pre-sented a dilemma to hospitals that some have attempted to resolveby either employing or indemnifying surgeons to take emergencycall.

tiveandAestheticSurgeons.PublishedbyElsevierLtd.All rightsreserved.

1570 Letter from America

If a surgeon lacks malpractice insurance his staff member-ship may not be renewed.6

4. Is there a problem with frivolous lawsuits?No, despite claims by various presidential candidates intheir pursuit of physician campaign contributions, thisproblem does not exist in Florida. Prosecuting a medicalmalpractice lawsuit is very costly. In the United Statesplaintiff’s lawyers are paid on a contingency basis. Un-less they settle cases or obtain favorable judgments,they do not get paid. Hence, plaintiff’s lawyers haveno economic interest in frittering away money on frivo-lous lawsuits.7 Florida law requires any lawyer planningto file a medical malpractice suit to first obtain an affi-davit from an expert stating that there was malpractice.The insurance company that insures the prospective de-fendant has the affidavit and medical records vetted byits own expert. If the insurance company believes thatthe case is defensible, it must obtain an affidavit froman expert stating that there was no malpractice.

5. How often does a malpractice case reach the trial stage?Most malpractice cases settle before trial. Trials occurfor two reasons, either because the insurance companybelieves that the physician did no wrong or becausethe two sides cannot agree on a dollar amount to be

6 These hospitals fear that if a surgeon lacks insurance that theywill be drawn into a lawsuit in which they otherwise may not beinvolved. Some hospitals have been concerned that they faced anincreased likelihood of being sued if their physicians were bareand sought any means of purging bare physicians from their rosters.A personal example is described on this webpage. http://tinyurl.com/2dvv7b. Accessibility verified April 24, 2008.

7 Nor do they have any interest in pursuing cases in which mal-practice has been committed but the damages are minimal. Law-yers plow their pro bono work outside of the field of personalinjury.

paid to the plaintiff. Physicians in Florida have no legalright to prevent their insurance companies from settlingcases. In fact, a 2004 amendment to the Florida Consti-tution that was fostered by the plaintiff’s bar furtherencourages physicians to settle cases. It is called the‘three strike rule’.8 In baseball you have you are outafter three strikes, if a physician is found guilty of mal-practice three times he can have his medical licenserevoked by the state Board of Medicine. However, ifany case settled before trial does not count as a strike.9

6. Is this what you meant about traveling to Tampa totestify as an expert?No, testifying at a trial is the final step for an expert. Ihave run out of room for this month’s letter. Stay tunedfor the next letter when I shall describe the role of theexpert in America both before and during a trial howjunk science is too often on display.

M Felix FreshwaterUniversity of Miami Miller School of Medicine,

Division of Plastic Surgery,9100 S Dadeland Blvd Ste 502,

Miami, FL 33156-7815, United StatesE-mail address: mfelix.freshwater@gmail.com

8 ‘‘No person who has been found to have committed three ormore incidents of medical malpractice shall be licensed or continueto be licensed by the State of Florida to provide health care servicesas a medical doctor.’’ http://tinyurl.com/5cw6st. Accessibility ver-ified April 24, 2008.

9 As of this writing no physician has lost his license under thisamendment. It should be clear that the amendment providesa strong incentive to settle cases because of the fear getting ofthree strikes.