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Court asked to revive ‘3 strikes’

By Carol Gentry
9/10/2009 Health News Florida

Using a malpractice case involving a child with an amputated foot, Orlando attorney Scott McMillen has filed a court challenge to legislative limits on “3 strikes and you’re out” -- a 2004 amendment aimed at dangerous doctors. The limits prevent court cases from counting as strikes.

The "3 strikes" amendment, which voters approved in 2004, called for revoking the medical license of doctors found guilty of medical malpractice three times. Plaintiffs' attorneys and consumer advocates said it would protect the public from dangerous doctors.

But its passage sent a chill through the medical field, and doctors turned to lawmakers for help. The “enabling legislation” lawmakers passed in 2005 said, in effect, that malpractice judgments from courts or arbitration wouldn’t count toward the three strikes.

That gutted the amendment, now Section 26 of Article 10 of the state Constitution, says McMillen. The effect was “not to enable the constitutional amendment, but to completely disable it and render it meaningless.”

Lawmakers said the verdicts from court cases and arbitration would count only if upheld by the Board of Medicine. However, that board is bound by several constraints. 

Most of the complaints brought by the Department of Health before the board are resolved with "settlement agreements," which don't count as strikes against a doctor's license. Also, DOH cannot prosecute cases before the board if more than six years has elapsed from the event that triggered the accusation of malpractice in the first place. 

The Board of Medicine's annual report, which contains a great many statistics, doesn't mention whether it took any licenses based on "3 strikes." DOH's deputy press secretary Eulinda Smith said she will check on the matter.

As Health News Florida reported in August, DOH has dropped dozens of pending complaints against physicians in recent months because of the statute of limitations. As of mid-August, DOH said, 49 complaints involving MD’s had been dropped and another dozen were near the deadline.

State Rep. Ed Homan, R-Tampa, says he didn’t know about the six-year statute of limitations when he pushed the enabling legislation in 2005. But he has no regrets about removing court judgments from the 3-strikes provision, saying some verdicts are based on emotion rather than actual malpractice.

“This was a serious blow to trying to recruit new doctors to Florida,” said Homan, who is an M.D.

The Legislature didn’t say in plain language that court cases wouldn’t count. Instead, it limited the 3-strikes provision to cases of malpractice proved by “clear and convincing evidence” – the level that must be met before the medical board. Court decisions are based on a lower burden of proof: the “preponderance” or “greater weight” of the evidence.

Since the Board of Medicine has always had the right to take away a physician’s license (although rarely does so), the effect of the enabling legislation was to erase the amendment as if it were never passed, McMillen argues.

“This legislation takes away from citizens and courts the ultimate decision regarding what counts as a strike…,” he said in the complaint filed in Orange County’s circuit court July 31.

McMillen’s aim is to get trial and appellate judges to agree and send the case to the Florida Supreme Court. Last year, that court threw out parts of the enabling legislation on another amendment that passed at the same time as “3 strikes.”

The effort to overturn the “3 strikes” limits is part of a malpractice case filed by Brandee Evans and Kasey Burns, parents of 9-year-old Thomas Burns, against Dr. Oludapo Soremi, an Orlando pediatrician. Calls to the attorneys for Dr. Soremi on Wednesday were not returned.

The complaint says Tommy’s parents took him to the Night Lite medical clinic with a fever and swollen ankle in January 2007. Dr. Soremi saw him there and admitted him to Florida Hospital, where he underwent an operation on the ankle the next day, the complaint says. About three weeks later, the child’s foot was amputated “due to medical negligence,” the complaint says.

Both Florida hospital, which is being sued separately, and the physician have filed answers to the complaint denying any negligence in the case. They have also filed a motion to dismiss McMillen's arguments on the "3 strikes" amendment.

--Contact Carol Gentry, editor, at 727-410-3266 or at Carol.Gentry@HealthNewsFlorida.org.