September 3, 2006

Florida’s lengthy medical disciplinary process overflows with obstacles and offers little justice

by Levin & Perconti

Getting through Florida’s medical disciplinary process is like getting through an obstacle course filled with loopholes and opposition. After experiencing a traumatic medical experience, victims begin an arduous journey that could take more than seven years.

First, a victim of medical malpractice files a complaint. Next, the complaint and case file are sent to an investigator who reviews documents, interviews witnesses, and issues a report. The investigator then sends the case and his report to a prosecuting attorney who collects more evidence. The prosecutor is then given discretion whether or not the case should continue. If the victim’s complaint makes it through this obstacle, it soon faces another one: the probable cause panel. This panel determines whether there is enough evidence to send the case to the full board. In the event that the victim’s case passes this barrier, they finally face the medical board who ultimately decides the proper punishment for the physician.

Though grateful for making it this far in the process, the victim at this stage still faces two huge obstacles. First, the board is composed of 15 governor-appointed members, 12 of whom are themselves physicians. Second, the victim has a heavier burden than in civil matters. In civil cases, victims must prove that a physician is liable by a “preponderance of the evidence,” while the Florida medical disciplinary process requires “clear and convincing evidence.”

If the victim meets that heavy burden, proper justice is still an uncertainty. Victims face opposition in the punishment phase, even from their very own state lawmakers.

Although in 2004, the citizens of Florida approved a constitutional amendment that would have automatically revoked the license of any physician found liable of medical malpractice three times, the Florida state lawmakers quickly watered down the law. The Florida state lawmakers changed the law so that the medical board still has the ultimate discretion of revoking a physician’s license.

Additionally, the medical board lowered its minimum fine for doctors who perform surgery on the wrong site of the body from a $10,000 fine to a $1,000 fine.

The current Florida state legislature provides no hope for revitalization of the system. Recently, Representative Gayle Harrell, chairwoman of the House Health Committee, was quoted as saying “The system is working.”

Victims strongly disagree. The process is too long and hardly even provides justice at the end. Eighty percent of the punishments handed to physicians who have committed medical malpractice do not even affect the doctor’s ability to continue practicing medicine.

For now, victims continue to wait to see whether justice will prevail in the Florida state medical disciplinary process.

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