As experienced Palm Beach medical malpractice lawyers, we’re closely familiar with the 2004 Florida law passed overwhelmingly by voters with the intention of preventing dangerous doctors from practicing medicine. It’s a “three strikes” rule for medical malpractice that seems fairly straightforward: A doctor with three “strikes” of medical malpractice will lose their license to practice. Unfortunately, we know all-too-well how ineffective it is, thanks to follow-up efforts by the state legislature, which made it nearly impossible for the state board to actually levy a strike.
The “Three Strikes Rule” was passed as an amendment to Chapters 458 and 459 of Florida Statutes. The law holds that if a physician has three or more incidents of medical malpractice (as established by a standard of clear and convincing evidence), they will be forbidden from the continued practice of medicine in Florida. A “strike” can be derived from a finding of medical malpractice by one of the following:
- A final order by an administrative agency following a hearing.
- A final order by a judge/jury in a civil case.
- A binding arbitration decision.
It should be noted that medical malpractice isn’t as easy to prove as the typical negligence case. It’s not enough to show the absence of ordinary care. Rather, one must prove – via expert witness testimony from a similarly-situated professional – that the physician failed to abide the applicable standard of care, which depends on that doctor’s education, skill, specialty, and resources. But even with this higher standard and even with the three strikes law, doctors with checkered professional histories continue to practice.
Numerous journalistic deep-dives and scholarly studies in recent years – from NBC-5 in West Palm Beach to The Palm Beach Post – have highlighted this legal loophole. Yet as our medical malpractice lawyers can attest, the problem persists, with Florida doctors who’ve paid out 3+ medical malpractice claims continuing to practice, often with patients none-the-wiser. News outlets have reported there are hundreds of still-practicing doctors who have collectively paid out hundreds of millions of dollars in Florida medical malpractice lawsuits stemming from the deaths of more than 1,000 patients over 10 years.
In one of the more recent cases, The Post reported one South Florida OBGYN who practiced in Palm Beach County for more than three decades had been linked to 14 catastrophic injuries of women and children – including six deaths – yet the medical board had never given him a strike. He was named in four cases of discipline by the board and nine medical malpractice lawsuits. He wasn’t stripped of his license until last year.
The number of times the 2004 three strikes law has led to the revocation of a doctor’s license isn’t known because the Florida Department of Health doesn’t track it.
As far as the medical board’s failure to levy strikes against doctors, it appears the problem has to do with the evidence standard required by statute to do so. “Clear and convincing evidence” is sort of the mid-level standard for evidence; it’s lesser than what is used in criminal cases (beyond a reasonable doubt) but more than what’s used in most civil cases (by a preponderance of the evidence). For this reason, it’s not likely that an arbitration panel or a civil court is going to issue a finding of medical malpractice by the clear and convincing standard – because that’s not what is used to determine medical malpractice in those forums. But even if those things happen, the medical board must use a stringent standard to determine whether a strike is warranted. (Plus, it could be years after the fact, as cases are forwarded to the board indirectly by a liability carrier who reports it to the Office of Insurance who reports it to the Department of Health which then reports it to the board of medicine.) If the doctor settles the lawsuit or disciplinary complaint (as many often do), then there’s no official finding of malpractice.
Bottom line: The Florida three strikes law for medical malpractice lacks any real teeth. The chairman of the state’s medical board has argued the state should consider giving the board more power to investigate these claims, rather than requiring so much red tape before it gets to them.
But whether a doctor has prior “strikes” against them should not impact your medical malpractice claim. It can impact their license, but the question in your medical malpractice case will be whether you can prove the doctor failed to provide proper care. Our dedicated South Florida medical malpractice attorneys can help answer questions about your case and how best to proceed.
Contact the South Florida personal injury attorneys at Halberg & Fogg PLLC by calling toll-free at 1-877-425-2374. Serving West Palm Beach, Miami, Tampa, Orlando and Fort Myers/ Naples. There is no fee unless you win.
Additional Resources:
What is Florida’s 3 strikes malpractice law? Here’s how dangerous doctors evade it, Sept. 23, 2021, By Holly Baltz, Palm Beach Post
More Blog Entries:
Expert Witness Testimony is Essential in Florida Medical Malpractice Claims, Sept. 20, 2021, South Florida Medical Malpractice Lawyer Blog