Monday, July 7, 2014

3 Stikes and You're Out!

In 2004, the 3 strike rule was added to the Florida constitution.  In the article, Three Strikes Rule: It has been almost six years: Is there any discernible impact of its passage?, Gregory Chaires explains what a strike is.  For those not aware, a strike is defined as a final judgment by a court or agency that has been supported by clear and convincing evidence.  A strike occurs when and if there is:
  1. A final order of an administrative agency following a hearing where the licensee was found to have committed medical malpractice;
  2. A final judgment of a court of law entered against a licensee where the licensee was found to have committed medical malpractice in a civil court action; or
  3. A decision of binding arbitration where the licensee was found to have committed medical malpractice.
The impact of the 3 strike rule is unclear with respect to its intent to "eliminate recurrent malpractice offenders".  An initial fear was that the rule would drive high-risk specialists (neurosurgeons, Ob-gyn, etc.) our of Florida.  The present data indicates that such concerns have been due to the legal definition of "clear and convincing evidence."  to establish "clear and convincing evidence" in a case, it must first be reviewed by the Florida Board of Medicine, which then decides that "preponderance of evidence" -- a less stringent standard -- has been exceeded.  Preponderance of evidence is sufficient to win a malpractice judgment, but not necessarily a strike.

Like all laws with good intentions the Devil is in the Details and the net effect is always different than believed.  The goal of getting rid of "Bad Doctors" has not happened so far, but the net effect on all the other providers has probably led to higher costs and more defensive medicine.

The fear of 3 strikes already makes a paranoid medical profession, even more anxious about malpractice and peer review.  Most physicians do not realize a referral to the Board of Medical Examiners is more high risk for their careers than a standard malpractice suit.

Hopefully, the 3 strike rule will be rewritten-- defensive medicine and higher costs will always continue to increase with the present adversarial system in place.  The New Zealand system of no-fault takes a huge step to reimburse victims of medical incidents without terrorizing providers.  After all, even in baseball, there is recognition that the batter is less than perfect.  Three strikes there too takes clear and convincing evident; you can foul all day long, but until there is a swing and a miss or one right over the plate, the batter retains his position at bat.

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