Advisory Opin. to Atty. Gen. Re Malpractice

880 So. 2d 667, 2004 WL 1574024
CourtSupreme Court of Florida
DecidedJuly 15, 2004
DocketSC04-778
StatusPublished
Cited by6 cases

This text of 880 So. 2d 667 (Advisory Opin. to Atty. Gen. Re Malpractice) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Advisory Opin. to Atty. Gen. Re Malpractice, 880 So. 2d 667, 2004 WL 1574024 (Fla. 2004).

Opinion

880 So.2d 667 (2004)

ADVISORY OPINION TO THE ATTORNEY GENERAL RE PUBLIC PROTECTION FROM REPEATED MEDICAL MALPRACTICE.

No. SC04-778.

Supreme Court of Florida.

July 15, 2004.

Charles J. Crist, Jr., Attorney General and Louis F. Hubener, Chief Deputy Solicitor General, Tallahassee, FL, for Petitioner.

Scott Henry Carruthers, Chair, Tallahassee, FL; and Jon Mills and Timothy *668 McLendon, Gainesville, FL, for Floridians for Patient Protection, Proponents.

Stephen H. Grimes and Susan L. Kelsey of Holland and Knight, LLP, Tallahassee, FL, on behalf of Florida Medical Association, Inc.; and Harold R. Mardenborough, Jr. of McFarlain and Cassedy, P.A., Tallahassee, FL, and Graham H. Nichol, General Counsel, and Don A. Dennis, Associate General Counsel, Tallahassee, FL, on behalf of Florida Dental Association, for Opponents.

PER CURIAM.

The Attorney General has requested this Court to review a proposed amendment to the Florida Constitution that would bar any person found to have committed three or more incidents of medical malpractice from being licensed to provide health care services as a medical doctor. We have jurisdiction. See art. IV, § 10; art V, § 3(b)(10), Fla. Const.

I. THE PROPOSED AMENDMENT AND BALLOT SUMMARY

The full text of the proposed amendment states:

a) Statement and Purpose:
Under current law, a medical doctor who has repeatedly committed medical malpractice in Florida or while practicing in other states or counties may obtain or continue to hold a professional license to practice medicine in Florida. The purpose of this amendment is to prohibit such a doctor from obtaining or holding a license to practice medicine in Florida.
b) Amendment of Florida Constitution:
Art. X, Fla. Const., is amended by inserting the following new section at the end thereof, to read:
"Section 20. Prohibition of Medical License After Repeated Medical Malpractice.
"a) No person who has been found to have committed three or more incidents of medical malpractice shall be licensed or continue to be licensed by the State of Florida to provide health care services as a medical doctor.
"b) For purposes of this section, the following terms have the following meanings:
"i) The phrase `medical malpractice' means both the failure to practice medicine in Florida with that level of care, skill, and treatment recognized in general law related to health care providers' licensure, and any similar wrongful act, neglect, or default in other states or countries which, if committed in Florida, would have been considered medical malpractice.
"ii) The phrase `found to have been committed' means that the malpractice has been found in a final judgment of a court of law, final administrative agency decision, or decision of binding arbitration."
c) Effective Date and Severability:
This amendment shall be effective on the date it is approved by the electorate. If any portion of this measure is held invalid for any reason, the remaining portion of this measure, to the fullest extent possible, shall be severed from the void portion and given the fullest possible force and application.

The ballot title for the proposed amendment is "Public Protection from Repeated Medical Malpractice." And the ballot summary for the proposed amendment states:

Current law allows medical doctors who have committed repeated malpractice to be licensed to practice medicine in Florida. *669 This amendment prohibits medical doctors who have been found to have committed three or more incidents of medical malpractice from being licensed to practice medicine in Florida.

II. STANDARD AND SCOPE OF REVIEW

Review of the validity of an amendment to the Florida Constitution proposed by initiative is limited to two issues: (1) whether the proposed amendment satisfies the single-subject limitation of article XI, section 3 of the Florida Constitution; and (2) whether the ballot title and summary satisfy the requirements of section 101.161(1), Florida Statutes (2003). Advisory Op. to Att'y Gen. re Fish & Wildlife Conservation Comm'n, 705 So.2d 1351, 1353 (Fla.1998). This Court does not review the merits or the wisdom of the proposed amendment. Advisory Op. to Att'y Gen. re Right of Citizens to Choose Health Care Providers, 705 So.2d 563, 565 (Fla.1998); see also Smith v. Coalition to Reduce Class Size, 827 So.2d 959, 963 (Fla.2002) (if initiative meets requirements of article XI, section 3, Florida Constitution, "then the sponsor of an initiative has the right to place the initiative on the ballot").

III. SINGLE-SUBJECT REQUIREMENT

Article XI, section 3 of the Florida Constitution requires that an amendment proposed by initiative "shall embrace but one subject and matter directly connected therewith." To comply with this single-subject requirement, a proposed amendment must manifest a "logical and natural oneness of purpose." Fine v. Firestone, 448 So.2d 984, 990 (Fla.1984). There are two primary purposes for imposing the single-subject requirement. The first is to prevent "logrolling," which is a "practice whereby an amendment is proposed which contains unrelated provisions, some of which electors might wish to support, in order to get an otherwise disfavored provision passed." See Advisory Op. to Att'y Gen. re Limited Casinos, 644 So.2d 71, 73 (Fla.1994) (citing Advisory Op. to Att'y Gen.—Limited Marine Net Fishing, 620 So.2d 997 (Fla.1993)). The second purpose is to prevent a single constitutional amendment from substantially altering or performing the functions of multiple aspects of government. See In re Advisory Op. to Att'y Gen.—Save Our Everglades, 636 So.2d 1336, 1340 (Fla.1994).

The opponents of the instant proposed amendment, the Florida Medical Association and the Florida Dental Association, do not argue that the proposed amendment presents any danger of logrolling, and we find that the proposed amendment contains only related provisions aimed at achieving a single goal. However, the opponents do argue that the proposed amendment violates the single-subject requirement because it substantially alters or performs the functions of multiple aspects of government.

As we previously have stated, "[a]lthough a proposal may affect several branches of government and still pass muster, no single proposal can substantially alter or perform the functions of multiple branches." Save Our Everglades, 636 So.2d at 1340.

We recognize that all power for each branch of government comes from the people and that the citizens of the state have retained the right to broaden or to restrict that power by initiative amendment. But where such an initiative performs the functions of different branches of government, it clearly fails the functional test for the single-subject limitation the people have incorporated into article XI, section 3, Florida Constitution.

*670 Evans v. Firestone, 457 So.2d 1351, 1354 (Fla.1984).

In the present case, the proposed amendment, if adopted, clearly would supercede section 458.331(1)(t), Florida Statutes (2003),[1] and revoke any discretion the Board of Medicine previously had with regard to the discipline of any medical doctor found to have committed three or more incidents of medical malpractice.

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