SUPREME COURT OF FLORIDA. Plaintiffs-Appellants, Case No. SC v. CA11 Case No J

Transcription

1 SUPREME COURT OF FLORIDA ESTATE OF MICHELLE EVETTE McCALL, by and through co-personal representatives EDWARD M. McCALL, II, MARGARITA F. McCALL, and JASON WALLEY, Plaintiffs-Appellants, Case No. SC v. CA11 Case No J UNITED STATES OF AMERICA, Defendant-Appellee. BRIEF OF FLORIDA COLLEGE OF EMERGENCY PHYSICIANS AND THE FLORIDA ORTHOPAEDIC SOCIETY, AMICI CURIAE IN SUPPORT OF APPELLEE UNITED STATES OF AMERICA George N. Meros, Jr. Florida Bar No Allen Winsor Florida Bar No GRAYROBINSON PA 301 S. Bronough Street, Suite 600 Tallahassee, Florida Telephone (850) Facsimile (850) Attorneys for Amici Curiae Florida College of Emergency Physicians and the Florida Orthopaedic Society

2 TABLE OF CONTENTS TABLE OF AUTHORITIES... iii STATEMENT OF IDENTITY AND INTEREST OF AMICUS CURIAE... 1 SUMMARY OF ARGUMENT... 2 ARGUMENT... 3 I. THE SUBSTANTIAL LEGISLATIVE RECORD MORE THAN SUPPORTS THE CHALLENGED REFORM... 4 II. POLITICAL OPPOSITION TO THE REFORM DOES NOT UNDERMINE THE LEGISLATIVE BASIS SUPPORTING IT III. THE LEGISLATURE DID NOT IGNORE ALTERNATIVES TO THE ENACTED REFORMS CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE WITH FONT REQUIREMENT ii

3 TABLE OF AUTHORITIES Cases Anderson v. City of Bessemer City, N.C., 470 U.S. 564 (1985)...10 Atkisson v. U.S., 2010 WL (S.D. Fla. July 2, 2010)...11 Estate of McCall v. U.S., 663 F. Supp. 2d 1276 (N.D. Fla. 2009)...11 Kluger v. White, 281 So. 2d 1 (Fla. 1973)... 4 M.D. v. U.S., 745 F. Supp. 2d 1274 (M.D. Fla. 2010)...11 Miami Home Milk Producers Ass n v. Milk Control Bd., 169 So. 541 (1936)...10 Tropical Jewelers Inc. v. Bank of America, N.A., 19 So. 3d 424 (Fla. 3d DCA 2009)...10 Univ. of Miami v. Echarte, 618 So. 2d 189 (Fla. 1993)... 9 Warren v. State Farm Mut. Auto. Ins. Co., 899 So. 2d 1090 (Fla. 2005)... 4 Westerheide v. State, 831 So. 2d 93 (Fla. 2002)...10 Laws of Florida Ch , 1(1), Laws of Fla Ch , 1(10), Laws of Fla Ch , 1(15), Laws of Fla Ch , 1(2), Laws of Fla Florida Legislative Materials Fla. H.R. Select Comm. on Medical Liability Ins., Final Report (March 2003)... 4, 5, 6 Fla. S. Comm. on Judiciary, Affidavits supplied by the Florida Medical Association (July 14-15, 2003)... 8 Fla. S. Comm. on Judiciary, Responses to supplemental request for additional materials and information relating to the July hearings on medical malpractice...8, 9 Fla. S. Comm. on Judiciary, Transcript of hearing (July 14-15, 2003)... 7 iii

4 Other Authorities Governor's Select Task Force on Healthcare Professional Liability Insurance, Final Report and Recommendations (Jan. 29, 2003)... 5, 6, 13, 14 iv

5 STATEMENT OF IDENTITY AND INTEREST OF AMICUS CURIAE The Florida College of Emergency Physicians (FCEP) represents the interests of emergency physicians in the legislative and regulatory contexts. The challenged legislation provides protections to emergency physicians that are not shared by other providers, so the emergency physicians are particularly interested in the outcome of this case. The Florida Orthopaedic Society (FOS) promotes the interests of orthopaedic surgeons in Florida, which are likewise interested in the outcome of this case. 1

6 SUMMARY OF ARGUMENT In 2003 the Florida Legislature enacted the challenged reform to address a crisis of unprecedented magnitude. Plaintiffs and their amici curiae contend that there was no legitimate basis for that reform. But their argument ignores the extensive legislative record, which more than supports the Legislature s action. The record includes the detailed report of a nonpartisan Task Force designated to study the problem, hours of testimony before the Legislature, hundreds of affidavits of stakeholders, and considerable additional materials. The determinations the Legislature drew from that record were not clearly erroneous and therefore are entitled to this Court s deference. Moreover, the Legislature did not ignore potential alternative solutions, as Plaintiffs suggest. It considered and rejected alternatives and concluded that the challenged caps were an essential component of any package or reforms. That determination, like the others, is based on a substantial record and entitled to deference. This Court must uphold the reforms, which have protected patients and Florida s healthcare system for eight years. Invalidating the reform would thrust Florida back into crisis and would harm everyone most particularly the most vulnerable among us. 2

7 ARGUMENT In 2003 the Florida Legislature acted purposefully and responsibly to ensure the availability and quality of healthcare to all Floridians. For the ensuing eight years, citizens and providers have relied on those reforms. Stability has returned, and Floridians have improved access to quality medical care once again. Plaintiffs now ask this Court to invalidate the very reforms that stabilized the system. Such a result would thrust Florida back into crisis. And just like before, Florida s first responders emergency-care physicians and specialists working in emergency rooms would be unable to serve the most critically injured and vulnerable Floridians. Plaintiffs contend the damages caps are bad policy, harmful to patients, and unconstitutional. As the federal district court found, Plaintiffs are wrong. But Plaintiffs most fundamental error follows their insistence that the legislative reforms were enacted without any proper basis. Hoping to prove the absence of any real crisis, Plaintiffs and their several amici curiae mischaracterize the legislative record, cite meaningless remarks of political opponents, and ignore mountains of evidence. This brief will focus on the substantial evidentiary record the Legislature considered, and it will respond to the attacks on that record. 1 1 Plaintiffs insistence that the reforms lacked any substantive basis relates to their arguments regarding Florida s Equal Protection Clause and the Right to Access to Courts. As Appellee s brief explains, the reform does not violate 3

8 I. THE SUBSTANTIAL LEGISLATIVE RECORD MORE THAN SUPPORTS THE CHALLENGED REFORM. Plaintiffs and their supporters insist there was no real crisis. Amici curiae Florida s for Patient Protection, Inc., and Florida Consumer Action Network, Inc. (together, FPP ) begin by labeling all of the Legislature s express findings conclusory and generalized statements of unproven opinion, unsupported by the facts before the Legislature in (Br. of FPP at 6.) But their arguments based primarily on selective quotes from certain legislative materials fall far short of disproving the well-established crisis. For example, FPP quotes a portion of the 2003 Report of the Select Committee on Medical Liability Insurance, Florida House of Representatives ( Select Committee Report ), 2 which reads... the quantity of practitioners terminating or reducing practices or the closing of specific hospital services can not be specifically calculated.... (Br. of FPP at 6.) But the report goes on to say it is clear from the record that enough providers have discussed or taken these actions to raise serious concerns about the future of service delivery in many regions or specialties in Florida. Select Committee Report at 5. According to the Florida s Equal Protection Clause because it is has a rational basis. See, e.g., Warren v. State Farm Mut. Auto. Ins. Co., 899 So. 2d 1090, 1095 (Fla. 2005). And it does not violate access to courts because it satisfies Kluger s overpowering public necessity test. See Kluger v. White, 281 So. 2d 1, 4 (Fla. 1973). 2 Available at 4

9 same report, [t]he record of the public hearings... is replete with references by healthcare providers to the detrimental impact of either rising insurance costs or the cancellation of coverage in the current environment with the inability of service providers to secure adequate replacement coverage. Id. FPP also cites the report s characterization of the Task Force Report. 3 (Br. of FPP at 7.) But nothing in the Select Committee Report undermined the Task Force Report; indeed the Select Committee reviewed the comprehensive record of the [Task Force] and [had] available their 345 page report as well as thirteen volumes of supportive materials. Select Committee Report at 9. Regardless, the Task Force Report speaks for itself, and its findings cannot be ignored. The Task Force heard from scores of doctors and other providers who were impacted by the crisis including many who planned to stop practicing or to leave the state. (TFR at ). After receiving extensive testimony, documentation, and other materials, the Task Force expressly found that [t]he concern over litigation and the cost and lack of medical malpractice insurance has caused doctors to discontinue high-risk procedures, turn away high-risk patients, close 3 The Task Force Report (TFR) is the final report issued by the Governor s Select Task Force on Healthcare Professional Liability Insurance. The TFR is available at 5

10 practices, and move out of state. In some communities, doctors have quit delivering babies and discontinued hospital care. (TFR at ) The Select Committee did not rely solely on the Task Force Report. It held hearings throughout the state and received testimony from experts in each of the professional areas impacted by this crisis. Select Committee Report at 4. The hearing records are replete with testimony from service providers, such as Dr. Barbara Sharpe who offered that there will be reduced or non-existent mammography services having a serious impact on breast cancer detection and prevention, each with specific reference to reduced assess and availability of quality care. In each case it is the citizens of Florida who face reduced services from qualified medical service providers. (Id. at 5.) The report also included examples of how Florida s most vulnerable citizens were the most at risk. One surgeon testified that in response to increasing insurance rates, [he] has adjusted his practice to the detriment of the citizens in his area since he no longer will accept Medicaid patients and has dropped participation in any managed care programs. (Id. at 6.) Thus, those least able to pay must seek other providers in an apparently shrinking service provision environment. (Id.) 4 4 This was no isolated experience. The Task Force Report cited a 2002 survey showing that more than 51 percent of responding physicians had discontinued or reduced their treatment of Medicaid patients. TFR at 111. In addition, the Select Committee cited a report from Florida s Agency for Health Care Administration, which found that there are critical shortages of Medicaid participating physicians throughout the state, especially in the areas of emergency medicine, OB/GYN, Pediatrics and Pathology. (Select Committee Report at 6.) 6

11 The Select Committee Report highlights the substantial body of evidence before the Legislature. But that report did not end the Legislature s inquiry; it was followed by much more study, investigation, and evidence-gathering during the regular and special sessions the Legislature devoted to the crisis. Over two days, the Senate Judiciary Committee heard hours of sworn testimony. Former House Speaker John Thrasher testified on behalf of the Florida Hospital Association that Florida is in a serious problem, and it needs a solution right now. See Fla. S. Comm. on Judiciary, Transcript of hearing at 146 (July 14-15, 2003) (available at Fla. Dep t of State, Div. of Library and Info. Servs.) Sandra Mortham testified for Florida Medical Association about huge changes in the patterns of practice, noting that trauma centers are having to bring physicians from out of [state] to remain open, and that high-risk specialty areas... are at crisis level. Id. at And counsel for the Florida College of Emergency Physicians testified to an astronomical increase in [medical malpractice] tort litigation over the past 30 years and affirmed that the tort system was absolutely saturated with medical malpractice claims. Id. at On top of the days of testimony, the Legislature considered more than 1,500 sworn affidavits submitted by Florida physicians attesting that, as a result of the malpractice insurance crisis, they had limited or even abandoned their practices. See Fla. S. Comm. on Judiciary, Affidavits supplied by the Florida 7

12 Medical Association (July 14-15, 2003) (available at Fla. Dep t of State, Div. of Library and Info. Servs.) The affidavits show that, because of the crisis, large numbers of Florida physicians flatly refused to treat a variety of patients, including Medicaid patients, emergency room patients, obstetrics patients, patients with chronic pain, nursing home residents, pregnant women, young patients and children, indigent patients, trauma patients, HMO patients, personal injury patients, and others. See generally id. The legislative record also includes a compilation assembled by the Florida College of Emergency Room Physicians assessing the specific impact of the crisis on emergency room physicians, based on sworn affidavits. Fla. S. Comm. on Judiciary, Responses to supplemental request for additional materials and information relating to the July hearings on medical malpractice (available at Fla. Dep t of State, Div. of Library and Info. Servs.) Among the report s findings, many general surgeons were no longer taking trauma call, the availability of orthopedic surgeons was substantially curtailed, many specialists stopped treating patients under eighteen years of age, the availability of hand surgery was reduced, and hospitals were transferring critical patients by helicopter from Jacksonville to Gainesville for pediatric neurosurgical care because of an unavailability of local services. See generally id. Other patients were transferred farther even hundreds of miles away to receive necessary care. Id. And emergency doctors frequently 8

13 spent their time trying to find specialist care or arranging for transfers, taking time away from treating patients. Id. Physicians were leaving specialties particularly obstetrics. Id. All of this resulted from the crisis that the Legislature sought to address. Id. After exhaustive investigation, the Florida Legislature adopted the findings of the Task Force. The Legislature finds that the Governor s Select Task Force on Healthcare Professional Liability Insurance has established that a medical malpractice crisis exists in the State of Florida which can be alleviated by the adoption of comprehensive legislatively enacted reforms. Ch , 1(10), at 7, Laws of Fla. It further found that Florida was in the midst of a medical malpractice insurance crisis of unprecedented magnitude, that the crisis threatened the well being of Floridians, and that the high cost of medical malpractice claims can be substantially alleviated by imposing a limitation on noneconomic damages in medical malpractice actions. Id. 1(1, 2, 15.) The Legislative record was substantial and is more than sufficient to sustain the reform. This is particularly true given the deferential review this Court must apply a deference Plaintiffs and their amici curaie misapprehend. According to this Court, legislative determinations of public purpose and facts are presumed correct and entitled to deference, unless clearly erroneous. Univ. of Miami v. Echarte, 618 So. 2d 189, 196 (Fla. 1993) (citing State v. Div. of Bond Fin., 495 So. 9

14 2d 183 (Fla. 1986); Miami Home Milk Producers Ass n v. Milk Control Bd., 169 So. 541 (1936)). Thus, even if the Court were to disagree with the Legislature s policy choice, it must defer to the legislative determination unless it was clearly erroneous. This Court applied this deference in upholding a sex offender s involuntary civil detention in Westerheide v. State, 831 So. 2d 93 (Fla. 2002), notwithstanding the fundamental liberty interest at stake. Id. at 96. The offender argued that the possibility of rehabilitative treatment could not justify his detention because there was no evidence suggesting that such offenders could be rehabilitated through treatment. Id. at 101. This Court rejected the argument, even though the relevant scientific community is in disagreement as to the effectiveness of such treatment. Id. In light of these differing opinions, the Legislature s determination that these individuals must be civilly committed for long-term treatment and care is not clearly erroneous and is entitled to deference. Id. (citing Echarte); accord Anderson v. City of Bessemer City, N.C., 470 U.S. 564, (1985) ( Where there are two permissible views of the evidence, the factfinder s choice between them cannot be clearly erroneous. ); Tropical Jewelers Inc. v. Bank of America, N.A., 19 So. 3d 424, 426 (Fla. 3d DCA 2009) ( A factual finding is clearly erroneous when we are left with a definite and firm conviction that the trial court 10

15 has made a mistake. ) (quoting Seminole Tribe of Fla. v. Dep t of Children & Families, 959 So. 2d 761, 765 (Fla. 4th DCA 2007). The United States District Court in this case followed this rationale in rejecting the precise argument Plaintiffs and their amici curiae offer here: In support of their argument, [Plaintiffs] assert the legislative debate on the 2003 legislation exposed a fallacy in the claim that a medical malpractice crisis existed. As the plaintiffs argument makes clear, the legislature debated these issues and considered the evidence before making a rational policy choice. This satisfies the court s inquiry. The Legislature has the final word on declarations on public policy, and the courts are bound to give great weight to legislative determinations of facts. The Legislature s factual and policy findings are presumed correct, and nothing in this record or elsewhere persuades the court otherwise. Estate of McCall v. U.S., 663 F. Supp. 2d 1276, 1301 (N.D. Fla. 2009) (emphasis in original; marks and citation omitted; quoting Echarte). 5 II. POLITICAL OPPOSITION TO THE REFORM DOES NOT UNDERMINE THE REFORM S LEGISLATIVE BASIS. The Legislature s reform certainly had (and has) political opponents. FPP relies heavily on the statements of a handful of Senators who questioned the 5 Other federal district courts agree. In M.D. v. U.S., 745 F. Supp. 2d 1274 (M.D. Fla. 2010), the Court considered the evidence before the Legislature and upheld the caps at issue here. Id. at After finding that the evidence demonstrate[d] that a medical malpractice crisis did, in fact, exist, the Court ultimately elect[ed] to defer to the well supported conclusions of the Task Force and the Legislature that Florida s medical malpractice insurance crisis presented an overpowering public necessity requiring the adoption of the liability caps. Id.; see also Atkisson v. U.S., 2010 WL (S.D. Fla. July 2, 2010) (upholding caps challenged here). 11

16 sufficiency of the record. But those opponents statements do not invalidate the massive legislative record that the Legislature considered. See supra. Otherwise, no contested reform could survive, as political opponents would simply pollute the legislative record to advance subsequent judicial challenges. At least one Senator indicated that was the case here. See App. to Br. of FPP, Tab 7 at 32 (Senator Cowin commenting on debate : So I would like to state these questions were very one-sided, very much set up for a proposal to go to Court so that the attorneys would have some information to challenge this. And I think the line of questioning by the Senator from the 32nd is only to affirm that to get that into the record here so that there be more testimony.... I don t think that we should be using this body, as we have the Judiciary meeting to set a stage to prove one side over the other.... ). Notwithstanding any political debate and there was plenty the relevant question is whether the Legislature s determinations based on the evidence before it were clearly erroneous. They were not, so this Court must accept them. III. THE LEGISLATURE DID NOT IGNORE ALTERNATIVES TO THE ENACTED REFORMS. Finally, Plaintiffs and their amici curiae contend that the Legislature ignored alternatives to the challenged cap. See, e.g., Br. of App. at 37; Br. of FPP at 18. Some complain, for example, that [t]he Legislature did not offer tax credits or even direct subsidies to healthcare providers to help them purchase malpractice 12

17 insurance.... (Br. of FPP at 18.) But alternatives were considered and rejected not ignored. Indeed, as the Task Force Report stated: The Task Force has heard testimony, and received written submissions, proclaiming the potential benefits of other conceivable but untested measures the proponents insist the Florida Legislature try before resorting to a cap on non-economic damages. Florida can no longer afford to continue rely on measurers that have not worked. Nor can it delay action based upon speculation about the viability of any number of conceivable other approaches that opponents of tort reform may dream up to stall the resolution of the crisis. TFR at Although the Task Force heard testimony regarding over 100 proposals for change, (TFR at 147), it ultimately concluded that [i]n spite of all these and other potential alternatives to a cap on noneconomic damages with which [Florida] has experimented over the past 27 years, Florida has not succeeded in solving its crisis of medical malpractice insurance availability or affordability, and the corresponding crisis of access to healthcare. (Id. at 219.) The Task Force detailed the various alternatives to noneconomic damages caps Florida tried to implement since 1975, including patient compensation funds, modifications to statutes of limitations, collateral source rules, periodic payment rules, attorney s fees provisions, insurance reforms, arbitration programs, and others. (Id. at 34-42, 219.) Despite these substantial efforts, [n]one, alone or together with the others, has solved the crisis. (Id. at 219.) Thus, the Task Force concluded, a noneconomic damages cap was the only available remedy that can produce a 13

18 necessary level of predictability and must be a component of the reform. (Id.) It is simply untrue to say that alternatives were not considered. CONCLUSION The crisis that faced the state and the Legislature was real, and there was substantial evidence supporting the Legislature s actions. The Legislature s response to the crisis was appropriate and necessary. This Court must uphold its own precedent and reject Plaintiffs challenge. Respectfully submitted this day of September, 2011, George N. Meros, Jr. Florida Bar No Allen Winsor Florida Bar No GRAYROBINSON PA 301 S. Bronough Street, Suite 600 Tallahassee, Florida Telephone (850) Facsimile (850) george.meros@gray-robinson.com allen.winsor@gray-robinson.com Attorneys for Amici Curiae Florida College of Emergency Physicians and the Florida Orthopaedic Society 14

19 CERTIFICATE OF SERVICE I certify that a copy of the foregoing was furnished by United States Mail on September, 2011, to all persons listed on the attached Service List. Allen Winsor 15

20 CERTIFICATE OF COMPLIANCE WITH FONT REQUIREMENT I certify that the font used in this brief is Times New Roman 14 point and in compliance with Rule 9.210, Florida Rules of Appellate Procedure. Allen Winsor 16

21 SERVICE LIST Henry T. Courtney Sara Courtney-Baigorri COURTNEY LAW FIRM The Merrick Plaza 2199 Ponce de Leon Blvd., Suite 301 Coral Gables, FL Telephone: (305) Counsel for Appellants Stephen S. Poche THE LAW OFFICE OF STEPHEN S. POCHE, P.A N. Eglin Parkway, Suite C-14 Shalimar, FL Telephone: (850) Counsel for Appellants Pamela Adele Moine Florida Bar No United States Attorney s Office 21 East Garden Street, Suite 400 Pensacola, Florida Telephone (850) Counsel for Appellee Robert S. Peck Valerie M. Nannery CENTER FOR CONSTITUTIONAL LITIGATION, P.C th Street, N.W., Suite 520 Washington, DC Telephone: (202) Facsimile: (202) robert.peck@cclfirm.com Counsel for Appellants Daniel J. Lenerz Thomas M. Bondy Tony West Attorneys, Appellate Staff Civil Division, Room 7234 Department of Justice 950 Pennsylvania Avenue, N.W. Washington, DC Counsel for Appellee Mark A. Behrens Cary Silverman Shook, Hardy & Bacon, LLP 1155 F Street, N.W., Suite 200 Washington, DC Telephone (202) Counsel for American Medical Association 17

22 Mark Hicks Florida Bar No Dinah Stein Florida Bar No Hicks, Porter, Ebenfeld & Stein P.A. 799 Brickell Plaza, Suite 900 Miami, Florida Telephone (305) Attorneys for the Florida Medical Association Chris Nuland Florida Bar No Law Offices of Christopher L. Nuland, P.A Riverside Avenue, Suite 115 Jacksonville, Florida Telephone (904) Attorneys for The Florida Chapter of the American College of Physicians, the Florida Chapter of the American College of Surgeons, the Florida Obstetrical-Gynecologic Society, the Florida Society of Plastic Surgeons, the Florida Society of Thoracic and Cardiovascular Surgeons, the Florida Neurosurgical Society, the Florida Society of General Surgeons, the Florida Society of Dermatology and Dermatologic Surgery, and the Florida Gastroenterologic Society William W. Large Florida Bar No Florida Justice Reform Institute 210 South Monroe Street Tallahassee, Florida Telephone (850) Facsimile (850) Attorneys for the Florida Justice Reform Institute Raoul G. Cantero Florida Bar No David Draigh Florida Bar No White & Case LLP 200 S. Biscayne Blvd., Suite 4900 Miami, Florida Telephone (305) Facsimile (305) Attorneys for Coral Gables Hospital, Delray Medical Center, Good Samaritan Medical Center, Hialeah Hospital, North Shore Medical Center, North Shore Medical Center FMC Campus, Palm Beach Gardens Medical Center, Palmetto General Hospital, St. Mary s Medical Center, and West Boca Medical Center 18

23 Arthur J. England, Jr. Florida Bar No Christopher B. Carbot Florida Bar No Greenberg Traurig, P.A. 333 Avenue of the Americas, Suite 4400 Miami, Florida Telephone (305) Facsimile (305) Attorneys for the Florida Hospital Association Fred J. Hiestand California Bar No.: P Street, Suite 110 Sacramento, California Telephone (916) FHiestand@aol.com Attorneys for The Civil Justice Association of California Joel Stephen Perwin Florida Bar No Joel S. Perwin, P.A. 169 East Flagler Street, Suite 1422 Miami, Florida Telephone (305) Attorney for Florida Justice Assn. Cynthia Tunicliff Florida Bar No Pennington, Moore, Wilkinson, Bell & Dunbar 215 South Monroe Street, 2nd Floor Tallahassee, Florida 32301, Telephone (850) cynthia@penningtonlawfirm.com Attorneys for The Safety Net Hospital Alliance of Florida George Christian Texas Bar No.: Christian & Co. 400 W. 15th Street, Suite 400 Austin, Texas Telephone (512) george@thechristianco.com Attorneys for the Texas Civil Justice League Herman Joseph Russomanno Florida Bar No Robert John Borrello Florida Bar No Herman Joseph Russomanno III Florida Bar No Russomanno & Borrello, P.A. 150 West Flagler Street Museum Tower, Penthouse 2800 Miami, Florida Telephone (305) Attorneys for American Bar Assn. 19

24 Lincoln J. Connolly Florida Bar No Rossman Baumberger 44 West Flagler Street 23rd Floor Courthouse Tower Miami, Florida Telephone (305) Attorney for Florida Consumer Action Network and Floridians for Patient Protection John Stewart Mills Florida Bar No Andrew David Manko Florida Bar No The Mills Firm, P.A. 203 North Gadsden Street, Suite 1A Tallahassee, Florida Telephone (850) Attorneys for Neil J. Vidmar, Ph.D. Louis F. Hubener III Florida Bar No Office of the Attorney General Diane G. Dewolf Florida Bar No Office of the Solicitor General The Capitol, PL01 Tallahassee, Florida Telephone (850)