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Posted on Mon, Jun. 09, 2003 story:PUB_DESC
Making the message matter most
Doctors, lawyers battle it out over malpractice reform and public opinion


DEMOCRAT SENIOR WRITER
 

Somewhere in the Florida archives are two pink Oxford men's dress shirts that Gov. Reubin Askew had purchased at Sears in Miami and Atlanta 32 years ago, in what was then considered a master stroke of voter manipulation.

Well-financed business groups were spending heavily to convince voters that Askew's corporate income tax constitutional amendment would drive up consumer prices and lead to a personal income tax. So he went on TV and showed that the two shirts cost the same.

"The only difference was, Sears paid the state of Georgia about $500,000 in corporate profits taxes that year and paid us less than $2,000 in an antiquated state franchising fee," Askew recalled last week. "In trial law, that's what we call 'demonstrative evidence' to bring a subject to light."

His low-budget tactic cut through all the economic forecasts and advertising jingles that big business could buy - and Askew's amendment passed with more than 70 percent of the vote. It worked so well, Askew said, the state archives asked for the shirts.

As a high-stakes special session on medical malpractice insurance reform approaches, the aim is the same as it was in Askew's first term - to knock down the other side's message and get voters to contact their legislator.

Political consultants, advertising advisers and public relations experts in Tallahassee generally agree that the Florida Medical Association and some of its major affiliates - including obstetricians, surgeons, emergency physicians and other specialists - are winning the psychological skirmish on malpractice. They say highly publicized physician walkouts in key cities, the mass protest at the Capitol in white lab coats and TV ads about obstetricians not delivering babies are just what the doctors ordered.

"This is a well-coordinated and choreographed national campaign, of which Florida is a key state," said Ron Sachs, a political communications consultant who has handled fights with big tobacco and represented nurse anesthesiologists in recent legislative sessions. His firm, Ron Sachs Communications, does not have a client in the medical-malpractice session.

"The battle for public opinion has been brilliantly fought by the doctors," he said. "All the right buttons have been pushed."

Docs have the upper hand

Cory Tilley, an adviser to Gov. Jeb Bush whose consulting clients now include nursing homes, said the white-coated FMA has a huge image advantage over the pinstriped, tassel-loafered trial lawyers and insurance lobbyists. More people expect to visit doctors than lawyers on a regular basis and, if both went away, which profession would Floridians miss most?

"The doctors have a built-in visibility," Tilley said. "To get any legislation passed, you've got to be able to find ways to communicate an identifiable message to consumers and voters."

Tilley said "it's a little more difficult for trial lawyers" to establish an image as a trusted, indispensable family friend in times of crisis. And the trial lawyers think that's a legal form of malpractice.

"We really think it's unconscionable for the doctors to be using their patients as pawns," said Paul Jess, general counsel of the Academy of Florida Trial Lawyers. "The air-traffic controllers don't walk out when the plane is in flight; the firefighters don't walk out when a building is on fire. We think the doctors are scaring their patients for their own political and financial goals."

Jess said Floridians for Patient Protection, an organization formed by the trial lawyers, will run a publicity campaign to counter the doctors' efforts. His group contends that the insurance industry is hiking malpractice rates because it lost money in the stock market - not because jury verdicts are costing doctors and their insurers more than usual.

Former Leon County Commissioner Gary Yordon, who leads the Zachary Group, said he is branching out from consulting on local campaigns such as Mayor John Marks' successful race this year. In a statewide ad war, Yordon said, legislators themselves feel like casualties when complex issues are reduced to simple stereotypes.

"Legislating is the art of compromise, and I think these kind of tactics just prevent meaningful dialogue and put the Legislature in a position of being unable to come up with creative solutions," Yordon said.

'AstroTurf' attacks

It's a technique called "AstroTurfing" - creating fake "grass-roots" calls and letters on an issue. Similar to the attack ads candidates and special interests run in election years, there have been well-financed fights between cable TV and phone companies, tuition voucher proponents and opponents, "right to work" industries versus labor unions and commercial fishing versus net ban advocates.

But those don't approach the financial and emotional clout of doctors and insurance companies going up against lawyers and nervous patients. Both sides are among the biggest spenders in political campaigns.

Figures compiled by Common Cause, a nonpartisan advocacy group, showed Blue Cross and Blue Shield was the Florida Republican Party's top contributor in the past election cycle - pumping $541,187 into GOP coffers - while the trial lawyers were second only to the teachers union in supporting the Democratic Party, giving $413,042. Individual legislators got tens of thousands more from the professions, scores of companies and their lobbyists.

Targeting the Senate

Strategists on both sides think the Senate - which in the regular session resisted a $250,000 cap on noneconomic damages in medical malpractice lawsuits - will be the battleground of the special session.

That's why doctor walkouts focused on Jacksonville, where Senate President Jim King is from and where Florida Professional Insurance Co. - the state's biggest medical malpractice underwriter - last week announced it would cut premiums 20 percent if the Bush-supported $250,000 cap passed.

But Sens. Ken Pruitt, R-Port St. Lucie, and Nancy Argenziano, R-Dunnellon, said the sophisticated mass-communication campaign backfires with experienced lawmakers.

"These tactics might be effective if you're a newly elected legislator, but usually these groups go over the top," said Pruitt, who has been in the Legislature 13 years. "During the (regular) session, we had some mailings about gambling; the Seminoles put it out to protect their interests, and it must have cost at least $20,000 to saturate my district. We got only 16 letters and a few phone calls, because my constituents know me."

Argenziano, who served six years in the House before her election to the Senate last year, said "real grass-roots" is effective. But an automated phone call or mass-produced e-mail is deceptive, she said, and troubling to legislators who have spent countless hours working on an issue with staff aides and committee hearings.

"Sometimes, I feel sorry for the public who sees these advertisements on TV and call my office to say, 'I don't want my doctor to go away,' but when I ask them questions, they say they don't know - they've just been told we have to do something," Argenziano said. "Frankly, the public should get a little annoyed at being manipulated like that."
 

Contact senior writer Bill Cotterell at (850) 222-6729 or bcotterell@tallahassee.com.

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