Florida Legislature Increases Requirements for Medical Expert Witnesses – What This Means for the Future of Medical Malpractice Cases

June 28, 2013

Medical LawIn June 2013, Florida Governor Rick Scott signed legislation that places additional restrictions on how Florida courts are allowed to qualify physicians and others who testify in medical malpractice and similarly complex lawsuits. On July 1, 2013, House Bill 7015 (Expert Testimony) and Senate Bill 1792 (Medical Negligence Actions) will become the third and fourth new laws enacting additional witness restrictions passed by Florida Legislature in the last two years.

How judges are allowed to admit a witness to testify as an expert in a case varies by state. However, these new, stricter requirements imposed by the Florida Legislature seem to be setting a pattern that many other states may adopt. HB 7015 will require medical experts to have the same specialty as a physician who is a defendant in medical negligence cases. SB 1792 adopts the “Daubert” standard, which means experts will only be allowed to testify if they can prove to a judge that their theories or techniques have been tested, have been subject to peer review, have a low rate of error and have received general acceptance in the scientific community.

Same Specialty Expert Witness Requirements Help Defendants in Medical Malpractice Cases.

Same specialty requirements are thought to benefit the defendant in a medical liability case. This is based on the belief that an expert witness in the same specialty as the defendant physician will have gone through similar training, may have been taught by some of the same professors out of the same medical textbooks, may be familiar with the same procedures and treatments being used by the physician, and will be more familiar with specialty standards, guidelines or protocols for diagnosing and treating patients.  Therefore, the same-specialty expert will be more likely to be familiar with the actual standard of care for that medical specialty.

In reality, however, many suspect that the intent and the likely effect of this legislation is to remove discretion from judges and make it far more difficult for plaintiffs to obtain an expert witness.

Interpretation of Expert Witness Requirements by Judges Around the Country is Different.

The legal standards routinely used for admissibility of expert witness testimony in a regular case, ordinarily set forth in the rules of evidence and cases interpreting them, are somewhat looser than those for medical malpractice cases. Sometimes, because of this, a judge may be more liberal in what type of expert he or she allows to testify in a case.  I am aware of past cases in which experts from different medical specialties were allowed to testify against a physician who was not in the same specialty or a related specialty. However, there is some overlap in medical specialties and these overlaps appear to be growing.

An American Medical News article lists some examples of an expert witness in a different specialty testifying against a physician.

–  The Michigan Court of Appeals in March 2013, ruled that a neurosurgeon was qualified to testify in a medical liability case against a vascular surgeon.

–  In September 2012, a California appeals court allowed a nurse to contradict a physician expert witness on the cause of an injury (Gabriel Aguayo v. St. Francis Medical Center).

To read the entire American Medical News article, click here.

In General States are Imposing Stricter Expert Witness Requirements.

In medical cases, there are more states passing laws and requiring licensure or certification in the state where the witness testifies. According to American Medical News, more than 30 states have laws that set professional standards for expert witnesses in medical liability cases. Around 24 of those states require expert witnesses to have the same or a similar medical background as the defendant.

More Licensure Complaints Against Expert Witnesses?

It seems to me that there is also a trend developing of more complaints being filed against physicians who testify as expert witnesses in cases.  It appears that this new Florida legislation may be a reaction to this.

On June 7, 2013, for example, during a Florida Board of Medicine disciplinary hearing, board members rejected a recommendation to reprimand a doctor who fraudulently listed expert witness qualifications, according to The Tampa Tribune. Instead the Board unanimously voted to revoke his license to practice medicine. You can read more on this case by clicking here.

However, this is just one example. You can view the minutes of the Florida Board of Medicine’s meetings to find other examples from Florida by clicking here.

Expert Witness Qualifications Not Just an Issue in Medical Negligence Cases.
The issue of expert witness qualifications does not arise solely in medical negligence (civil) cases.  Our firm defends physicians and health professionals who have disciplinary complaints filed against their medical licenses or professional licenses.  I have seen cases in which the regulatory agency (Department of Health) has used expert witnesses in a different specialty to review and criticize the practice of a physician in a different specialty.  Because the rules of evidence and procedure are more relaxed in such administrative cases, often this has been allowed in hearings.

Will the Florida Department of Health (DOH) be Prohibited From Using Experts From Different Specialties in Administrative Cases?

Although the new laws do not specifically state this, the statutes on disciplinary actions against physicians and other licensed health professionals does specifically refer to Florida’s Medical Malpractice Act, Section 766.101, Florida Statutes, for its definition of who is a proper expert to testify. Therefore, it is fully expected that the same criteria for admissibility of expert witness testimony will have to be followed by the Department of Health (DOH) in proving a case against a physician or other health professional.

What the Future Holds.

I predict that in the future we will see:

The restrictions being enacted in different states will make it far more difficult for a plaintiff in a medical malpractice case or a defendant physician in a disciplinary or licensing case to obtain an expert witness to support him or her.  This will prevent many medical negligence claims from being made.  However, it will also hurt those physicians who are being pursued with investigations of complaints against their licenses.

Expert witnesses will be more leery of testifying for a plaintiff in a negligence case.  Expert witnesses will also be more leery of testifying for a physician defending himself or herself in a medical licensure complaint case.

We will see fewer experts allowed in court proceedings.  We will see more administrative complaints and actions brought against physicians who testify as expert witnesses and upset one of the parties.  We will see more discipline against such physicians by different state boards of medicine or health departments.

Comments?

What do you think about the restrictions being put on medical expert witnesses? What do you think the future hold for expert witness requirements? Please leave any thoughtful comments below.