Fla. SC refuses to adopt medical malpractice rule

By Jessica M. Karmasek | Dec 16, 2013

TALLAHASSEE, Fla. (Legal Newsline) -- The Florida Supreme Court last week refused to adopt a procedural rule that would go along with a law that places restrictions on out-of-state expert witnesses testifying in medical malpractice cases.

In July 2011, Gov. Rick Scott signed into law a bill that requires medical professionals not licensed in the state to receive an "expert witness certificate" before testifying in a medical malpractice case.

Scott, a Republican, said the measure would help limit the amount of frivolous lawsuits filed.

This year, state lawmakers passed and Scott signed into law follow-up measures that set additional standards for expert witnesses and allow only those expert witnesses to be able to testify if they have practiced in the same exact specialty that is being litigated.

Now, to be deemed an "expert witness," an individual has to meet basic criteria, including: was his or her theory or technique tested; was his or her theory subject to peer review; what was the rate of error on his or her theory; and is the theory generally accepted in the scientific community?

Scott, along with groups like the Florida Medical Association, contend the additional restrictions are needed and will help improve the state's business climate.

Plaintiffs' attorneys argue that the requirements make it difficult for in-state doctors to testify against other physicians in the state, boosting the need to seek experts outside the state.

The state Supreme Court seemed to side with the plaintiffs' attorneys in its brief, four-page opinion Thursday.

The opinion wasn't a response to a legal challenge to the medical expert law itself, but a ruling on the Florida Bar Board of Governors' vote to not implement a procedural rule.

In a 6-1 decision, the state's high court declined to follow the Florida Bar Code and Rules of Evidence Committee's recommendation to adopt the provision.

Instead, it sided the bar's Board of Governors.

"The Board of Governors voted 34-5 to recommend that the Court reject the Committee's proposal, on the grounds that the provision is unconstitutional, will have a chilling effect on the ability to obtain expert witnesses, and is prejudicial to the administration of justice," the court wrote in its per curiam opinion. "Numerous comments were filed with respect to this proposal, all in opposition to its adoption.

"After hearing oral argument and carefully considering the Committee's recommendation in light of those comments, we decline to follow this recommendation due to the concerns raised."

Only Justice Charles Canady dissented, saying he "would adopt each of the rule amendments recommended by the Code and Rules of Evidence Committee."

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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