Attorneys and expert witnesses should be aware of recent legislation passed in Florida, which deeply divides the legal and medical communities, potentially changes the manner in which medical malpractice lawsuits will be tried and ultimately determined, and affects every litigator, in Florida and beyond.
In April 2013, the Florida Senate approved Senate Bill (SB) 1792, which “requires that expert witnesses called against a defendant doctor practice the exact same kind of medicine and not just be in “similar” fields.” ”Florida Senate Passes Bill on Medical Malpractice Expert Witnesses,” Associated Press (Apr. 15, 2013). Moreover, under the bill’s provisions, any medical provider who has treated a patient and is called to testify is permitted to, “breach patient confidentiality and give attorneys information about a patient’s treatment.” Id.
At issue, and the direct source of clash between proponents and opponents of SB 1792, deals with balancing the issues of shielding expert medical witnesses from malpractice lawsuits, on the one hand, and protecting plaintiffs with legitimate malpractice claims, on the other. See id.
According to one of the bill’s main sponsors, Senator Tom Lee, the bill is merely an an attempt to protect legitimate healthcare providers from being subject to and potentially deemed liable by any “voodoo scientist” who might testify against such providers. See id.
The Senate’s passage of the bill was, in itself, a hot-button issue among the legal and medical communities, and with particular respect to expert witnesses, whose careers often overlap, in the sense that they may be medical experts who testify on any side (or at times, both sides) of a malpractice lawsuit.
However, in May of this year, the House gave the bill its final seal of approval, in a 77-38 vote, so unless Florida Governor Rick Scott vetoes the legislation, Florida attorneys and medical experts should expect a new law and set of rules to abide by during the litigation process and in the courtroom. Jim Saunders, “Florida House Gives Final OK to Medical Malpractice Bill,” The News Service of Florida (May 1, 2013).
Many medical associations claim the bill as a victory, believing that it will “shield doctors from costly lawsuits.” Id. Because the bill requires a more stringent requirement for medical expert witnesses who testify in medical malpractice lawsuits, many organizations, such as the Florida Medical Association (FMA) consider it to be good law. See id.
Perhaps there is some credibility to the FMA’s (and other medical groups’) early but optimistic rallying cries. However, many prominent legal organizations have made important counter-arguments, which also weigh in heavily on both what Governor Scott will ultimately do with SB 1792 and the more general issue of a patient’s right and access to affordable healthcare. The FMA claims that the bill will create fewer medical malpractice suits, which will, in turn, increase a patient’s ability to locate inexpensive healthcare because doctors will be less timid about treating a patient if they feel a lawsuit is not looming in the background. However, if the issue is truly a patient’s right to adequate and quality healthcare, tightening the noose on legitimate medical experts may adversely affect patients’ rights, particularly where doctor-patient confidentiality can be violated under the new law.
The Florida Justice Association (FJA) makes a valid argument: “increased legal restrictions will make it harder for malpractice victims to get compensated for injuries.” Id. Moreover, the FJA asserts that Florida Representative Mark Gaetz, who sponsored the House version of the SB 1792, included an extremely controversial change, allowing defense lawyers in medical malpractice cases to interview patients’ medical providers, even in cases where those doctors are not parties to a particular lawsuit. See id. As Debra Hanley, Executive Director of the FJA explains, “The Gaetz legislation…violates patient privacy, harms doctor/patient relationships and may not even be constitutional.” Id.
It remains to be seen what will happen in newly filed medical malpractice lawsuits in Florida and across the country. However, with both respect to expert witnesses and attorneys, everyone should know what is brewing. Patients must be even more prepared for potential confidentiality breaches, and Florida legislators should be prepared, in the near future for a potential judicial challenge to the bill, based upon constitutional grounds, both state and federal. Medical experts, whether treating physicians, testifying witnesses, or both, must understand what they may or may not be up against, depending on each medical party’s individual relationship to medical malpractice suits. Litigators must be ready to make their clients and experts aware of Florida’s recent changes and make adjustments accordingly.
What does this mean? As always, attorneys on either side must consult clients and experts in medical malpractice cases early and often. However, consultation is not sufficient, on it’s own. Preparation is key. Litigators must be on notice, as to the potential risks they may be getting themselves, their clients, and experts, into, when deciding how to proceed with medical malpractice suits. Defense attorneys should know the prospective advantages SB 1792 offers them, but they should also be prepared for constitutional challenges to the bill and groom their experts for these issues. If all parties pay close attention to trends in Florida and elsewhere, medical malpractice cases may change how they are tried, but no one should expect them to be eliminated altogether.
By: Kat Hatziavramidis, Attorney-at-Law