A new bill passed by the Florida legislature, and expected to be signed by Republican Gov. Rick Scott, would place significant guidelines on the use of expert witnesses in malpractice cases in the state.
The bill requires out-of-state expert witnesses to obtain a certificate from the state health department, and allows the state Board of Medicine to discipline expert witnesses whose testimony is fraudulent, deceptive or misleading.
With the passage of HB 479 in May, Florida will become a friendlier place to practice medicine, according to Jeff Scott, general counsel for the Florida Medical Association (FMA), which represents more 20,000 physicians across the state.
“We’re extremely pleased with the passage of HB 479. It was our bill and we’ve been working on it for ten years. It was opposed by the trial bar, a formidable group. The House has always been friendly toward medical reform, but the Senate, not so much. However, with a number of changes in the Senate this year, we were able to push this bill through and get it approved. What this bill means is that you will now have expert witnesses be held accountable,” says Scott.
Florida is facing a significant physician shortage and the unfriendly medical liability environment is one of the main reasons physicians choose not to practice in Florida, according to Scott.
Requirements on Experts
The bill includes sovereign immunity for physicians who volunteer as team physicians and several other important provisions, including requiring that any medical professional licensed in another state must obtain an expert witness certificate before being able to provide expert testimony in Florida. Expert witnesses who submit pre-suit expert medical opinions are no longer immune from discipline.
HB 479 also gives the Florida Boards of Medicine, Osteopathic Medicine, and Dentistry the specific authority to discipline any expert witness—whether licensed in state or with an expert witness certificate—who are found to have provided deceptive or fraudulent expert witness testimony.
The measure also deletes a provision from current law which prohibits an insurance company from selling a malpractice insurance policy to a physician giving the physician the authority to control settlement decisions. It also excludes from evidence in any medical negligence action any information regarding an insurer’s reimbursement policies or reimbursement determinations.
The law also contains several small “common sense” measures, such as causing volunteer team physicians to be immune from lawsuits when they render care at a school athletic event.
Importance of Expert Testimony
Expert witness testimony plays a key role in the outcome of a medical malpractice cases. It also impacts the way medicine is practiced in Florida. The only way to ensure that expert testimony given by out-of-state experts accurately reflects the actual standard of care is to hold all experts accountable for their testimony, according to the FMA.
To provide this accountability, out-of-state physicians should be required to obtain an expert witness certificate to testify in Florida.
“Unfortunately, in many instances the testimony given by out-of-state physicians does not accurately reflect the prevailing professional standard of care. These experts can generate large fees providing inaccurate testimony with the knowledge that they can do so with impunity, knowing that they will not be held accountable by the law OR by reputation with their local peers,” says Scott.
Dr. Arthur Palamara, a former president of the Florida Vascular Society and current Legislative Chair of Broward County Medical Association, agrees.
“We think this bill is going to be helpful and it will bring fairness to the courts. I’ve been involved in several cases as an expert witness for the defense and the other side can be completely unqualified and it ends up as a contest of whose expert witness is more believable,” explains Palamara.
“When someone gets on the stand in front of six witnesses with no medical knowledge and opines about the treatment a physician chose, and it’s completely uninformed, it just curdles your blood. At least now, the expert will have to adhere to standards in a judicial setting,” says Palamara.
A Problem for Many States
This has been a problem for a number of years across the nation, according to Hans von Spakovsky, senior legal fellow and head of the Civil Justice Reform Initiative at the Heritage Foundation.
“The plaintiff lawyers hire out-of-state experts who don’t know anything about the quality of care in Florida and can be convinced to say whatever the plaintiff attorneys want them to say,” says von Spakovsky.
According to von Spakovsky, Florida’s approach over the past ten years has been generally positive in addressing this problem.
“They’ve done a number of things in Florida the last decade to reform health care and this new law should help. Dade County, which includes Miami and south Florida, is always at the top of the American Tort Reform Foundation’s list of judicial hellholes. For example, in Miami, an OB-GYN doctor pays an average cost of $200,000 annually for medical malpractice insurance. This is huge and the costs go straight to the patients,” says Spakovsky.
“One thing this bill will do is cut down on the number of frivolous and unwarranted medical malpractice cases that are brought each year in Florida,” predicts Spakovsky.
Kenneth Artz ([email protected]) writes from Dallas, Texas.