Archives

Download a PDF of the Current Issue 2015 Volume 12 Number 3 July- September

Florida Fine Tunes its Definition of “Expert.”

JoAnn Guerrero, Esq., LHRM

Chaires, Brooderson & Guerrero, P.L.

Expert witnesses. What comes to mind? Medical and legal analysts? Talking heads on various news channels? Sadly, the term “expert” has been sullied over time due to a range of issues, including the middle-of-the-night infomercial medical “experts” purporting the ability to lose five hundred pounds in one week versus garden-variety charlatans. In the context of the medico-legal area, however, the value of an “expert” has long been scrutinized due to questionable medical expert reviews, sworn testimony and muddy waters about what is considered “fair game” for opinion. What makes a credible expert witness? Do we imagine the proverbial Marcus Welby? Do we prefer the intellectual appearing physician from a renowned institution? It depends. Most critical, however, is whether the proffered expert is qualified. Is the expert well trained? Is the expert board certified in the area in which he or she is providing testimony? Is the expert actively practicing in the realm of medicine in which he or she is offering testimony? Has he or she been retired for years? While such questions appear basic, they have not always been basic to Florida. Well….until now. Vigorously opposed by the trial lobby, HB 7015 and SB 1792 were enacted on July 1, 2013, having been signed by Governor Rick Scott in June 2013. HB 7015 concludes the use of the Frye standard of 1923, which has been long-followed by the state of Florida. Frye essentially allowed expert witnesses to offer subjective opinions in civil matters and Florida was the only remaining southern state utilizing the standard. Through HB 7015, Florida joins the land of living by adopting the Daubert standard set forth in a 1993 Supreme Court decision. Daubert has been the standard applied in all federal courts and many other states. Under Daubert, and now in Florida, an expert will only be allowed to testify if he or she is able to prove to a judge that the pertinent theory has been tested and has been subject to peer review, has a low rate of error and is generally accepted within the scientific community. Such standard will certainly up the ante as to the nature of the testimony elicited from expert witnesses, arguably resulting in a substantial decrease of expert testimony that cannot be substantiated by means other than “that’s my opinion.” Senate Bill 1792 also presents a significant change for expert witnesses in Florida. Under this new law, expert witnesses may provide testimony in a medical malpractice action regarding the prevailing standard of care if they have practiced in the same specialty as the defendant physician. Prior to the enactment of this law, Florida allowed expert witnesses to provide testimony if they had similar specialties or practiced in the same general field. Thus, s. 766.102, Fla. Stat. has been amended as follows, in part:

(5) A person may not give expert testimony concerning the prevailing professional standard of care unless the person is a health care provider who holds an active and valid license and conducts a complete review of the pertinent medical records and meets the following criteria:

(a) If the health care provider against whom or on whose behalf the testimony is offered is a specialist, the expert witness must:

1. Specialize in the same specialty as the health care provider against whom or on whose behalf the testimony is offered; and

2. Have devoted professional time during the 3 years immediately preceding the date of the occurrence that is the basis for the action to:

a. The active clinical practice of, or consulting with respect to, the same

specialty;

b. Instruction of students in an accredited health professional school or accredited residency or clinical research program in the same specialty; or

c. A clinical research program that is affiliated with an accredited health

professional school or accredited residency or clinical research program in the same specialty.

(b) If the health care provider against whom or on whose behalf the testimony is offered is a general practitioner, the expert witness must have devoted professional time during the 5 years immediately preceding the date of the occurrence that is the basis for the action to:

The active clinical practice or consultation as a general practitioner;

The instruction of students in an accredited health professional school or accredited residency program in the general practice of medicine; or

A clinical research program that is affiliated with an accredited medical school or teaching hospital and that is in the general practice of medicine.

See s. 766.102, Fla. Stat. Was all of this really necessary? These new pieces of legislation come on the tails of the requirement that an out-of-state expert witness obtain an expert witness certificate from the Florida Department of Health. Such law, now codified as 458.3175, Fla. Stat., is applicable to all causes of action accruing on or after October 1, 2011. It requires that the expert complete an application containing the expert’s legal name, contact information, jurisdictions where licensed with license number and pay a $50 application fee. Following approval, the certification lasts for two years. Most significantly, however, while obtaining the certificate does not permit the expert to practice medicine in Florida, an expert witness certificate shall be treated as a license in any disciplinary action, and the holder of an expert witness certificate shall be subject to discipline by the board. Of course, this law certainly was unpleasant for experts, for both plaintiff and defendant alike. Not only would they need to deal with the hassle of obtaining the certificate every two years, they now would also potentially be subject to discipline in Florida, where they are not licensed. 1 The trial attorney lobby has passionately argued that SB 1792 will only further deprive worthy plaintiffs of having their day in court. However, it is likely that plaintiffs with meritorious claims will not experience any problems. As it relates to requiring medical experts to practice in the same specialty as a physician defendant, such just makes good sense. Its very premise is to ensure the likelihood that the expert will be well versed in the prevailing standard of care in the medical specialty at issue. What does this mean? Well, many of us have seen cases where an expert provides testimony regarding care and treatment provided by a defendant physician, when the expert has never provided such care to a patient. Or much worse. One recent case regarding this very issue was considered by the Florida Board of Medicine at its meeting on June 7, 2013. At that time, the Florida Board of Medicine rejected a proposed reprimand of a Florida emergency room physician who was board certified in emergency medicine and frequently serves as an expert witness. It was alleged that the physician signed two (2) affidavits in 2010 stating that he was board certified in emergency medicine, though his certification had lapsed the year before. Despite the 74 year old physician’s statement that such was an unintentional oversight that resulted from sloppy paperwork, the Florida Board of Medicine unanimously voted to revoke the physician’s license to practice medicine in Florida. Though the physician stated that there was no intent to deceive any party, a Board member argued that the physician lied under oath. Therefore, based upon an expert witness law passed in 2011 which punishes medical expert witnesses who lie under oath, the Board rendered its decision, revoking the physician’s license and his ability to serve as an expert witness in Florida. The physician can currently continue to practice, pending his ongoing appeal of the Board’s decision to the First District Court of Appeal. Given the nature of the work of our firm, we are noticing an appreciable uptick of investigations and matters relating to expert witness testimony. More specifically, we have noticed an increased number of investigations by certification boards and the Department of Health, based upon complaints by plaintiffs, defendant physicians and attorneys that the testifying expert provided false, inappropriate or unsubstantiated testimony. Such investigations are quite serious in nature, particularly as they may result in discipline of the testifying expert’s state medical license or loss of board certification. It is anticipated that these laws may potentially cause a resultant decrease in medical malpractice cases due to the inability to find a supportive expert. It is further expected that there will be a concomitant increase in Department of Health investigations as patients seek an avenue to address their complaints against providers, which may actually negatively impact physicians who will experience increased discipline. Ultimately, however, it would not be surprising that such legislation will frighten potential experts from providing expert testimony. 1. It should be noted, however, that the Florida Supreme Court issued a per curiam opinion on December 12, 2013, at which time it considered the recommendation by the Florida Bar Code and Rules of Evidence Committee that the statutory provision be adopted as a rule of procedure to the extent that it is procedural. The Board of Governors voted 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. Following oral arguments and consideration of the Committee’s recommendation, the Florida Supreme Court declined to follow the recommendation and declined to adopt the legislative changes to the Code or newly created s. 766.102(12), Fla. Stat., to the extent that they are procedural. See In Re: Amendments to the Florida Evidence Code. SC 13-98. It will be interesting to see how the law will be challenged in a civil or administrative area against an expert witness who has failed to secure a certificate prior to offering testimony.