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June 15, 2013
Governor inks expert witness, med mal bills

Gov. Rick Scott signed into law HB 7015, regarding expert testimony, and SB 1792, dealing with medical malpractice litigation June 5.

At the bill-signing ceremony in Jacksonville, the governor was joined by officials with the Florida Chamber of Commerce, the Florida Medical Association, Associated Industries of Florida, and business leaders.

“Every decision that I make comes down to one word — jobs,” Gov. Scott said. “By signing these important bills, we’ll improve the business climate in the Sunshine State, which means more jobs and opportunities for Florida families.”

Expert Testimony
HB 7015 requires that the Daubert standard — based on a U.S. Supreme Court opinion in 1993 — be used in Florida trials instead of the Frye standard, which stems from a 1923 case.

Proponents — including the business community — said Daubert is a better standard that prevents junk science from being used in cases and prevents frivolous lawsuits. Opponents — including state attorneys and plaintiff attorneys — said Daubert can be used as a delaying tactic to impose costs and time delays in cases and can require relitigating accepted scientific evidence and testimony in every case.

State attorneys expressed concerns that every fingerprint, DNA sample, and other expert witness they would seek to use in their cases would be subject to a separate “Daubert hearing,” which would raise costs and slow down the prosecution of cases.

To be deemed an expert witness under the Daubert standard, the individual has to meet basic criteria including: was their theory or technique tested; was their theory subject to peer review; what was the rate of error on their theory; and is this theory generally accepted in the scientific community?

“These are reasonable standards, yet they weren’t practiced in Florida,” Gov. Scott said. “In fact, Florida was the only state in the South that did not use this common sense method for determining who is an expert. By signing HB 7015 into law, we will create a fairer system for Florida families.”

Medical Malpractice
SB 1792 limits the pool of expert witnesses in medical malpractice cases and gives defendants earlier access to the plaintiff’s health-care providers.

One section of the bill amends the expert witness portion of F.S. §766.102. That section specifies that a medical expert witness must be in the same or similar specialty as the defendant health-care provider. The bill amends that requirement to eliminate similar specialties so that only experts in the same specialty can provide expert testimony.

Supporters of the bill said the existing law was too broadly interpreted, citing a case where an emergency room doctor testified about care provided by a cardiologist. They argued witnesses should have the same background and professional perspectives as the defendant.

Critics said the bill will make it unnecessarily hard for plaintiffs to find expert witnesses in some cases, and noted that sometimes a particular ailment can be treated by doctors from several different specialties.

Another section makes it possible for a defendant’s attorneys to contact health-care providers for the plaintiff after a presuit notice in a malpractice case is filed. Existing statutes and case law forbid releasing records except via a subpoena and with notice to the plaintiff.

The bill requires a defendant to provide notice to a plaintiff, who then has 15 days to arrange a meeting with a health-care provider. A representative of the plaintiff can attend the meeting. After 15 days, the defense can interview the provider without the plaintiff’s presence. Follow-up interviews would have to be scheduled within 72 hours.

The health-care provider, however, is not required to submit to the interview.

Supporters of the bill say it levels the playing field because plaintiffs have unlimited access to their health care providers before the suit is filed and the defense doesn’t. They also contend it will lead to quicker settlement of suits if defendants have more information earlier.

[Revised: 06-25-2014]