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April 1, 2013
Senate med mal measure advances

By Gary Blankenship
Senior Editor

The type of expert who could testify in medical malpractice cases would be limited and med mal defendants and their insurers would be able to conduct ex parte interviews with the plaintiff’s treating health care providers, under a bill approved by the Senate Judiciary Committee on March 18.

The bill also specifies that treating physicians have the right to consult with an attorney, addressing concerns raised by the Supreme Court in Hasan v. Garvar, Case No. 10-1361, decided last December.

Sen. Tom Lee SB 7030 arose out of hearings the committee had on tort issues. Chair Sen. Tom Lee, R-Brandon, said out of several issues discussed in those earlier meetings he decided the bill should focus on three.

The measure raised the ire of Sen. Arthenia Joyner, D-Tampa.

“This is just a continuum of this Legislature to impede citizens’ right to access the courts for injuries that have been perpetrated by the medical profession,” she said.

Noting a study that estimated 98,000 people die annually from preventable medical errors, Joyner added, “Florida has continuously eroded the right of people to access their rights in court for the injuries they have received.”

On expert witnesses, the bill specifies that the expert must come from the same specialty as that practiced by the defendant. Current law provides that the expert must come from the same or “similar” specialty.

Lee said that has led to ambiguities and inconsistent applications. For example, he said the emergency room doctors had been allowed to testify as experts in some types of med mal cases, but not others. (The staff analysis of the bill provided to the committee noted a case where an emergency room doctor was not allowed to testify when the defendant was a cardiologist, but another emergency room doctor was allowed in a case where the defendant was an orthopedic surgeon.)

“The bill essentially attempts to narrow down what is an acceptable witness in a medical malpractice case to make sure it is the same specialty,” Lee said.

As for ex parte communications, current law allows those as part of the presuit investigations required before a medical malpractice action is filed. However, defense lawyers must provide notice and a reasonable opportunity to appear for the plaintiff attorneys when an interview is set for the plaintiff’s health care providers. The proposed bill would remove the notice requirement.

Lee said the bill aims to make it easier for the defense to interview health care providers while also limiting any attempts to get any health care information about the plaintiff that is not related to the suit and which might cause embarrassment to the plaintiff.

In the Hassan case, the court majority said a treating dentist, who was not being sued, could not talk with an attorney provided by an insurance company because that company also provided the lawyer for the dentist who was the defendant in the patient’s medical malpractice case. The majority said that would violate the state’s strong patient privacy laws. The dissent in the case said the majority opinion went too far and would prevent treating doctors from talking to any attorneys.

Lee said he wanted to guarantee that treating health care providers had the right to hire and consult with an attorney. Witnesses before the committee disagreed over whether the opinion banned those providers from consulting with attorneys.

Most of the testimony on the bill came from opponents, with supporters being content to indicate they supported the measure.

Carmen Johns, a Methodist pastor from Jacksonville, said she lost her vision in a spinal fusion surgery in 2001 and under the proposed law she wouldn’t have been able to be compensated for the extra care and equipment she now needs to live her life and pursue her profession.

“Under the current law, I was able to seek and obtain justice. I was not seeking to become a millionaire. I was looking to continue to have a purpose and continue life,” Johns said. “Under the proposed bill, that would not have been possible.”

Stephen Cain, from the Florida Justice Association, noted that a neurosurgeon performed Johns’ fusion, but she used an orthopedic surgeon as an expert witness. Both neurosurgeons and orthopedic surgeons are authorized to do fusions, he noted.

“By having a same specialty requirement, you’re excluding a whole group of physicians who treat the exact same type of conditions, who perform the exact same types of surgeries. There is no difference in care at all,” he said.

Cain said judges, under current law, have the discretion to determine when such doctors can testify as experts.

Gainesville attorney Alan McMichael said the change in ex parte communications would undermine confidence of patients in their doctors if they found out they had been talking to defense lawyers without informing the patients or their attorneys.

“This totally destroys patient privacy and creates the opportunity for witness tampering and witness intimidation,” he said.

Tallahassee attorney Dana Brooks agreed.

“There’s going to be no check on [potential abuses],” she said. “We can’t trust people to do the right thing when we’re not there to see and protect our clients’ interests.”

Tom Dukes, of the Florida Justice Reform Institute, was the only supporter of the bill to testify in detail. He said the expert witness restriction is needed to prevent confusion and unfairness. He argued that the term “similar” specialty is not defined in current law and has been interpreted differently by trial judges.

He also said the proposed law would prevent bringing in a “super specialist” expert witness to testify when the defendant doctor is a general practitioner.

Both, Dukes said, might treat heart conditions, but the GP sees a different category of patient than the specialist and hence has a different approach. It would be unfair to have those actions reviewed by the specialist, who has a different perspective, he contended.

“It [the current law] leads to lots of confusion about who can testify about what, and secondly it leads to circumstances where there are not really fair comparisons for the jury,” Dukes said.

He also argued since a plaintiff has the unlimited ability to consult with his or her current health care providers, that defendants should also have access to those providers.

“The plaintiffs can talk to any treating physician; the defense doesn’t have the same opportunity,” Dukes said. “It doesn’t seem right to limit one’s access.”

Lee said he was satisfied from an extensive Google search of various medical specialties that there are plenty of expert witnesses willing to testify and meet the restrictions in the new bill.

“Is there a real serious problem, or is it just an inconvenience?” he asked.

He also said if defense lawyers seek improper information about plaintiffs in their interviews with the plaintiffs’ current medical providers, then judges can step in and levy sanctions.

“How does the defense get that [impermissible] information into the system that you believe is overreaching . . . without the judge knowing it?” Lee asked.

Sen. Jeremy Ring, D-Margate, like Joyner, expressed reservations about the bill. They were the only two committee members to debate the bill, as the panel cut off discussion in order to vote before the scheduled end of the meeting.

“I’m worried about the privacy, highly worried about the privacy. That’s number one,” Ring said. “Number two, I think we already have enough on the books here and I’m a little concerned we’re even doing more. The sense I get is it’s already difficult enough to bring suit.”

The bill passed by a 6-3, party line vote, with Democrats dissenting. Lee said he hopes the bill will be sent next to the Rules Committee where any necessary changes can be made.

[Revised: 03-16-2014]