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April 30, 2013
Lawmakers debate proposed changes to med mal statutes

By Gary Blankenship
Senior Editor

A Florida Senate plan to raise the requirements for those pursuing medical malpractice lawsuits got a rough reception in a House committee, which struck one key provision as members questioned another major section of the bill.

The House Judiciary Committee approved HB 827 12-6 on April 9, but only after an amendment was added striking a part of the bill that restricted the type of expert witness who could be used at trial.

And some committee members who voted for the bill said they still have reservations about another part that would allow defense attorneys to have ex parte access to health care professionals treating a patient who files a presuit notice of intent to initiate a medical malpractice case.

Current law allows defense attorneys to interview those health care providers, but only after notifying the plaintiff’s attorneys and giving them the opportunity to be present.

Matt Gatez Rep. Matt Gaetz, R-Shalimar, sponsored HB 827 and said it was the companion to SB 1792 (formerly SB 7030), which had cleared its Senate committees and been sent to the upper chamber’s floor.

The day after the House committee acted, the full Senate considered SB 1792 and modified its ex parte provisions, although it defeated an attempt to change the expert witness section.

Gaetz said the bill has three purposes.

One is to address questions raised by a Supreme Court ruling last December on the right of a non-defendant treating physician in a malpractice case to hire a lawyer.

The second part, Gaetz said, specifies that an expert witness must be from the same specialty as the defendant doctor or health care provider. Current state law, he said, requires the expert be from the same or a similar specialty.

The third section allows lawyers for a defendant health care provider to have ex parte access to the subsequent treating doctors and facilities once a presuit notice has been filed in a malpractice case.

Rep. Heather Fitzenhagen, R-Ft. Myers, filed an amendment striking parts of the bill that required the expert witness be from the same specialty and not allowing testimony from those from a similar field of practice.

It sparked a vigorous debate.

Fitzenhagen, a lawyer, argued that doctors from different specialties may be qualified to treat the same condition, citing as an example that a dermatologist and oncologist may both treat skin cancer and hence could serve as expert witnesses.

Miami attorney Stuart Ratzan said the American Medical Association has a model malpractice statute and it allows expert testimony from specialists in similar fields. He also argued that treatment is based on the disease and that several different specialists may be qualified to treat a specific malady.

“Doctors are treating diseases and the standard of care for a disease is the same, no matter what [specialty] you call yourself,” Ratzan said.

Former Sen. John Grant, representing the Florida Justice Association, noted that Oklahoma has a presuit notification system like Florida and adopted a law limiting the pool of expert witnesses like the restriction proposed in the bill. That resulted, he said, in the Oklahoma Supreme Court throwing out the entire presuit screening system as unconstitutional, because it limited access to the courthouse.

But Rep. Larry Metz, R-Groveland, said Florida is a huge state with a large medical community and finding an expert in the same specialty should not be a problem.

“Right now, it’s too loose, and there’s no reason if a medical malpractice suit is filed in Florida they can’t find a health care provider in the same specialty,” he said.

The amendment passed 10-8. Gaetz said when the bill reaches the House floor, he will seek to substitute the Senate version, which he expects will have the tougher standard on expert witnesses.

Rep. Charles McBurney, R-Jacksonville, said he would vote for the amended bill, but he still had concerns about the ex parte communications, which he hoped would be resolved before the measure reaches the House floor.

Gaetz said, “We all believe in doctor-patient confidentiality and the doctor-patient privilege, but that privilege is intended to be a shield, not a sword. . . . Rep. McBurney believes that someone puts their medical condition at issue when they file a lawsuit and when they intend to depose and put certain witnesses on the stand. I believe someone puts their medical condition at issue slightly sooner, when they file their notice of intent to sue. Maybe we can find common ground and compromise.”

Gaetz argued allowing access sooner would lead to a quicker settlement, which would benefit injured patients.

Grant, in his extensive comments on the bill, argued it was not needed, because changes made by the Legislature in 2003, when he was still serving, have worked. He said the number of medical malpractice claims and suits have dropped dramatically, insurance rates are down, medical malpractice insurance in Florida is highly profitable compared to other states and other lines of insurance in the state, and the number of doctors has grown since 2003 by 11,000, or about 20 percent.

He also said that the ex parte communications that would be permitted in the bill are banned in 40 other states to protect patient privacy.

“If you or a member of your family had been injured, would you want the insurance company to send a lawyer, without your knowledge, to talk to any physician who ever treated you and review your medical records, without any transcription being taken of that interview or you or your lawyer being present? How would you feel?” Grant asked.

Although Grant was speaking at the House committee, that concern was evident when SB 1792 reached the floor of the upper chamber. Sen. Anitere Flores, R-Miami, offered an amendment that would require the defendants to give plaintiffs notice of health care providers they wished to interview. The plaintiff would then have 15 days to schedule a meeting where the plaintiff would be able to attend. If the meeting could not be arranged within 15 days, then the defendant could meet ex parte with the health care providers.

If the defendant wants a follow up meeting with those providers, a 72-hour notice must be given to the plaintiff to allow an opportunity to attend.

Lee initially expressed concern about the amendment, but after checking with backers of his bill he said that he supported it, and it was approved by a voice vote. The bill was then sent for third and final reading on the Senate floor, which had not occurred as this News went to press.

Aside from expert witnesses and ex parte interviews, Gaetz said the bill also addressed concerns by the Supreme Court’s opinion in Hasan v. Garvar, Case No. 10-1361, decided last December.

In the case, the court majority said a treating dentist in a malpractice case, 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 defendant dentist in that 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.

On the Senate floor, Lee added an amendment to his bill clarifying that in those cases the insurance company could not initiate contact with a provider and offer to provide representation. Instead, it would be up to the health care professional to request to meet with an attorney.

[Revised: 04-09-2014]