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June 1, 2013
Med mal bill awaits governor’s signature

A bill limiting the pool of expert witnesses in medical malpractice cases and giving defendants earlier access to the plaintiff’s health care providers has cleared the Legislature.

SB 1792 passed the Senate on April 11 by a 27-12 vote and passed the House on May 1 — two days before the end of the session — 77-38.

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 would 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 will make 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 House and Senate bills originally allowed unlimited contact without notice. But as finally passed, 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 said it would level 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 said it would lead to quicker settlement of suits if defendants had more information earlier.

Opponents said the original version would undermine the doctor-patient relationship if patients discovered their health care providers were having ex parte meetings with defense lawyers. They also said the defense could use such meetings to try to intimidate plaintiffs by trying to uncover confidential, personal, or medical information unrelated to the case.

Another section of the bill provides that an insurance company representing a defendant may not contact a health care provider for the plaintiff to suggest that provider may be named as a defendant or needs legal representation. If contacted by the health care provider, the company can recommend lawyers, but those lawyers must not represent the defendant or divulge patient information to the insurance company.

That section was in response to a recent Supreme Court order that said insurance companies could not provide attorneys for the plaintiff’s health care providers. Some critics had interpreted that as a prohibition on those providers obtaining attorneys.

[Revised: 04-13-2014]