As if Florida's doctors and hospitals did not already hold enough of an advantage over injured patients, the latest legislation sitting on Governor Scott's desk will make it even more difficult for claimants to win a medical malpractice case. SB 1792 quietly passed the Senate on April 11 by a 27-12 vote, and the House on May 1, by 77-38.
If signed, the new law will redefine who can qualify as an expert witness in a case against a doctor. Florida's Malpractice Act requires that an injured patient must first obtain a sworn affidavit from a doctor to even initiate a claim, which can be a very expensive and difficult barrier to cross for any lawyers who sue doctors in Florida. Most doctors are afraid and reluctant to testify against another doctor who practices in their community and medical specialty.
Currently Florida Statute §766.102 defines an expert witness as a healthcare provider who practices in the "same or similar" specialty. For example, I have cases pending against neurosurgeons for an alleged botched back surgery. Our expert witness is an orthopedic surgeon who treats the same condition by doing the same kinds of procedures, but has different training. The proposed bill would permit only doctors who are specialists in the exact same specialty to testify against another physician. That restriction will have a chilling effect on the rights of injured patients hoping to find doctors who are both qualified and willing to come to court and testify against members of their own medical community. Supporters of this change in the law claim forcing plaintiffs to find expert witness opinions from doctors who share the exact same background, education, and training will encourage early resolution of claims.
Another radical change contained in the bill would permit a defendant doctor's or hospital's lawyers to request a meeting with a plaintiff's treating physician -- initially with the patient's attorney present, but after 15 days without the lawyer, to discuss the claimants' medical records, diagnosis, and prognosis, and even recommend a defense lawyer. Effectively this means that a medical malpractice defense lawyer will be able to confer with a treating doctor and discuss the confidential medical history of a patient as well as the defense's strategy. Having sued doctors and hospitals across the State of Florida for over 20 years, I believe this invades the doctor-patient relationship and has significant potential to influence the testimony and opinions that a treating physician may have in a particular case.
Based upon Governor Scott's history of signing laws in favor of the health and insurance industry, I have little hope he will veto the bill. These changes are yet another example of how seemingly minuscule tweaking of a statute can create a tectonic shifting of power by stripping away the legal rights of the weakest members of our community and handing them over to the rich and powerful.