On December 12, 2013, the Florida Supreme Court issued an opinion expressing its disapproval of a 2011 Florida law that placed restrictions on the ability of expert witnesses to testify in medical malpractice cases. The law allows Florida-licensed medical professionals to present expert testimony in medical malpractice cases, but requires out-of-state medical professionals to get an expert witness certificate before being permitted to testify.
In 2013, the Legislature further approved a measure that restricts who may even testify as a witness in a medical malpractice case, requiring that expert witnesses who are called to testify either for or against a defendant be licensed in the identical, not just similar, medical specialty as that defendant. These limitations, according to the Court, would have “a chilling effect on the ability to obtain expert witnesses.” Certainly, the pool of experts qualified to testify would be restricted by the law’s requirements.
How Might the Law Affect a Malpractice Case?
Imagine a plaintiff, currently a Texas resident, wishes to file suit against her podiatric surgeon for malpractice because he operated on the wrong foot while she was in Florida specifically for her surgery. Her attorneys wish to call one of the most renowned surgeons in the United States, Dr. John Doe of Houston, Texas, to testify against the defendant surgeon.
Based on the Florida law, before Dr. Doe would be allowed to testify, he would have to obtain an expert witness certificate. Otherwise, the plaintiff would be forced to find a Florida doctor to testify against another Florida doctor, and many in-state doctors refuse to testify against other doctors in the same state. Additionally, Dr. Doe would not be able to testify unless he was licensed in the exact same medical specialty (in this case, podiatry) as the defendant surgeon. Even if Dr. Doe would make the best expert witness possible for the plaintiff’s case and is her absolute first choice, if he was not licensed in podiatric surgery, he would be unable to testify.
Essentially, the plaintiff’s right to call witnesses and present her best evidence to a court has been severely limited by the application of the Florida law. This deals a harsh blow to justice, particularly since the burden of proof falls upon the plaintiff to prove malpractice. In a medical malpractice case where expert testimony can be a critical factor in the outcome, one could argue that any barrier to obtaining an expert could be deemed unconstitutional.
Who Determines Who May Testify in a Lawsuit?
Some critics of the Florida law have raised a “separation of powers” argument, indicating that the Legislature exceeded its constitutional authority when it crafted a law telling the court who may and may not testify in a lawsuit. The issue of whether the Florida law presents a substantive versus a procedural rule may be a determining factor in whether the Legislature infringed on the court’s authority. Where substantive rules create and define a particular right, procedural rules regulate the methods for enforcing those rights. Procedural rules involve those rules that control how legal disputes are resolved. In a separation of powers argument, procedural rules fall under the domain of the courts. The Florida Supreme Court’s ruling did not make a ruling on the constitutionality of the law; instead, it only decided that it would not approve the procedural rule.
A ruling on the constitutionality of Florida’s expert witness law in medical malpractice cases seems almost inevitable.
About the Author
Steve Williams is a legal blog writer for Hoffman, Larin and Agnetti PA, South Florida’s premier medical malpractice attorneys. The medical malpractice attorneys at Hoffman, Larin and Agnetti, PA offer a free consultation so that you can learn your legal rights. We have offices throughout south Florida in Dade, Broward and Monroe Counties for your convenience.