Florida’s medical malpractice law is unique and very difficult to navigate. Before beginning any medical malpractice case, we must obtain an affidavit from a “quailifed” expert stating that malpractice ocurred. With the affidavit in hand and notification to the other side, we can then intitiate Florida’s 3 month medical malpractice pre-suit screening procedure. This 3 month procedure must be completed before any lawsuit can be filed and started in the courtroom.
Read our blog: Basics of a Medical Malpractice Claim
As of October 1 2011, Florida Statutes sections 766.102 (12) and 458.3175 seek to create additional qualification requirements for experts in medical malpractice cases. These are new, stifling and intimidating requirements that Florida does not have for any other expert who plan on testifying in other negligence cases such as auto, trucking, product liability, or aviation cases. We are one of the only states to require these new qualifications which includes obtaining expert witness certificates prior to rendering testimony.
Under the prior law, counsel could retain any qualified physician from anywhere in the country to opine that the physician fell below the standard of care. Such latitude provided monumental support to Florida claimants, who were able to have the top experts in their specialties by their sides to support them both during the presuit investigation process and at trial. Under the new law, an out of state physician expert cannot testify against the standard of care rendered by a Florida licensed physician or dentist unless the expert is either: a) licensed in Florida; or b) obtains an expert witness certificate from the Florida Department of Health.
Currently, the certification application is only available online, and requires that the expert complete the process himself or herself. In addition to the inconvenience of having to fill out the application, holding such a certificate may subject the out of state expert to discipline by the Florida boards of medicine, osteopathic medicine, and dentistry. An expert witness certificate does not authorize a physician to engage in the practice of medicine or dentistry. However, an expert witness certificate is treated as a license in any disciplinary action, and the holder of an expert witness certificate is subject to discipline by the board.
The certification process requires that the expert fill out an application containing the expert’s legal name, mailing address, telephone number, business locations, the names of the jurisdictions where the expert holds an active and valid license to practice medicine or dentistry, and the license number or other identifying number issued to the expert by the jurisdiction’s licensing entity. The expert must also pay a $50 application fee. The Department of Health has 10 days to act on the application. Once approved, the certification is good for two years. The complete certification requirements are
found at Sections 458.3175 (for medicine), 459.0066 (for osteopathic medicine), and 466.005 (for dentistry), Florida Statutes.
Without delving too deeply regarding the motivations for this law, suffice it to say that injured patients and their families often seek experts from outside of Florida in order to get an objective opinion about their case. When the expert lives or practices in the same locale as the defendant doctor or hospital, there is understandable reluctance to testify. Further, some of the best and brightest experts live in cities outside of Florida. The statute has a chilling effect on out of state experts who fear discipline, notwithstanding the truthfulness or courage of their convictions.
The statute has multiple constitutional issues, from access to courts, due process, and equal protection to separation of powers. How can a statute give power to a state agency (Board of Medicine) regarding who is and is not qualified to testify in a court room without encroaching on the unique role of the trial court? When it does this, the statute not only has separation of powers problems.
Also, when a statute chills the ability of a plaintiff to obtain an expert, and where no medical malpractice case can be brought without an expert, how can that be anything other than an infringement on the right to freely access our court system? This statute will be a source of constitutional litigation in our state. Please contact an Edwards & Ragatz, P.A. attorney at 904-399-1609 to obtain further information and recommendations for dealing with the new Florida medical malpractice laws.