Leesburg Florida medical malpractice lawyer, Guy S. DiMartino, discusses the Supreme Court's recent failure to adopt Florida Statute 766.102(12) as a rule of evidence.
Governor Scott and the legislature has been chipping away at consumers and patients rights since they have been in office. In 2012, the Florida legislature added section 12 to the expert witness requirements in Florida medical malpractice cases. In essence, the law required expert witnesses to either be licensed in Florida or register with the Board of Medicine as an expert witness in Florida. In practice, this law makes it much harder for injured patients and their families to find an expert witness to support their allegations. Why? Because doctors who belong to the same state associations and practice in the same region are much more hesitant to criticize a colleague. Typically, patients have to go out of state to find expert witnesses.
So with this law, the patient's lawyer has to find an expert out of state and then ask them to register with the Florida Department of Health as an expert witness – which is another hurdle. Well, the Florida bar committee on evidence brought this law to the Florida Supreme Court asking the court to amend the evidence code and make the law a rule of evidence.
In denying the rule, the Supreme Court said:
The Board of Governors voted 34-5 to recommend that the Court reject the Committee's proposal, on the grounds that the provision is unconstitutional, will have a chilling effect on the ability to obtain expert witnesses, and is prejudicial to the administration of justice. Numerous comments were filed with respect to this proposal, all in opposition to its adoption. After hearing oral argument and carefully considering the Committee's recommendation in light of those comments, we decline to follow this recommendation due to the concerns raised.
Accordingly, the Court declines to adopt the legislative changes to the Code or newly created section 766.102(12), Florida Statutes, to the extent they are procedural.
What the Court's failure to adopt the statute means in actual practice I do not yet know because I'm not aware of a patient who has challenged the law as unconstitutional. In order to do that, the patient would have to hire an out of state expert, have the expert refuse to register with the Department of Health, and then the trial court would have to dismiss the action. This could be pretty risky for an injured person.
What are your thoughts about the recent changes to Florida medical malpractice law?