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Does Florida high court ruling signal changes to malpractice law?

As we have discussed here previously, Florida's medical malpractice laws have been a source of legislative and legal debate in recent years. One source of conflict between groups like the Florida Medical Association and trial lawyers has been the restrictions placed on expert witnesses from outside the state who testify in medical malpractice cases. A 2011 law mandated a special certification process for these witnesses. Just this year, the Florida legislature passed a measure that requires that only doctors who work in the same field of medicine as the physician(s) involved in the case can testify as expert witnesses.

Lawyers who work on behalf of plaintiffs in these cases question the constitutionality of restricting who can testify. They also note that the law limits "access to courts" by plaintiffs. They point out that it is often necessary to bring in physicians from out-of-state because Florida doctors can be hesitant to testify against their fellow Florida medical professionals.

Now the Florida Supreme Court has made a ruling in a case regarding Florida's evidence code that is giving those fighting to overturn these restrictions on out-of-state expert medical witnesses reason for optimism. In a 6 to 1 ruling, the court refused to authorize a procedural rule regarding the expert witness law. The justices noted that they had received many comments against the proposal. Among those asking the court to deny it was the Florida Bar Board of Governors, which noted the proposal's unconstitutionality, said it would deter the ability of plaintiffs and their attorneys to find expert witnesses, and be "prejudicial to the administration of justice."

While the FMA points out that the court's recent decision does not change the current restrictions on non-Florida expert witnesses, many trial attorneys believe that this decision, while not a direct ruling on the malpractice law's constitutionality, is nonetheless a good sign. One attorney noted that the issue of the law's constitutionality will likely be decided when the court is asked to rule on a malpractice case that includes one of these witnesses.

While powerful, well-funded groups like the FMA will no doubt continue to lobby for restrictions on malpractice case witnesses, lawyers who represent Florida plaintiffs in these cases will continue to fight to help insure that victims and their families who have been harmed or worse by the negligence or incompetence of medical professionals get the best witnesses, possible.

Source: Jacksonville Business Journal, "Justices question Florida’s medical malpractice law" Jim Saunders, Dec. 13, 2013


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