Florida Supreme Court Refuses to Implement Rule Restricting Expert Testimony in Medical Malpractice Cases

Earlier this month, the Florida Supreme Court declined to adopt a rule into the state's Evidence Code that would have limited which doctors could testify as expert witnesses in a medical malpractice case. The new rule was part of SB 1792, a pro-doctor medical malpractice bill passed into law earlier this year.

Medical experts are a critical part of any medical malpractice case. In order to be successful, an injured plaintiff must provide an expert who can testify as to what the appropriate standard of care was in the particular situation and also deliver an opinion that the defendant doctor violated that standard of care. Under Florida law currently, a plaintiff's medical expert can be a doctor practicing in the same specialty or a similar specialty that involves the same medical condition. The judge in a medical malpractice case decides whether or not a proposed expert is qualified before the doctor is permitted to serve as an expert witness.

Under the new rule, which modifies Florida Statute 766.102, a plaintiff's expert must practice the exact same kind of medicine as the defendant doctor. The law also limits the ability of judges to decide whether a proposed doctor is qualified or disqualified from serving as an expert witness.

Both sides of the issue disagree as to the effect of the court's decision not to amend the Florida Evidence Code to incorporate the change in the law. Proponents of the law say that even though the court declined to integrate the rule into the Evidence Code, it did not strike down the law as unconstitutional. Opponents of the law say that the court did exactly that. You can read the court's decision here. Medical malpractice lawyers in the state agree with the Board of Governors of the Florida Bar that to impose the rule would have a chilling effect on the ability to obtain expert witnesses and would be prejudicial to the administration of justice.

Florida Law More Restrictive than Colorado

Colorado statute 13-64-401 allows a doctor to testify as an expert witness so long as the doctor is a licensed physician who can demonstrate training, education, knowledge and experience in the evaluation, diagnosis and treatment of the subject disease or injury, and is substantially familiar with the applicable standards of care and practice related to the incident. Also under the law, a doctor who is an expert in one medical subspecialty cannot testify against a physician in another medical subspecialty, unless the standards of care and practice in the two fields are similar. This law arguably is more flexible than the rule in Florida even before the law was changed.  

Christmas Car Crash in Northeast Denver Leaves One Woman Dead; Other Driver Flees the Scene

It has been reported that a two-vehicle collision occurred in northeast Denver around 12:30 in the morning of December 25^th, when a Ford Explorer collided with a minivan at 51^st Street and Peoria. A woman driving the minivan later died from the collision, with an adult male and two children who were passengers in the vehicle being hospitalized with non-life-threatening injuries. It was also reported that the driver and passenger of the other vehicle fled the scene, with one of them later being arrested and facing charges of hit and run, vehicular assault, and vehicular homicide.

Colorado law (C.R.S. 42-4-1601, 1603) places certain duties on people involved in a car accident, and failure to follow the law can expose violators to both civil and criminal liability. If you are involved in a serious accident, particularly where an injury is involved, you are obligated to alert the police (call 9-1-1) and remain on the scene until law enforcement arrives. You are also required to render aid to an injured person within your abilities, which may include transporting the victim to the hospital or making other arrangements, such as calling 911 and requesting an ambulance. Finally, you are required to exchange information with the other driver, including your name, address, vehicle registration number, and driver's license number on request.

Leaving the scene of an accident can be either a misdemeanor or a felony, depending upon the severity of the accident, with up to twelve years in jail as a punishment for the crime. As to civil liability, a person whose negligence or wrongful conduct caused the accident can be liable for economic and noneconomic damages, including medical expenses, lost wages, and pain and suffering. By leaving the scene and possibly showing disregard for the injured victim, the negligent driver may be exposed to punitive damages as well. The civil case will likely be stayed until the criminal case is concluded, and a conviction for hit and run or leaving the scene of the accident can be powerful evidence used against the defendant in a civil action.

In the event a hit and run driver is never found, the injured victim may still be able to recover against his or her own automobile insurance policy, if the insured was carrying Uninsured Motorist coverage on the policy.