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.

Physicians Meet in Colorado to Discuss Changes to Medical Malpractice Compensation

Earlier this month, the American Academy of Family Physicians (AAFP) held its 2013 State Legislative Conference in Broomfield, Colorado, just outside of Denver. A highlight of the conference was the introduction of a new medical malpractice model currently being floated in the Georgia legislature, which would place all medical malpractice claims into a system similar to workers' compensation, where injured patients would be prohibited from suing their doctor the same way injured workers are prohibited from suing their employer.

Instead of initiating a lawsuit against a negligent or incompetent doctor, an injured patient under the proposed Georgia approach would instead submit a claim to a newly-created state patient compensation system. The medical negligence claim would first go to the system's medical review department which would determine whether a medical injury occurred. If so, then the claim would be turned over to the compensation department, which would make awards according to a compensation schedule based on the type and severity of the injury. Patients who disagree with the outcome could have the decision reviewed by an administrative law judge.

Total compensation under the system would be limited to the total costs of malpractice premiums paid for the year, with 80% allocated to pay claims and the other 20% going to pay the costs of staffing the new bureaucracy and operating the new system.

The model was presented to the AAFP conference by Georgia state senator Brandon Beach and Wayne Oliver, the executive director of Patients for Fair Compensation, which is a 501(c)(4) tax-exempt "social welfare organization." 501(c)(4) entities are allowed to be politically active so long as they spend less than 50% of their revenue on political activity. This group, headed by doctors and representatives of hospitals and other healthcare companies, seeks to eliminate defensive medicine by replacing litigation with an administrative process like the Georgia model.

AAFP is a nationwide advocacy organization of family physicians that lobbies government at the state and national levels on behalf of its members.

Major Piece of Florida Medical Malpractice "Reform" Found to Violate Federal Law

The Florida legislature made several changes to its medical malpractice law earlier this year. One of these changes, which can be found in Florida Statutes 766-1065, went into effect on June 1^st and required an injured plaintiff in a medical malpractice case to authorize the defense attorneys, doctors and insurance adjustors to discuss the case with the plaintiff's other health care providers without the plaintiff or his or her attorney present. This "consent rule" was quickly challenged, and on September 25^th, the provision was struck down in federal court. The judge in Murphy v. Dulay held that the forced consent violated several provisions of the Health Insurance Portability and Accountability Act (HIPAA). Specifically, HIPAA protects personal health information by prohibiting any authorization for release of medical records when the patient's consent is not given freely and without duress. The law also provides a way for patients to object to such disclosure through the courts or an administrative proceeding.

The Florida law required plaintiffs to authorize these "ex parte interviews" as part of the pre-suit notification they are required to give the defendant doctor. The judge held that the law was written too broadly and granted an injunction prohibiting these interviews. Even though the topics to be discussed were supposed to be general and not disclose confidential or protected health information, there would be no way for the patient to know what was being disclosed, according to the court.

This case may still be appealed to the 11^th Circuit Court of Appeals. According to the Florida Medical Association, the law was crafted to avoid conflicts with HIPAA. However, it should be noted that the state of Georgia passed a similar law back in 2005, and that law was nullified by the Georgia Supreme Court in 2007 on the grounds that it was preempted by HIPAA.

Change to Colorado Court Rules Could Improve the Lives of Medical Malpractice Victims

Legal proceedings in the Colorado courts are governed by the Colorado Rules of Civil Procedure (CRCP). Under current rules, the losing party in a civil lawsuit can be required to pay the prevailing party's costs of litigation, other than attorney fees. Even without attorney fees, the amount of other litigation costs can be quite high, particularly in the case of medical malpractice, where the parties must hire doctors as expert witnesses to provide medical expert testimony about the injury and the circumstances surrounding it. The specter of having to pay the other party's costs has caused many victims of malpractice to think twice about embarking on a lawsuit. Even when they do, the rule provides a strong incentive to settle the case for less than it is worth, rather than go to court and possibly lose and be slapped with a bill from the other side for tens of thousands of dollars or more.

This situation was experienced recently by a Boulder family with a child born with Cerebral Palsy, a life-long debilitating condition which may occur during fetal development or during labor. The family lost their lawsuit and was ordered to pay $340,000 in costs, forcing the family into bankruptcy.

A small but important change to the CRCP could change that. The proposed change to CRCP Rule 54(d)(1) (see the analogous Federal rule here) would allow the court to consider the economic circumstances of the losing party before ordering them to pay the costs of the prevailing party. A change like this could save families from bankruptcy and take away some of the disincentive to litigation for low-income individuals or families involved in expensive litigation.

California Medical Malpractice Law May Leap Ahead of Colorado by Decades

A California consumer group is currently circulating a petition to increase the statutory cap on noneconomic damages in medical malpractice cases from the current $250,000 amount to over $1,000,000. If this initiative petition gets on the ballot and is approved by the voters, people injured in California by a doctor's negligence or incompetence would be able to recover many times more than similarly injured people in Colorado.

The group behind the petition, Consumer Watchdog California, says that it merely wants to adjust the damages cap for inflation, something which has never been done since the first passage of the Medical Injury Compensation Reform Act (MICRA) in 1975. Without adjusting for inflation, $250,000 in 1975 is worth only about $58,000 today, small comfort to a person seriously injured by a doctor's medical negligence or incompetence.

Colorado Caps Started Out Behind the Times and Stayed There

When Colorado first put a cap on medical malpractice damages in 1986, it used the $250,000 figure that California had passed 11 years prior. But $250,000 in 1986 was already a paltry equivalence $123,000 in 1975. $250,000 in 1975 was really equal to $509,000 in 1986, according to the Consumer Price Index Inflation Calculator, so using the outdated California sum severely restricted the rights of injured persons to fair compensation.

Colorado has adjusted its damages cap only one time since 1986 - to $300,000 in 2003. At the same time, however, the legislature also brought damages for physical impairment and disfigurement under the cap, overturning a decision to the contrary by the Colorado Supreme Court in Preston v. Dupont and lessening the total compensation one could recover in such cases rather than increasing it.

Under current Colorado law, noneconomic damages are meant to compensate the injured person for their pain and suffering, inconvenience, emotional stress, physical impairment or disfigurement, and impairment of the quality of life, up to a total of $300,000 in most cases. At Paulsen & Armitage, LLC, our attorneys have decades of experience seeking the maximum compensation available for victims of medical malpractice in Colorado. If you have been injured due to a doctor's incompetence or medical neglect in Denver or anywhere statewide, contact Paulsen & Armitage, LLC for a free consultation with one of our experienced Colorado personal injury lawyers.

Doctor Wrongly Diagnosed Man, Telling Him He Had Terminal Brain Cancer

Imagine being told that you have terminal brain cancer and only a few months left to live. How would you respond to such a bleak diagnosis? Montana resident Mark Templin believed the diagnosis and quit his job. He sold his pickup truck, celebrated what he thought would be his last birthday, made prepaid funeral arrangements, and even contemplated suicide. Then he waited for the inevitable. Miraculously, Templin began to feel better, and further medical testing revealed that Templin did not have brain cancer-he had suffered a series of small strokes.

A federal judge in May of 2013 ordered Fort Harrison VA Medical Center to pay Templin nearly $60,000, ruling that Dr. Patrick Morrow’s “negligent failure to meet the standard of care” with misdiagnosing Templin with terminal brain cancer in 2009 caused Templin and his family great emotional distress.

Fortunately for Templin, his misdiagnosis did not result in permanent physical damage or death. Many victims of misdiagnosis are not as fortunate. In a study by the JAMA Internal Medicine, over 150,000 patients a year suffered from a worsened medical condition or fatal medical error as a result of doctor errors. Missed or wrong diagnoses are the cause of more patient injuries and deaths than any other mistakes made by health care providers.

The study suggests that patients should be involved in their medical care by doing the following:

• Come to the doctor’s office prepared to give the doctor all of the relevant information about the nature and timing of your symptoms
• Question your doctor about the diagnosis-ask about other possibilities of what it could be
• If new symptoms develop or symptoms worsen, see your doctor immediately

What Should You Do If You Suspect a Misdiagnosis or Doctor Error?
Patients or their families who have suffered from a misdiagnosed illness or fatal medical error have the right to pursue compensation for their doctor’s negligence. Contact the Colorado medical malpractice attorneys at Paulsen & Armitage, LLC for a free initial consultation and immediate assistance.