As a Florida hospital injury lawyer, I have seen injured patients have their rights chipped away little-by-little. Today, Governor Scott and our Florida Legislature took a wrecking ball to patients’ rights and to the U.S Constitution when he signed into law Florida House Bill 479. I am sure that, unless you are a lawyer who specializes in the representation of injured Florida patients you may find it difficult to comprehend the damage this law will cause. The new law’s scope is so profound I have to blog in parts.
Here is Part One:
Bill 479 creates a mandatory expert witness certification requirement for out-of-state experts that testify in medical malpractice cases. While this seems harmless, in reality most people do not understand how difficult it already is to obtain expert witness help on behalf of patients. Let’s start with Florida Statute §766.203(2)’s requirement that before any doctor or hospital can be sued for malpractice, the patient has to have a sworn affidavit signed by a doctor who is of the same specialty as the potential defendant and has worked in the same specialty for the previous three years. The witness must literally swear that the defendant committed malpractice. Sound simple enough? It’s not. In fact, it is very expensive and nearly impossible to find anyone locally who will testify against a fellow doctor in the same community. Most fear that they will be ostracized and blackballed from getting staff privileges, speaking invitations or pharmaceutical grants. This forces injured patients and their lawyers to search out of the state to find willing experts.
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Now, Governor Scott passed a law that requires one more hurdle. The expert has to be certified by the Florida Department of Health and pay $50.00. I wonder who at the Department of Health is going to be the gatekeeper on this? The new law goes further in that it will allow the imposition of discipline against the expert who provides “deceptive or fraudulent expert testimony related to the practice of medicine.” If it was not difficult enough to find a willing and qualified expert to testify on behalf of an injured patient, now experts are potentially subject to discipline if the Department of Health or the defendant doctor disagree with what they say. After all, isn’t this what juries are for?
It sounds to me that Governor Scott and the Florida legislature would prefer to just give doctors and hospitals complete immunity from accountability for the harm they cause, just like foreign diplomats, governmental contractors or big oil companies. That is until someone injures Governor Scott or his family.
