The Florida Medical Association and Florida Republican Gov. Rick Scott are describing two tort reform bills Scott signed this week as big victories for physicians and for business.
One bill Scott signed was Senate Bill 1792, which requires an expert medical witness to be in the same specialty as the defendant physician. He also signed House Bill 7015, which supporters claim aligns Florida's expert witness standards with those of other states and the federal courts.
In 2003, Florida capped noneconomic damages assessed to physicians at $500,000. This can be raised to $1 million if negligence resulted in death or a “permanent vegetative state."
Along with representatives of the FMA, Scott was joined by members of the Florida Chamber of Commerce and Associated Industries of Florida at a June 5 bill-signing ceremony.
The FMA hailed the Senate bill's provision to give both sides “equal access to medical fact witnesses.” This provision allows for a defendant physician's attorney to speak with other physicians who were treating the same patient who filed the malpractice suit. In the bill description on the legislature's website, this was summarized as “providing that a prospective defendant may conduct an interview with a claimant's treating healthcare provider as a tool of informal discovery.”
Debra Henley, executive director of the state plaintiff lawyers group, the Florida Justice Association, said the House bill on expert testimony standards will increase the length and cost of the litigation. While she agreed that other states are adopting the same standards, she explained that this was because of a concerted state-by-state campaign by the U.S. Chamber of Commerce to get the standards passed into law.
The effort involves replacing the “Frye Standard” for expert testimony set in a 1923 court case and replacing it with the “Daubert Standard” established in the 1993 Daubert v. Merrell Dow Pharmaceuticals ruling by the U.S. Supreme Court.
The Daubert principle requires testimony to be based on tested or peer-reviewed techniques or theories that the witness is applying to the facts of the court case being argued.
“Replacing the antiquated 90-year-old Frye standard with the modern Daubert standard used in all federal courts and a majority of other states will empower Florida judges to vet expert testimony for reliability and accuracy,” Rep. Larry Metz, sponsor of the House bill, said in a release. "This will improve the predictability and fairness of justice in our courts, making Florida a more competitive place to open or grow a business and benefiting all Floridians."
Medical malpractice plaintiff attorneys say it's already difficult to find physicians willing to testify as expert witnesses for plaintiffs in medical malpractice cases, and this provision is likely to make it even more difficult.
On the provision allowing defendants to interview other providers, Henley warned of unintended consequences for physicians, saying it unnecessarily will drag other doctors into malpractice cases.
“This is going to be problematic for the everyday practicing physician who is not a defendant, who is going to get requests from defense lawyers to talk about their patient without their patient or patient's attorney present,” Henley said. “They are going to get bogged down by trying to figure out what they can or can't do and what they should or shouldn't do ethically.”
According to the bill summary on the legislature's website, healthcare providers are not required to submit to these interviews which are given the legal description of ex parte communication—meaning at the request of or for the benefit of only one side or one party.
Henley also suggested that plaintiff attorneys could argue that such interviews are violations of the Health Insurance Portability and Accountability Act of 1996.
In an April 4 letter (PDF) to Florida state Senate President Don Gaetz, Dr. James Madara, CEO and executive vice president of the American Medical Association, endorsed this aspect of the bill.
“The AMA also supports the provisions of S.B. 1792 that expressly permit ex parte interviews of a plaintiff's other treating physicians,” Madara wrote. “This change is not only fundamentally fair, but would lower litigation costs directly by eliminating the need for costly depositions, and indirectly by promoting earlier access to evidence necessary to evaluate and settle claims.”
The FMA lauded the two new laws. “In the past, Florida's hostile medical liability climate made it tough to attract new doctors and keep the good ones that we have, so these reforms are long overdue,” Dr. Alan Harmon, FMA president-elect, said in the release. “By signing SB 1792 into law, the governor has helped the FMA achieve our goal of making it easier for physicians to focus on giving Floridians the best possible medical care.”
FMA President Dr. Vincent DeGennaro wrote in a May 13 letter to Scott that “Florida has a critical challenge attracting new physicians and retaining our homegrown physicians because of the state's dangerous medical liability climate. Further, the system in which medical liability cases are tried is skewed and uncertain.”
Scott said in the news release that “every decision that I make comes down to one word—jobs. By signing these important bills, we'll improve the business climate in the Sunshine State, which means more jobs and opportunities for Florida families.”
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