When pursuing a medical malpractice case, the success of your case rests on proving that the medical negligence on behalf of a provider, hospital, or pharmacist led to injury or death. One of the pivotal components of proving medical negligence is the expert witness in the case. The expert witness is another physician who can provide a critical medical opinion that will be necessary to pursue the lawsuit pre-trial, and that will provide a basis of proof of negligence through testimony during the trial.
Requirements for Expert Witness in Florida
Florida law states that a medical malpractice victim or representative of the estate of the deceased victim must obtain a medical expert’s written and sworn opinion that the defendant in the case acted negligently and breached a duty of care, which led to the injury or death. This written statement must be provided pre-trial as part of the notice of intent to file suit. If the plaintiff in the case does not provide a statement that complies with the statues in Florida law governing expert witnesses, then the judge can dismiss the case.
An expert witness must be a provider who has practiced in the same field or specialty as the defendant. This witness must also be “duly and regularly engaged” in the practice. In the case of a defendant in emergency care, the expert witness must be a licensed physician with “substantial professional experience within the preceding five years while assigned to provide emergency medical services in a hospital emergency department.” Other practices only require five years prior to the malpractice incident, but the statute for emergency medicine is ambiguous as to when the five-year requirement begins.
Cases Shaping Expert Witness Testimony
A recent case highlights some of the flaws in the Florida law that can disqualify expert witnesses in medical malpractice cases. A trial court dismissed an emergency medicine malpractice case due to the fact that the plaintiff did not obtain an opinion from a qualified physician prior to filing. In this case, the doctor who was used as an expert witness in the pre-trial discovery had practiced emergency medicine but had not been practicing for over five years from the date of filing his expert opinion with the court.
Because the law is ambiguous in respect to the five year requirement, the judge in the case ruled that the five-year rule for emergency medicine should apply to five years from the date of filing the opinion, not five years from the time of the incident, which disqualified this particular doctor and led to the dismissal of the entire lawsuit.
In another case, the Florida Supreme Court ruled in favor of the estate of a woman who died shortly after giving birth to a stillborn baby. As an expert witness, the attorneys for the plaintiff in the case used a Texas-based OB/GYN, who was quickly challenged by the defense for not being “duly and regularly engaged in the practice” of her profession prior to her opinion. In this situation, the expert witness had stepped away from practicing and gone to law school and graduate school in the preceding years.
In the majority opinion from the Supreme Court, it was noted that this particular physician had a 30-year long career, including top positions at two medical institutions, and that was sufficient enough to qualify her as an expert witness. The Supreme Court also warned that she was worried that the defendants were using medical malpractice legal requirements as a “sword” to prevent the plaintiffs from pursuing cases.
At Panter, Panter, and Sampedro, we are dedicated to protecting individuals and families who may have not received the accepted standards of care in a medical setting, which may have led to injury or death. We can assure our clients that we seek out the most respected medical experts for all of our cases, and ensure that our experts meet all of the legal requirements under Florida law. Additionally, we use models, computer simulations, and real-life anatomical illustrations to explain complex medical issues and support our cases against negligent medical professionals.
Kelly, T. (2017, August 16). Recent Case Highlights Flaws in Florida Law Disqualifying Expert Witnesses in Medical Malpractice Cases. Retrieved from https://blog.expertpages.com/expert-opinions/recent-case-highlights-flaws-in-florida-law-disqualifying-expert-witnesses-in-medical-malpractice-cases.htm
Saunders, J., & News Service. (2018, September 17). Court will allow medical-malpractice case in Florida woman’s death after giving birth to a stillborn child. Retrieved from https://orlandoweekly.com/Blogs/archives/2018/09/07/court-will-allow-medical-malpractice-case-in-florida-womans-death-after-giving-birth-to-a-stillborn-child