Florida Enacts New Legislation to Tighten Expert Witness Standards and Clarify Communications with Other Treating Physicians

In its recently concluded 2013 Legislative Session, the Florida legislature passed a new tort reform measure which we view as highly favorable to the defense of medical liability cases. Senate Bill 1792, whose primary authors were Senator Tom Lee (R-Brandon) and Representative Matt Gaetz (R-Fort Walton Beach) was drafted to address three key topics:

• Address the weakness created by the Florida Supreme Court’s 2012 opinion in Hasan v. Garvar case, which prevented an insurer from providing counsel to any non-defendant physician;
• Clarify and equalize the rules for allowing informal (sometimes called “Ex Parte”) meetings and interviews where the defendants and defense counsel can meet with and have open discussions with the plaintiff’s other treating physicians; and
• Tighten the requirements for testifying expert witness from the current “Same or Similar” practice specialty to a “same specialty as defendant physician” standard.

Although the language on the Ex Parte communications with other treaters was weakened somewhat before final passage, we believe the overall bill is favorable to those who defend physician liability cases. The law effectively overrules the limits imposed by the Hasan case and clarifies that insurers may provide their customers with access to counsel when they are called to a deposition or hearing by a plaintiff’s counsel. This clarifies and restores, in part, subject to three limitations, the state of the law as it existed prior to the Hasan decision. The three limitations imposed provide that: (1) an insurer for a treater may not contact a treater to recommend they seek legal counsel in a particular matter; (2) the insurer may not select an attorney for the treater and may only recommend attorneys if the treater contacts the insurer; and (3) a treater's attorney may not disclose to the insurer any information regarding the case other than information pertaining to billing or the categories of work performed.

On the related issue of whether defendants can have informal access to other treating physicians, the new legislation permits such contact to take place. One possible concern is that SB 1792 requires the defendant seeking informal contact to notify the plaintiff’s counsel in advance. While we believe there may be instances where the plaintiff’s counsel will insist on being present for those interviews, the authorization specifically provides that the interviews may be conducted, "without the presence of the Patient or the Patient's attorney." The overall result is an improvement and a needed clarification. Under the new law, defense counsel can conduct interviews to learn what other treaters know about the patient without a formal deposition and without the need to obtain court approval or permission for the contact to take place. Because the recollections and diagnoses of other treaters are often helpful for evaluating a plaintiff’s claims, this particular law change is beneficial to defense of physicians and other health care providers.

The final key change was to “raise the bar” for experts testifying in medical malpractice cases. Prior to SB 1792’s enactment, it was widely observed that the “similar specialty” requirement was being applied loosely in many Florida cases. So for example, a defendant Emergency Room doctor might have to face an expert who was a cardiologist who would have more specific expertise on heart attacks or cardiac care than the broad based training and experience of an emergency physician. Under SB 1792, the expert now must come from the same specialty area as the defendant physician (e.g., the challenging expert for an Emergency Room defendant must now also be an Emergency Room physician). Again, this benefits the defense of cases because it restricts the expert pool to those with the exact same background, training and experience as the defendant facing the allegations.

SB 1792 passed both Chambers by comfortable margins and was signed into law by Florida Governor Rick Scott on June 5, 2013.