A recent Florida Supreme Court ruling in a medical malpractice lawsuit struck a major blow for victims of negligent healthcare providers. The impact is likely to be that Florida medical malpractice lawsuits are going to:
- Be more expensive.
- Drag on for longer.
- Face additional hurdles to success.
- Shake up legal strategies of both plaintiff and defendant attorneys.
Central to the rule – which was changed outside the Court’s normal process for rulemaking – allows hospitals and healthcare providers being sued for medical malpractice to immediately appeal an order denying a motion to dismiss on grounds that plaintiff’s medical expert witness isn’t adequately qualified to testify against the defendant.
The surprising ruling was something of a quick two-step. First, the Court ruled that the defendant hospital wasn’t allowed to get a rapid re-hearing on its motion to dismiss the claim altogether. But then, the Court turned around and immediately issued another opinion that switched up the game on the issue, amending the Florida Rule of Appellate Procedure to allow for interlocutory (mid-litigation) appeals over the issue of qualified expert witnesses.
In a short dissent, one Supreme Court Justice insisted a change this substantial to Florida medical malpractice case procedure shouldn’t be adopted before it’s weighed by the appropriate committee, which would be responsible for careful review followed by precise recommendations. That’s the way it typically works. But the Court just abruptly side-stepped that procedure. Although it is accepting public comment and requests for oral argument until mid-September, the rule change goes into effect immediately.
Proponents of tort reform are, of course, over-the-moon about this. They’re saying it will help ensure that only truly qualified expert witnesses will have the opportunity to testify against other doctors in court.
But as our Palm Beach medical malpractice lawyers can explain, that take ignores the unequivocal fact that the expert witness vetting process in Florida medical malpractice cases is already quite stringent. Plaintiffs can’t even file the lawsuit until they submit an affidavit of an expert medical witness with the same or substantially similar education, training, and practice as the defendant. The judge has to sign off on that witness before the case even gets started.
In order to be qualified, expert witnesses must have at least 3 years of specific prior experience in which they worked/consulted in the exact same or substantially similar health care profession as the defendant OR taught the same/similar profession to students in an accredited medical school or residency program. They could also be deemed qualified if they were part of a clinical research program in the same or similar field affiliated with a teaching hospital or accredited medical school.
If the defendant is a specialist – like a neurosurgeon or anesthesiologist – the criteria are even stricter. To be a witness in a case with a specialist defendant, the expert must have experience working in the exact same specialty; they can’t simply have “similar” experience.
The point is: It’s NOT easy to be designated a qualified expert witness in a Florida medical malpractice case as it is. Now, defendants are going to have an additional opportunity to immediately challenge the lower court’s approval of a plaintiff’s expert witness. Realistically, they’re going to take that opportunity as often as they can because: What do they have to lose? It’s a chance to get the case tossed before it’s even been heard on its merits. Sure, it might cost them more in legal bills, but they’ve got deep pockets and time to burn (or at least, far more than injured/grieving plaintiffs.) And if the expert witness is rejected, the plaintiff may not get another chance to refile because the statute of limitations for medical malpractice lawsuits is 2 years from the date of injury/injury discovery. Many claims are going to be past that point by the time they reach this phase.
The underlying appeal that prompted the Florida Supreme Court’s rule change was University of Florida Board of Trustees, et al. v. Carmody. The plaintiff alleges she was paralyzed by an abscess that developed on her spine after a surgery conducted by one of the defendants, a neurosurgeon. (Other defendants included an advanced nurse practitioner, the hospital, and the university under which the hospital operates.) In compliance with Florida’s Medical Malpractice Act, plaintiff included in her pre-lawsuit paperwork an affidavit from a licensed doctor specializing in internal medicine, hospital medicine, and cardiology.
Defendants moved to dismiss the case on the grounds this expert witness didn’t meet the necessary requirements to testify against a neurosurgeon. The circuit court held hearings, and plaintiff ultimately conceded the expert witness wasn’t properly qualified to testify against the neurosurgeon, and she dropped him from the lawsuit. However, the trial court declined to grant a defense request to dismiss the case altogether at that point. The defense appealed to the 1st District Court of Appeals, asking for the lower court’s ruling to be quashed because it deviated from basic requirements of the Florida Medical Malpractice Act and caused irreparable harm to the defense. The 1st DCA disagreed and affirmed the lower court’s ruling. So the hospital took it to the Florida Supreme Court.
The primary question for the Florida Supreme Court was whether the appellate court’s review of the trial court’s order on the expert witness was appropriate, despite the fact that the lawsuit was still pending at that point. Usually, this sort of interlocutory appeal is reserved for rare situations when there’s a deviation from critical legal requirements that will put the petitioner at a meaningful disadvantage for the rest of the case – and cause irreparable harm that can’t be corrected on appeal. The general rule is appellate courts have very limited authority to review lower court orders that aren’t yet final.
The defense alleged” irreparable harm” would be done if it were forced to continue defending itself in the case because it’s motion to dismiss was wrongfully denied.
The Florida Supreme Court’s majority opinion stated that normally, the burden of continuing on with a defense against litigation isn’t a form of irreparable harm. However, they reasoned that when state lawmakers passed those strict pre-lawsuit requirements in medical malpractice cases (including the qualified expert witness requirement), they were expressly choosing to treat differently the burden of defense doctors and hospitals bear against meritless medical negligence claims. Judges are required to dismiss medical malpractice claims if they do not meet the pre-suit requirements. Therefore, the Court held, it’s within the Court’s authority to allow appeals of non-final orders on this issue, in order to better align with the legislature’s intent.
Contact the South Florida medical malpractice injury attorneys at Halberg & Fogg PLLC by calling toll-free at 1-877-425-2374. Serving West Palm Beach, Miami, Tampa, Orlando and Fort Myers/ Naples. There is no fee unless you win.
Florida Hospitals Gain Malpractice Edge After Unusual Court Win, July 6, 2023, By Alex Ebert, Bloomberg Law
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