Florida Supreme Court Changes Rules for Medical Malpractice Lawsuits

In a change to the Florida Rules of Appellate Procedure which takes effect immediately, the Florida Supreme Court is making it easier for medical providers to deny medical malpractice lawsuits by changing the procedural rules relating to when malpractice cases can be appealed.

Per Florida Politics:

The court rejected a motion by the University of Florida Board of Trustees to dismiss a medical malpractice lawsuit filed against the school. But at the same time, the court issued a related ruling that changes court rules to give appellate courts the ability to review non-final orders that deny a motion to dismiss a medical malpractice claim based on the qualifications of corroborating witnesses.

The website calls this change a “significant one.”

In order to initiate a medical malpractice lawsuit in Florida, specific prerequisites must be fulfilled. One such requirement is obtaining a written opinion from a medical expert (meaning “a person duly and regularly engaged in the practice of his or her profession who holds a health care professional degree from a university or college and who meets the requirements of an expert witness”) that supports the claim of malpractice. However, the law imposes limitations on who can qualify as a medical expert, and these criteria vary depending on the type of healthcare provider involved.

For general practitioners or non-specialists, the expert witness must meet certain qualifications within three years prior to the alleged malpractice incident. These qualifications include having worked or consulted in the same or a similar healthcare profession as the provider being sued, meaning:

A person may not give expert testimony concerning the prevailing professional standard of care unless the person is a health care provider who holds an active and valid license and conducts a complete review of the pertinent medical records and meets the following criteria:

(a) If the health care provider against whom or on whose behalf the testimony is offered is a specialist, the expert witness must:

1. Specialize in the same specialty as the health care provider against whom or on whose behalf the testimony is offered; and

2. Have devoted professional time during the 3 years immediately preceding the date of the occurrence that is the basis for the action to:

a. The active clinical practice of, or consulting with respect to, the same specialty;

b. Instruction of students in an accredited health professional school or accredited residency or clinical research program in the same specialty; or

c. A clinical research program that is affiliated with an accredited health professional school or accredited residency or clinical research program in the same specialty.

(b) If the health care provider against whom or on whose behalf the testimony is offered is a general practitioner, the expert witness must have devoted professional time during the 5 years immediately preceding the date of the occurrence that is the basis for the action to:

1. The active clinical practice or consultation as a general practitioner;

2. The instruction of students in an accredited health professional school or accredited residency program in the general practice of medicine; or

3. A clinical research program that is affiliated with an accredited medical school or teaching hospital and that is in the general practice of medicine.

(c) If the health care provider against whom or on whose behalf the testimony is offered is a health care provider other than a specialist or a general practitioner, the expert witness must have devoted professional time during the 3 years immediately preceding the date of the occurrence that is the basis for the action to:

1. The active clinical practice of, or consulting with respect to, the same or similar health profession as the health care provider against whom or on whose behalf the testimony is offered;

2. The instruction of students in an accredited health professional school or accredited residency program in the same or similar health profession in which the health care provider against whom or on whose behalf the testimony is offered; or

3. A clinical research program that is affiliated with an accredited medical school or teaching hospital and that is in the same or similar health profession as the health care provider against whom or on whose behalf the testimony is offered.

In the recent Carmody case, the petitioner Laurie Carmody filed a case against Shands Teaching Hospital and Clinics, the University of Florida Board of Trustees, neurosurgeon William Friedman and advanced nurse practitioner Yolanda Gertsch-Lapcevic, alleging she was paralyzed by an abscess that developed on her spine following a surgical procedure.

She included in her notices an affidavit from James DeStephens, a doctor specializing in internal medicine and cardiology. Per Florida Politics, “Shands and UF moved to dismiss the complaint on the grounds that DeStephens did not meet the expert witness requirements needed for the suit to continue.”

During hearings, Carmody conceded that DeStephens did not meet the requirements of an expert witness and dropped him from the suit. However, the circuit court denied the University of Florida’s (UF) motion to dismiss the lawsuit completely.

UF appealed by saying the case “departed from essential requirements of the law and caused them irreparable harm. UF lawyers also argued that the changes to Florida’s medical malpractice laws over the years had fundamentally changed previous case law regarding requirements for hearing appeals while the underlying case was still ongoing.”

This is when the Supreme Court agreed to take on the case, deciding on whether it is appropriate to review a circuit order on an expert witness requirement while the lawsuit is still unresolved.

Florida Politics notes:

In its ruling Thursday the majority of the Florida Supreme Court opined that ”while the burden of defending against litigation under ordinary circumstances does not constitute irreparable harm,” the Legislature “elected to treat differently the burden of defending against meritless medical negligence claims” when it passed pre-suit requirements for medical malpractice cases.

The Court states that “only the court” has the power to determine when such reviews are appropriate.

At Hickey Law Firm, we understand the devastation of medical malpractice and we are ready to fight for your right to compensation. To find out how this Supreme Court ruling may affect your case, get in touch with us today by calling our Miami offices or filling out our contact form. We serve clients and families throughout Florida and the United States.