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Florida Medical Association Fact Sheet
EXPERT WITNESSES IN MEDICAL MALPRACTICE CASES
FMA Contact: Jeff Scott

The current statute (section 766.102, F .8.) specifies the appropriate standard of care in medical malpractice actions as that, which is "recognized as acceptable and appropriate by reasonably prudent similar health care providers."

For non-specialists, this is the "same or similar medical community" standard, while a national standard (board certification) is used for specialists. However, the statute also contains a big loophole that allows the trial judge to let any health care provider testify as an expert if the judge feels that the health care provider possesses sufficient training, experience, and knowledge practicing or teaching in the specialty of the defendant or in a related field of medicine.

This statute allows any licensed expert to testify, irregardless of their licensure status in Florida. This allows experts from out of state to testify in Florida malpractice cases without fear of discipline for fraudulent testimony.

Discussion

Liberal application of the relative standard rule undermines the requirement that the expert be a similar health care provider. The most commonly used exception employed by courts is to allow testimony on the basis of "knowledge" acquired only by reading texts or journals in a given specialty .When opinions are provided on the basis of this "knowledge," a jury can be led to make a finding without credible scientific or medical evidence. In many cases, these "experts" are professional witnesses who are trained to display a personality and demeanor that captures the interest of the jury .Because of this, their presentation actually may be given more weight by a jury than the testimony of a truly qualified expert in the same specialty .

Courts must be more aggressive in determining the qualifications of experts and the credibility of scientific and medical evidence. This proposal would delete the statutory provision allowing courts to use a "relative standard of care" and instead would require the use of experts who are "similar health care providers'. in all cases. Furthermore, this amendment would establish a single definition for a "similar health care provider." The new definition would then define an expert as one whom:

• If testifying against an allopathic or osteopathic physician, is licensed in Florida or holds a newly created expert witness certificate;
• Is licensed by the appropriate state regulatory agency;
• Is trained and experienced in the same medical discipline;
• Actively practices medicine in the same specialty area of practice as the defendant or practices in a similar specialty that includes the performance of the procedure and has experience treating similar patients; and
• During the preceding 5 years has devoted professional time to active clinical practice or consulting, the instruction of students, or clinical research.

Conclusion

These changes will curb significant abuses in the current system and will ensure fairness to the defendant by having similarly qualified experts present medical testimony. In addition, they will help prevent the use of hired "professional witnesses" who are removed from the actual practice of medicine and who may unduly sway a jury without having the requisite qualifications. The requirement that the expert be licensed in Florida or hold an expert witness certificate will ensure that unscrupulous foreign experts are subject to the same discipline that Florida licensees are subject to if they testify fraudulently.

02/09/01

PO Box 10269, Tallahassee, FL 32302-2269 Telephone 1-850-224-6496/1-800-762-0233