When the medical malpractice cap on wrongful death cases was lifted earlier this year in Florida, many considered it a step in the right direction in a state which is known as a difficult in which to bring a malpractice lawsuit. The state’s Supreme Court declared the wrongful death cap unconstitutional, and is currently considering the constitutionality of the personal injury cap, as well as a case regarding retroactive malpractice damages.
While the judiciary arm of Florida’s government is moving in one direction, the state’s executive and legislative branches seem to be moving in another. Florida remains a difficult state in which to file a medical malpractice lawsuit, and a law passed earlier this year only made it more so. Before the law was even passed, the state required "that an injured patient must first obtain a sworn affidavit from a doctor to even initiate a claim, which can be a very expensive and difficult barrier to cross for any lawyers who sue doctors in Florida." The passing of SB1792 earlier this year added the following barriers to citizens engaged in a medical malpractice lawsuit.
Narrow Definition of an Expert Witness
SB1792 has changed the definition of an expert witness to doctors who are in the exact same specialty as the defendant physician. Previously, expert witnesses could be either from the same or a "similar" specialty. This new rule not only makes the pool of expert witnesses much smaller, but "will have a chilling effect effect on the rights of injured patients hoping to find doctors who are both qualified and willing to come to court and testify against members of their own medical community."
Questioning of the Plaintiff’s Subsequent Healthcare Providers
Another change enacted by SB1792 affects the fact-finding period that occurs before the lawsuit is filed. The new law allows the attorneys who are defending the physician(s) to meet and question the plaintiff’s subsequent healthcare providers about his or her treatment, diagnosis, prognosis, and medical records. The first meeting may take place with the plaintiff’s attorney present, but 15 days later can occur without the attorney. The plaintiff’s subsequent healthcare providers are not required to answer these questions, but no longer is this line of questioning considered a breach of doctor-patient confidentiality. "Once a lawsuit is filed, Florida court rules apply as to what can and cannot be asked."