Expert Witnesses

In medical malpractice cases, experts are critical. Most non-doctors or “laypersons” do not know the “prevailing professional standard of care” for a particular health care provider. Even doctors in other practice areas may not know. So, you have to rely on expert testimony. Medical malpractice can become what’s known as a “battle of the experts.” And to prevail, you must have an expert who is knowledgeable and credible. They must also meet specific statutory qualifications.

Under 766.102(5):

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.

To testify as to the standard of care for medical support staff, the expert should be “[a] physician licensed under chapter 458 or chapter 459 who qualifies as an expert witness under subsection (5) and who, by reason of active clinical practice or instruction of students, has knowledge of the applicable standard of care for nurses, nurse practitioners, certified registered nurse anesthetists, certified registered nurse midwives, physician assistants, or other medical support staff.” § 766.102(6), Fla. Stat.

And to establish the standard of care for hospitals, and health care and medical facilities, “a person may give expert testimony on the appropriate standard of care as to administrative and other nonclinical issues if the person has substantial knowledge, by virtue of his or her training and experience, concerning the standard of care [of the entity that is the subject of the testimony] and which [is] located in the same or similar communities at the time of the alleged act giving rise to the cause of action.” § 766.102(7), Fla. Stat.

As it pertains to “emergency medical services in a hospital emergency department, the court shall admit expert medical testimony only from physicians . . . who have had substantial professional experience within the preceding 5 years while assigned to provide emergency medical services in a hospital emergency department.” § 766.102(9)(a), Fla. Stat. “‘[E]mergency medical services’ means those medical services required for the immediate diagnosis and treatment of medical conditions which, if not immediately diagnosed and treated, could lead to serious physical or mental disability or death.” § 766.102(9)(b)(1), Fla. Stat.

There are a few more important issues about experts in medical malpractice cases:

• “[A]n expert witness may not testify on a contingency fee basis.” § 766.102(10), Fla. Stat.
• An “attorney who proffers a person as an expert witness . . . must certify that such person has not been found guilty of fraud or perjury in any jurisdiction.” § 766.102(11), Fla. Stat.
• Generally, experts must be licensed doctors or have a valid “expert witness certificate.” § 766.102(12), Fla. Stat.
• A “provider’s failure to comply with or breach of any federal requirement is not admissible as evidence in any medical negligence case in this state.” § 766.102(13), Fla. Stat.

If you or anyone you know needs an attorney to seek justice in a medical malpractice case, please call us at 754-400-5150 or contact us online. Let the Law Offices of Evan M. Rosen serve you!