House Bill 1681

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    Florida House of Representatives - 1999                HB 1681

        By Representatives Sobel, Jones, Peaden, Lynn, Detert,
    Bush, Barreiro, Cantens, Farkas, Hart and Prieguez





  1                      A bill to be entitled

  2         An act relating to expert witnesses in medical

  3         negligence actions; amending s. 766.102, F.S.;

  4         providing requirements for expert witness

  5         testimony in actions based on medical

  6         negligence; providing an effective date.

  7

  8  Be It Enacted by the Legislature of the State of Florida:

  9

10         Section 1.  Section 766.102, Florida Statutes, 1998

11  Supplement, is amended to read:

12         766.102  Medical negligence; standards of recovery.--

13         (1)  In any action for recovery of damages based on the

14  death or personal injury of any person in which it is alleged

15  that such death or injury resulted from the negligence of a

16  health care provider as defined in s. 408.701(13) s.

17  768.50(2)(b), the claimant shall have the burden of proving by

18  the greater weight of evidence that the alleged actions of the

19  health care provider represented a breach of the prevailing

20  professional standard of care for that health care provider.

21  The prevailing professional standard of care for a given

22  health care provider shall be that level of care, skill, and

23  treatment which, in light of all relevant surrounding

24  circumstances, is recognized as acceptable and appropriate by

25  reasonably prudent similar health care providers.

26         (2)  A person may not give expert testimony concerning

27  the prevailing professional standard of care unless that

28  person is a licensed health care provider and meets the

29  following criteria:

30         (a)  If the party against whom or on whose behalf the

31  testimony is offered is a specialist, the expert witness must:

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  1         1.  Specialize in the same specialty as the party

  2  against whom or on whose behalf the testimony is offered; or

  3         2.  Specialize in a similar specialty that includes the

  4  performance of the procedure that is the subject of the

  5  complaint and have prior experience treating similar patients.

  6         (b)  During the year immediately preceding the date of

  7  the occurrence that is the basis for the action, the expert

  8  witness must have devoted at least 40 percent of his or her

  9  professional time to:

10         1.  The active clinical practice of the same health

11  profession as the health care provider against whom or on

12  whose behalf the testimony is offered and, if that health care

13  provider is a specialist, the active clinical practice of the

14  same specialty or a similar specialty that includes the

15  performance of the procedure that is the subject of the action

16  and have prior experience treating similar patients;

17         2.  The instruction of students in an accredited health

18  professional school or accredited residency program in the

19  same health profession in which the health care provider

20  against whom or on whose behalf the testimony is offered, and

21  if that health care provider is a specialist, an accredited

22  health professional school or accredited residency or clinical

23  research program in the same specialty; or

24         3.  A clinical research program that is affiliated with

25  an accredited medical school or teaching hospital and that is

26  in the same health profession as the health care provider

27  against whom or on whose behalf the testimony is offered and,

28  if that health care provider is a specialist, a clinical

29  research program that is affiliated with an accredited health

30  professional school or accredited residency or clinical

31  research program in the same specialty.

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  1         (3)  Notwithstanding subsection (2), if the health care

  2  provider against whom or on whose behalf the testimony is

  3  offered is a general practitioner, the expert witness, during

  4  the year immediately preceding the date of the occurrence that

  5  is the basis for the action, must have devoted a majority of

  6  his or her professional time to:

  7         (a)  Active clinical practice as a general

  8  practitioner;

  9         (b)  Instruction of students in an accredited health

10  professional school or accredited residency program in the

11  general practice of medicine; or

12         (c)  A clinical research program that is affiliated

13  with an accredited medical school or teaching hospital and

14  that is in the general practice of medicine.

15         (4)  Notwithstanding subsection (2), a physician

16  licensed under chapter 458 or chapter 459 who qualifies as an

17  expert under the section and who by reason of active clinical

18  practice or instruction of students has knowledge of the

19  applicable standard of care for nurses, nurse practitioners,

20  certified registered nurse anesthetists, certified registered

21  nurse midwives, physician assistants, or other medical support

22  staff may give expert testimony in a medical malpractice

23  action with respect to the standard of care of such medical

24  support staff.

25         (5)  In an action alleging medical malpractice, an

26  expert witness may not testify on a contingency fee basis.

27         (6)  This section does not limit the power of the trial

28  court to disqualify an expert witness on grounds other than

29  the qualifications in this section.

30         (7)  Notwithstanding subsection (2), in a medical

31  malpractice action against a hospital or other health care or

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  1  medical facility, a person may give expert testimony on the

  2  appropriate standard of care as to administrative and other

  3  nonclinical issues if the person has substantial knowledge, by

  4  virtue of his or her training and experience, concerning the

  5  standard of care among hospitals, or health care or medical

  6  facilities of the same type as the hospital, health facility,

  7  or medical facility whose actions or inactions are the subject

  8  of this testimony and which are located in the same or similar

  9  communities at the time of the alleged act giving rise to the

10  cause of action.

11         (2)(a)  If the health care provider whose negligence is

12  claimed to have created the cause of action is not certified

13  by the appropriate American board as being a specialist, is

14  not trained and experienced in a medical specialty, or does

15  not hold himself or herself out as a specialist, a "similar

16  health care provider" is one who:

17         1.  Is licensed by the appropriate regulatory agency of

18  this state;

19         2.  Is trained and experienced in the same discipline

20  or school of practice; and

21         3.  Practices in the same or similar medical community.

22         (b)  If the health care provider whose negligence is

23  claimed to have created the cause of action is certified by

24  the appropriate American board as a specialist, is trained and

25  experienced in a medical specialty, or holds himself or

26  herself out as a specialist, a "similar health care provider"

27  is one who:

28         1.  Is trained and experienced in the same specialty;

29  and

30         2.  Is certified by the appropriate American board in

31  the same specialty.

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  1

  2  However, if any health care provider described in this

  3  paragraph is providing treatment or diagnosis for a condition

  4  which is not within his or her specialty, a specialist trained

  5  in the treatment or diagnosis for that condition shall be

  6  considered a "similar health care provider."

  7         (c)  The purpose of this subsection is to establish a

  8  relative standard of care for various categories and

  9  classifications of health care providers.  Any health care

10  provider may testify as an expert in any action if he or she:

11         1.  Is a similar health care provider pursuant to

12  paragraph (a) or paragraph (b); or

13         2.  Is not a similar health care provider pursuant to

14  paragraph (a) or paragraph (b) but, to the satisfaction of the

15  court, possesses sufficient training, experience, and

16  knowledge as a result of practice or teaching in the specialty

17  of the defendant or practice or teaching in a related field of

18  medicine, so as to be able to provide such expert testimony as

19  to the prevailing professional standard of care in a given

20  field of medicine.  Such training, experience, or knowledge

21  must be as a result of the active involvement in the practice

22  or teaching of medicine within the 5-year period before the

23  incident giving rise to the claim.

24         (8)(3)(a)  If the injury is claimed to have resulted

25  from the negligent affirmative medical intervention of the

26  health care provider, the claimant must, in order to prove a

27  breach of the prevailing professional standard of care, show

28  that the injury was not within the necessary or reasonably

29  foreseeable results of the surgical, medicinal, or diagnostic

30  procedure constituting the medical intervention, if the

31  intervention from which the injury is alleged to have resulted

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  1  was carried out in accordance with the prevailing professional

  2  standard of care by a reasonably prudent similar health care

  3  provider.

  4         (b)  The provisions of this subsection shall apply only

  5  when the medical intervention was undertaken with the informed

  6  consent of the patient in compliance with the provisions of s.

  7  766.103.

  8         (9)(4)  The existence of a medical injury shall not

  9  create any inference or presumption of negligence against a

10  health care provider, and the claimant must maintain the

11  burden of proving that an injury was proximately caused by a

12  breach of the prevailing professional standard of care by the

13  health care provider. However, the discovery of the presence

14  of a foreign body, such as a sponge, clamp, forceps, surgical

15  needle, or other paraphernalia commonly used in surgical,

16  examination, or diagnostic procedures, shall be prima facie

17  evidence of negligence on the part of the health care

18  provider.

19         (10)(5)  The Legislature is cognizant of the changing

20  trends and techniques for the delivery of health care in this

21  state and the discretion that is inherent in the diagnosis,

22  care, and treatment of patients by different health care

23  providers.  The failure of a health care provider to order,

24  perform, or administer supplemental diagnostic tests shall not

25  be actionable if the health care provider acted in good faith

26  and with due regard for the prevailing professional standard

27  of care.

28         (11)(a)(6)(a)  In any action for damages involving a

29  claim of negligence against a physician licensed under chapter

30  458, osteopathic physician licensed under chapter 459,

31  podiatric physician licensed under chapter 461, or

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  1  chiropractic physician licensed under chapter 460 providing

  2  emergency medical services in a hospital emergency department,

  3  the court shall admit expert medical testimony only from

  4  physicians, osteopathic physicians, podiatric physicians, and

  5  chiropractic physicians who have had substantial professional

  6  experience within the preceding 5 years while assigned to

  7  provide emergency medical services in a hospital emergency

  8  department.

  9         (b)  For the purposes of this subsection:

10         1.  The term "emergency medical services" means those

11  medical services required for the immediate diagnosis and

12  treatment of medical conditions which, if not immediately

13  diagnosed and treated, could lead to serious physical or

14  mental disability or death.

15         2.  "Substantial professional experience" shall be

16  determined by the custom and practice of the manner in which

17  emergency medical coverage is provided in hospital emergency

18  departments in the same or similar localities where the

19  alleged negligence occurred.

20         Section 2.  This act shall take effect upon becoming a

21  law.

22

23            *****************************************

24                          SENATE SUMMARY

25    Establishes qualification requirements for persons who
      testify as expert witnesses in actions based on medical
26    negligence. (See bill for details.)

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