Senate Bill 0808

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    Florida Senate - 2000                                   SB 808

    By Senator Sebesta





    20-197-00

  1                      A bill to be entitled

  2         An act relating to expert witness testimony;

  3         amending s. 766.102, F.S.; mandating certain

  4         qualifications for certain witnesses in medical

  5         negligence cases; providing exceptions;

  6         prohibiting certain contingency fees for

  7         certain expert witnesses; providing for a

  8         similar health care provider with regard to

  9         expert witness qualifications; amending s.

10         766.202, F.S.; redefining the term "medical

11         expert"; providing for application; providing

12         an effective date.

13

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

15

16         Section 1.  Section 766.102, Florida Statutes, is

17  amended to read:

18         766.102  Medical negligence; standards of recovery.--

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

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

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

22  health care provider as defined in s. 768.50(2)(b), the

23  claimant shall have the burden of proving by the greater

24  weight of evidence that the alleged actions of the health care

25  provider represented a breach of the prevailing professional

26  standard of care for that health care provider.  The

27  prevailing professional standard of care for a given health

28  care provider shall be that level of care, skill, and

29  treatment which, in light of all relevant surrounding

30  circumstances, is recognized as acceptable and appropriate by

31  reasonably prudent similar health care providers.

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

  2  the prevailing professional standard of care unless that

  3  person is a licensed health care provider and meets the

  4  following criteria:

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

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

  7         1.  Specialize in the same specialty as the party

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

  9         2.  Specialize in a similar specialty that includes the

10  evaluation, diagnosis, or treatment of the medical condition

11  that is the subject of the complaint and have prior experience

12  treating similar patients.

13         (b)  During the 5 years immediately preceding the date

14  of the occurrence that is the basis for the action, the expert

15  witness must have devoted professional time to:

16         1.  The active clinical practice of the same health

17  profession as the health care provider against whom or on

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

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

20  same specialty or a similar specialty that includes the

21  evaluation, diagnosis, or treatment of the medical condition

22  or procedure that is the subject of the action and must have

23  prior experience treating similar patients;

24         2.  The instruction of students in an accredited health

25  professional school or accredited residency program in the

26  same health profession as the health care provider against

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

28  health care provider is a specialist, an accredited health

29  professional school or accredited residency or clinical

30  research program in the same or similar specialty; or

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    Florida Senate - 2000                                   SB 808
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  1         3.  A clinical research program that is affiliated with

  2  an accredited medical school or teaching hospital and that is

  3  in the same health profession as the health care provider

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

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

  6  research program that is affiliated with an accredited health

  7  professional school or accredited residency or clinical

  8  research program in the same or similar specialty.

  9

10  The number of years devoted to professional time may be spent

11  exclusively in any one of the above three areas or

12  cumulatively in any combination of the three areas.

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

14  provider against whom or on whose behalf the testimony is

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

16  the 5 years immediately preceding the date of the occurrence

17  that is the basis for the action, must have devoted his or her

18  professional time to:

19         (a)  Active clinical practice as a general

20  practitioner;

21         (b)  Instruction of students in an accredited health

22  professional school or accredited residency program in the

23  general practice of medicine; or

24         (c)  A clinical research program that is affiliated

25  with an accredited medical school or teaching hospital and

26  that is in the general practice of medicine.

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

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

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

30  practice or instruction of students has knowledge of the

31  applicable standard of care for nurses, nurse practitioners,

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  1  certified registered nurse anesthetists, certified registered

  2  nurse midwives, physician assistants, or other medical support

  3  staff may give expert testimony in a medical negligence action

  4  with respect to the standard of care of such medical support

  5  staff.

  6         (5)  In an action alleging medical negligence, an

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

  8         (6)  Notwithstanding subsection (2), in a medical

  9  negligence action against a hospital or other health care or

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

11  appropriate standard of care as to administrative and other

12  nonclinical issues if the person has substantial knowledge, by

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

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

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

16  or medical facility whose actions or inactions are the subject

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

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

19  cause of action.

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

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

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

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

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

25  health care provider" is one who:

26         1.  Is licensed by the appropriate regulatory agency of

27  this state;

28         2.  Is trained and experienced in the same discipline

29  or school of practice; and

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

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

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

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

  4  experienced in a medical specialty, or holds himself or

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

  6  is one who:

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

  8  and

  9         2.  Is certified by the appropriate American board in

10  the same specialty.

11

12  However, if any health care provider described in this

13  paragraph is providing treatment or diagnosis for a condition

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

15  in the treatment or diagnosis for that condition shall be

16  considered a "similar health care provider."

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

18  relative standard of care for various categories and

19  classifications of health care providers.  Any health care

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

21         1.  Is a similar health care provider pursuant to

22  paragraph (a) or paragraph (b); or

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

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

25  court, possesses sufficient training, experience, and

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

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

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

29  to the prevailing professional standard of care in a given

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

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

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

  2  incident giving rise to the claim.

  3         (7)(3)(a)  If the injury is claimed to have resulted

  4  from the negligent affirmative medical intervention of the

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

  6  breach of the prevailing professional standard of care, show

  7  that the injury was not within the necessary or reasonably

  8  foreseeable results of the surgical, medicinal, or diagnostic

  9  procedure constituting the medical intervention, if the

10  intervention from which the injury is alleged to have resulted

11  was carried out in accordance with the prevailing professional

12  standard of care by a reasonably prudent similar health care

13  provider.

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

15  when the medical intervention was undertaken with the informed

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

17  766.103.

18         (8)(4)  The existence of a medical injury shall not

19  create any inference or presumption of negligence against a

20  health care provider, and the claimant must maintain the

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

22  breach of the prevailing professional standard of care by the

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

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

25  needle, or other paraphernalia commonly used in surgical,

26  examination, or diagnostic procedures, shall be prima facie

27  evidence of negligence on the part of the health care

28  provider.

29         (9)(5)  The Legislature is cognizant of the changing

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

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

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  1  care, and treatment of patients by different health care

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

  3  perform, or administer supplemental diagnostic tests shall not

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

  5  and with due regard for the prevailing professional standard

  6  of care.

  7         (10)(6)(a)  In any action for damages involving a claim

  8  of negligence against a physician licensed under chapter 458,

  9  osteopathic physician licensed under chapter 459, podiatric

10  physician licensed under chapter 461, or chiropractic

11  physician licensed under chapter 460 providing emergency

12  medical services in a hospital emergency department, the court

13  shall admit expert medical testimony only from physicians,

14  osteopathic physicians, podiatric physicians, and chiropractic

15  physicians who have had substantial professional experience

16  within the preceding 5 years while assigned to provide

17  emergency medical services in a hospital emergency department.

18         (b)  For the purposes of this subsection:

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

20  medical services required for the immediate diagnosis and

21  treatment of medical conditions which, if not immediately

22  diagnosed and treated, could lead to serious physical or

23  mental disability or death.

24         2.  "Substantial professional experience" shall be

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

26  emergency medical coverage is provided in hospital emergency

27  departments in the same or similar localities where the

28  alleged negligence occurred.

29         (11)  However, if any health care provider described in

30  subsection (2), subsection (3), or subsection (4) is providing

31  treatment or diagnosis for a condition that is not within his

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  1  or her specialty, a specialist trained in the treatment or

  2  diagnosis for that condition shall be considered a "similar

  3  health care provider."

  4         Section 2.  Subsection (5) of section 766.602, Florida

  5  Statutes, is amended to read:

  6         766.202  Definitions.--As used in ss. 766.201-766.212,

  7  the term:

  8         (5)  "Medical expert" means a person duly and regularly

  9  engaged in the practice of his or her profession who holds a

10  health care professional degree from a university or college

11  and who meets the requirements of an expert witness under s.

12  766.102 and has had special professional training and

13  experience or one possessed of special health care knowledge

14  or skill about the subject upon which he or she is called to

15  testify or provide an opinion.

16         Section 3.  This act shall take effect July 1, 2000,

17  and shall apply to any action filed on or after that date.

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20                          SENATE SUMMARY

21    Mandates specified qualifications for a person who gives
      expert testimony relating to the prevailing professional
22    standard of care in medical negligence cases. Provides an
      exception for a person who has substantial knowledge
23    because of experience or training under certain
      circumstances. Specifies who is a similar health care
24    provider with regard to expert witness qualifications.
      Defines the term "medical expert."
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