Senate Bill sb1446
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Florida Senate - 2001 SB 1446
By Senator Burt
16-784B-01
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; amending s. 766.106, F.S.;
7 requiring claimants to provide a list of
8 treating physicians; providing for presuit
9 unsworn statements of physicians; providing for
10 unsworn statements after service of a complaint
11 upon a defendant physician; amending s.
12 455.667, F.S.; allowing unsworn statements for
13 good cause shown; providing an effective date.
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15 Be It Enacted by the Legislature of the State of Florida:
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17 Section 1. Section 766.102, Florida Statutes, is
18 amended to read:
19 766.102 Medical negligence; standards of recovery.--
20 (1) In any action for recovery of damages based on the
21 death or personal injury of any person in which it is alleged
22 that such death or injury resulted from the negligence of a
23 health care provider as defined in s. 768.50(2)(b), the
24 claimant shall have the burden of proving by the greater
25 weight of evidence that the alleged actions of the health care
26 provider represented a breach of the prevailing professional
27 standard of care for that health care provider. The
28 prevailing professional standard of care for a given health
29 care provider shall be that level of care, skill, and
30 treatment which, in light of all relevant surrounding
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1 circumstances, is recognized as acceptable and appropriate by
2 reasonably prudent similar health care providers.
3 (2) A person may not give expert testimony concerning
4 the prevailing professional standard of care unless that
5 person is a licensed health care provider and meets the
6 following criteria:
7 (a) If the party against whom or on whose behalf the
8 testimony is offered is a specialist, the expert witness must:
9 1. Specialize in the same specialty as the party
10 against whom or on whose behalf the testimony is offered; or
11 2. Specialize in a similar specialty that includes the
12 evaluation, diagnosis, or treatment of the medical condition
13 that is the subject of the complaint and have prior experience
14 treating similar patients.
15 (b) During the 3 years immediately preceding the date
16 of the occurrence that is the basis for the action, the expert
17 witness must have devoted professional time to:
18 1. The active clinical practice of, or consulting with
19 respect to, the same or similar health profession as the
20 health care provider against whom or on whose behalf the
21 testimony is offered and, if that health care provider is a
22 specialist, the active clinical practice of, or consulting
23 with respect to, the same specialty or a similar specialty
24 that includes the evaluation, diagnosis, or treatment of the
25 medical condition that is the subject of the action and have
26 prior experience treating similar patients;
27 2. The instruction of students in an accredited health
28 professional school or accredited residency program in the
29 same or similar health profession in which the health care
30 provider against whom or on whose behalf the testimony is
31 offered, and if that health care provider is a specialist, an
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1 accredited health professional school or accredited residency
2 or clinical research program in the same or similar specialty;
3 or
4 3. A clinical research program that is affiliated with
5 an accredited medical school or teaching hospital and that is
6 in the same or similar health profession as the health care
7 provider against whom or on whose behalf the testimony is
8 offered and, if that health care provider is a specialist, a
9 clinical research program that is affiliated with an
10 accredited health professional school or accredited residency
11 or clinical research program in the same or similar specialty.
12 (3) Notwithstanding subsection (2), if the health care
13 provider against whom or on whose behalf the testimony is
14 offered is a general practitioner, the expert witness, during
15 the 3 years immediately preceding the date of the occurrence
16 that is the basis for the action, must have devoted his or her
17 professional time to:
18 (a) Active clinical practice or consultation as a
19 general practitioner;
20 (b) Instruction of students in an accredited health
21 professional school or accredited residency program in the
22 general practice of medicine; or
23 (c) A clinical research program that is affiliated
24 with an accredited medical school or teaching hospital and
25 that is in the general practice of medicine.
26 (4) Notwithstanding subsection (2), a physician
27 licensed under chapter 458 or chapter 459 who qualifies as an
28 expert under the section and who by reason of active clinical
29 practice or instruction of students has knowledge of the
30 applicable standard of care for nurses, nurse practitioners,
31 certified registered nurse anesthetists, certified registered
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1 nurse midwives, physician assistants, or other medical support
2 staff may give expert testimony in a medical malpractice
3 action with respect to the standard of care of such medical
4 support staff.
5 (5) In an action alleging medical malpractice, an
6 expert witness may not testify on a contingency fee basis.
7 (6) This section does not limit the power of the trial
8 court to disqualify or qualify an expert witness on grounds
9 other than the qualifications in this section.
10 (7) Notwithstanding subsection (2), in a medical
11 malpractice action against a hospital or other health care or
12 medical facility, a person may give expert testimony on the
13 appropriate standard of care as to administrative and other
14 nonclinical issues if the person has substantial knowledge, by
15 virtue of his or her training and experience, concerning the
16 standard of care among hospitals, or health care or medical
17 facilities of the same type as the hospital, health facility,
18 or medical facility whose actions or inactions are the subject
19 of this testimony and which are located in the same or similar
20 communities at the time of the alleged act giving rise to the
21 cause of action.
22 (2)(a) If the health care provider whose negligence is
23 claimed to have created the cause of action is not certified
24 by the appropriate American board as being a specialist, is
25 not trained and experienced in a medical specialty, or does
26 not hold himself or herself out as a specialist, a "similar
27 health care provider" is one who:
28 1. Is licensed by the appropriate regulatory agency of
29 this state;
30 2. Is trained and experienced in the same discipline
31 or school of practice; and
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1 3. Practices in the same or similar medical community.
2 (b) If the health care provider whose negligence is
3 claimed to have created the cause of action is certified by
4 the appropriate American board as a specialist, is trained and
5 experienced in a medical specialty, or holds himself or
6 herself out as a specialist, a "similar health care provider"
7 is one who:
8 1. Is trained and experienced in the same specialty;
9 and
10 2. Is certified by the appropriate American board in
11 the same specialty.
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13 However, if any health care provider described in this
14 paragraph is providing treatment or diagnosis for a condition
15 which is not within his or her specialty, a specialist trained
16 in the treatment or diagnosis for that condition shall be
17 considered a "similar health care provider."
18 (c) The purpose of this subsection is to establish a
19 relative standard of care for various categories and
20 classifications of health care providers. Any health care
21 provider may testify as an expert in any action if he or she:
22 1. Is a similar health care provider pursuant to
23 paragraph (a) or paragraph (b); or
24 2. Is not a similar health care provider pursuant to
25 paragraph (a) or paragraph (b) but, to the satisfaction of the
26 court, possesses sufficient training, experience, and
27 knowledge as a result of practice or teaching in the specialty
28 of the defendant or practice or teaching in a related field of
29 medicine, so as to be able to provide such expert testimony as
30 to the prevailing professional standard of care in a given
31 field of medicine. Such training, experience, or knowledge
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1 must be as a result of the active involvement in the practice
2 or teaching of medicine within the 5-year period before the
3 incident giving rise to the claim.
4 (8)(3)(a) If the injury is claimed to have resulted
5 from the negligent affirmative medical intervention of the
6 health care provider, the claimant must, in order to prove a
7 breach of the prevailing professional standard of care, show
8 that the injury was not within the necessary or reasonably
9 foreseeable results of the surgical, medicinal, or diagnostic
10 procedure constituting the medical intervention, if the
11 intervention from which the injury is alleged to have resulted
12 was carried out in accordance with the prevailing professional
13 standard of care by a reasonably prudent similar health care
14 provider.
15 (b) The provisions of this subsection shall apply only
16 when the medical intervention was undertaken with the informed
17 consent of the patient in compliance with the provisions of s.
18 766.103.
19 (9)(4) The existence of a medical injury shall not
20 create any inference or presumption of negligence against a
21 health care provider, and the claimant must maintain the
22 burden of proving that an injury was proximately caused by a
23 breach of the prevailing professional standard of care by the
24 health care provider. However, the discovery of the presence
25 of a foreign body, such as a sponge, clamp, forceps, surgical
26 needle, or other paraphernalia commonly used in surgical,
27 examination, or diagnostic procedures, shall be prima facie
28 evidence of negligence on the part of the health care
29 provider.
30 (10)(5) The Legislature is cognizant of the changing
31 trends and techniques for the delivery of health care in this
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1 state and the discretion that is inherent in the diagnosis,
2 care, and treatment of patients by different health care
3 providers. The failure of a health care provider to order,
4 perform, or administer supplemental diagnostic tests shall not
5 be actionable if the health care provider acted in good faith
6 and with due regard for the prevailing professional standard
7 of care.
8 (11)(a)(6)(a) In any action for damages involving a
9 claim of negligence against a physician licensed under chapter
10 458, osteopathic physician licensed under chapter 459,
11 podiatric physician licensed under chapter 461, or
12 chiropractic physician licensed under chapter 460 providing
13 emergency medical services in a hospital emergency department,
14 the court shall admit expert medical testimony only from
15 physicians, osteopathic physicians, podiatric physicians, and
16 chiropractic physicians who have had substantial professional
17 experience within the preceding 5 years while assigned to
18 provide emergency medical services in a hospital emergency
19 department.
20 (b) For the purposes of this subsection:
21 1. The term "emergency medical services" means those
22 medical services required for the immediate diagnosis and
23 treatment of medical conditions which, if not immediately
24 diagnosed and treated, could lead to serious physical or
25 mental disability or death.
26 2. "Substantial professional experience" shall be
27 determined by the custom and practice of the manner in which
28 emergency medical coverage is provided in hospital emergency
29 departments in the same or similar localities where the
30 alleged negligence occurred.
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1 (12) However, if any health care providers described
2 in subsection (2), subsection (3), or subsection (4) are
3 providing treatment or diagnosis for a condition that is not
4 within his or her specialty, a specialist trained in the
5 treatment or diagnosis for that condition shall be considered
6 a "similar health care provider."
7 Section 2. Effective October 1, 2001, and applicable
8 to notices of intent to litigate sent on or after that date,
9 subsection (2) and paragraph (a) of subsection (7) of section
10 766.106, Florida Statutes, are amended to read:
11 766.106 Notice before filing action for medical
12 malpractice; presuit screening period; offers for admission of
13 liability and for arbitration; informal discovery; review.--
14 (2) After completion of presuit investigation pursuant
15 to s. 766.203 and prior to filing a claim for medical
16 malpractice, a claimant shall notify each prospective
17 defendant and, if any prospective defendant is a health care
18 provider licensed under chapter 458, chapter 459, chapter 460,
19 chapter 461, or chapter 466, the Department of Health by
20 certified mail, return receipt requested, of intent to
21 initiate litigation for medical malpractice. Notice to each
22 prospective defendant must include a list of all known health
23 care providers seen by the claimant subsequent to the alleged
24 act of malpractice for the injuries complained of and those
25 known health care providers seen by the claimant for related
26 conditions during the 5-year period prior to the alleged act
27 of malpractice. Notice to the Department of Health must
28 include the full name and address of the claimant; the full
29 names and any known addresses of any health care providers
30 licensed under chapter 458, chapter 459, chapter 460, chapter
31 461, or chapter 466 who are prospective defendants identified
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1 at the time; the date and a summary of the occurrence giving
2 rise to the claim; and a description of the injury to the
3 claimant. The requirement for notice to the Department of
4 Health does not impair the claimant's legal rights or ability
5 to seek relief for his or her claim, and the notice provided
6 to the department is not discoverable or admissible in any
7 civil or administrative action. The Department of Health shall
8 review each incident and determine whether it involved conduct
9 by a licensee which is potentially subject to disciplinary
10 action, in which case the provisions of s. 455.621 apply.
11 (7) Informal discovery may be used by a party to
12 obtain unsworn statements, the production of documents or
13 things, and physical and mental examinations, as follows:
14 (a) Unsworn statements.--Any party may require other
15 parties and the claimant's treating physicians listed in the
16 claimant's notice to initiate litigation for medical
17 malpractice to appear for the taking of an unsworn statement.
18 Such statements may be used only for the purpose of presuit
19 screening and are not discoverable or admissible in any civil
20 action for any purpose by any party. A party desiring to take
21 the unsworn statement of any party or treating physician must
22 give reasonable notice in writing to all parties. The notice
23 must state the time and place for taking the statement and the
24 name and address of the party or treating physician to be
25 examined. Unless otherwise impractical, the examination of
26 any party or treating physician must be done at the same time
27 by all other parties. Any party or treating physician may be
28 represented by counsel at the taking of an unsworn statement.
29 An unsworn statement may be recorded electronically,
30 stenographically, or on videotape. The taking of unsworn
31 statements is subject to the provisions of the Florida Rules
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1 of Civil Procedure and may be terminated for abuses. Further,
2 as to the taking of unsworn statements of the claimant's
3 treating physicians, the scope of such inquiry shall be
4 limited to opinions formulated by the treating physicians with
5 respect to the issues of liability and damages set forth in
6 the claimant's notice of intent letter. If a prospective
7 defendant did not take an unsworn statement of a claimant's
8 treating medical physicians as set forth in the claimant's
9 notice to initiate a claim for medical malpractice, an unsworn
10 statement may be taken after suit has been filed, but no later
11 than 90 days from the date of service of the complaint on the
12 defendant. However, in no event may a prospective defendant
13 take more than one unsworn statement of a treating physician.
14 Unsworn statements taken after suit has been filed are
15 inadmissible in the civil action for any purpose by any party.
16 This section does not prohibit the taking of an unsworn
17 statement of a treating physician subsequent to the filing of
18 the civil action upon good cause being shown that the name of
19 any treating physician was not provided in the claimant's
20 notice to initiate a claim for medical malpractice.
21 Section 3. Effective October 1, 2001, and applicable
22 to notices of intent to litigate sent on or after that date,
23 subsection (5) of section 455.667, Florida Statutes, is
24 amended to read:
25 455.667 Ownership and control of patient records;
26 report or copies of records to be furnished.--
27 (5) Except as otherwise provided in this section and
28 in s. 440.13(4)(c), such records may not be furnished to, and
29 the medical condition of a patient may not be discussed with,
30 any person other than the patient or the patient's legal
31 representative or other health care practitioners and
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1 providers involved in the care or treatment of the patient,
2 except upon written authorization of the patient. However,
3 such records may be furnished without written authorization
4 under the following circumstances:
5 (a) To any person, firm, or corporation that has
6 procured or furnished such examination or treatment with the
7 patient's consent.
8 (b) When compulsory physical examination is made
9 pursuant to Rule 1.360, Florida Rules of Civil Procedure, in
10 which case copies of the medical records shall be furnished to
11 both the defendant and the plaintiff.
12 (c) In any civil or criminal action, unless otherwise
13 prohibited by law, upon the issuance of a subpoena from a
14 court of competent jurisdiction and proper notice to the
15 patient or the patient's legal representative by the party
16 seeking such records.
17 (d) For statistical and scientific research, provided
18 the information is abstracted in such a way as to protect the
19 identity of the patient or provided written permission is
20 received from the patient or the patient's legal
21 representative.
22 (e) For purposes of taking an unsworn statement
23 pursuant to s. 766.106(7)(a).
24 Section 4. This act shall take effect October 1, 2001,
25 and shall apply to causes of action accruing on or after that
26 date.
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2 SENATE SUMMARY
3 Provides requirements for expert witness testimony in
actions based on medical negligence. Requires claimants
4 to provide a list of treating physicians. Provides for
unsworn statements of physicians. Provides for unsworn
5 statements after service of a complaint upon a defendant
physician. Allows unsworn statements for good cause.
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