Florida Lawmakers Approve Medical Malpractice Reform

By | May 3, 2013

In a victory for medical malpractice insurers and physicians, Florida lawmakers have approved a series of tort reforms that among other things will require expert witnesses testifying against physicians in a malpractice suit to be engaged in the same specialty.

The Florida House of Representatives by a 77-38 margin approved the legislation (SB1792), which originated in the Senate Judiciary Committee.

A priority of the Florida Medical Association, the Florida Chamber Coalition for Legal Reform and the Florida Justice Reform Institute, the legislation is designed to address several areas of the law that proponents said are exposing physicians to legal action and contributing to higher medical malpractice costs.

FMA General Counsel Jeff Scott said the law changes are needed so that physicians can be assured they are granted adequate legal rights as they practice medicine.

“It is important that we promote the highest standard of medical care our state has to offer by holding bad actors responsible for their actions,” said Scott in a statement. “But we must extend the same constitutional rights and fairness that a plaintiff is afforded to physicians.”

The Florida Chamber praised lawmakers and the FMA on the passage of the bill.

“We congratulate the FMA on this victory for our state’s physicians,” said David Hart, executive vice president of the Florida Chamber. “This bill aims to make Florida’s legal environment more friendly for physicians.”

At the center of the legislation is a provision concerning the right of a physician to consult an attorney. A recent Florida Supreme Court Case held that the state’s patient confidentiality statute prevented certain ex parte discussions between attorneys retained by a medical malpractice insurer and physicians involved in a case.

In that case (Hasan v. Garvar SC10-136), Ramsey Hasan sued his dentist, Lanny Garvar, for failing to diagnosis and treat a dental problem that resulted in Garvar suffering a bone infection that allegedly resulted in permanent physical and emotional damage.

Hasan then sought treatment from Jennifer Schaumberg, an oral and maxillofacial surgeon.

After filing suit against Garvar, Hasan later discovered that Garvar and Schaumberg were both insured by OMS National Insurance Co. Although different attorneys represented the two dentists, the attorneys were both retained and paid by OMS.

Further, Hasan discovered that Schaumberg was going to have an ex parte discussion with Garvar’s attorney prior to her deposition. The attorneys claimed the discussion would be limited to questions about the deposition procedures, the potential for legal exposure and how the case could affect the dentist’s board certification.

Justice Fred Lewis, writing for the majority, opined that based on a prior court ruling in (Acosta v. Richter 671 So. 2d 149 FL 1996) it is “pure sophistry” to suggest the ex parte discussion would not disclosed Hasan’s privileged medical information no matter how inadvertently.

Joined by four other justices, Lewis wrote that the insurer could not provide Schaumberg with an attorney, thereby preventing any ex parte discussions.

“OMSNIC’s efforts to foster an environment conducive to inadvertent disclosures of privileged information by providing Schaumberg with an attorney are impermissible,” wrote Lewis.

Chief Justice Ricky Polston, in a minority opinion, noted that the ruling is so broad it would prevent Schaumberg from consulting any attorney, much less one provided by the insurance coverage she paid for.

Polston also took exception with the majority opinion that assumes a physician in Schaumberg’s position would violate patient-physician confidentiality and “tell all” to an insurance company.

“The practicing physicians and the lawyers of Florida deserve more respect as professionals who are faithful to their oaths of ethical conduct,” wrote Polston.

Following Polston’s line of thought, proponents of the legislation claimed that the Hasan case interfered with Schaumberg’s, and potentially other physicians’ in similar circumstances, right to counsel.

Under the new legislation, the insurer may not choose the attorney for the physician, but may recommend other attorneys. That attorney is prevented from providing any information to the insurer other than its bills.

Florida Justice Reform Institute President William Large said overturning the Hasan case would ensure that physicians that may be witnesses would receive the proper legal advice.

“I think this will lead to an overall improvement in medical malpractice cases,” said Large.

Another provision in the legislation is one that requires an expert witness testifying against a physician to be in the same specialty as the physician. Before the law change, the expert witness could be in a same or similar specialty and the courts had the broad authority to decide what constituted a similar specialty.

Large said that led to serious problems, especially in the area of emergency medicine.

For example, Large said, under the current law an emergency room physician might have been forced to treat a patient with a heart attack and allegedly made a mistake only to be confronted in court by a cardiologist who had more training and experience in treating heart attack patients.

Now, Large said, the law change will level the playing field by requiring the opposing expert witness to also be an emergency room physician.

“Because of the change what you will get an honest look and see if someone did deviated from the standard of care,” said Large.

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