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Say No to Expert Witness “Certification:” Just Another Cynical Effort to Stifle Victims of Medical Malpractice

Florida Statutes sections 766.102 (12) and 458.3175 seek to create super requirements for experts in medical malpractice cases. The statutory scheme is a controversial, and highly politicized statute that seeks to convert medical expert testimony into the “practice of medicine” in Florida. The ostensible purpose of this statutory labeling is to give the Florida Board of Medicine the power to discipline doctors for what they say under oath in a Florida medical malpractice case. The real purpose, in my experience, is to stifle those experts courageous enough to step forward and testify about medical malpractice. The statute further requires out of state experts to register with the state to subject themselves to discipline in the event the Board of Medicine chooses to take action against them for their testimony.

Without delving too deeply regarding the motivations for this law, suffice it to say that injured patients and their families often seek experts from outside of Florida in order to get an objective opinion about their case. When the expert lives or practices in the same locale as the defendant doctor or hospital, there is understandable reluctance to testify. Further, some of the best and brightest experts live in cities outside of Florida. The statute has a chilling effect on out of state experts who fear discipline, notwithstanding the truthfulness or courage of their convictions.

The statute has multiple constitutional issues, from access to courts, due process, and equal protection to separation of powers. How can a statute give power to a state agency (Board of Medicine) regarding who is and is not qualified to testify in a court room without encroaching on the unique role of the trial court? When it does this, the statute not only has separation of powers problems. The statute evokes cynicism toward our justice system as it denigrates the trial court’s inherent power and ability to deal with wayward and dishonest testimony.

Also, when a statute chills the ability of a plaintiff to obtain an expert, and where no medical malpractice case can be brought without an expert, how can that be anything other than an infringement on the right to freely access our court system? As an aside, in 2006 the Supreme Court of South Carolina recently found a similar statute unconstitutional for many of the reasons expressed here.

This statute will be a source of constitutional litigation in our state. For those of us who believe in the fair and impartial administration of justice, strking this statute down as unconstitutional will be a primary objective. Stay tuned.

For a copy of the South Carolina decision, click here.