FLORIDA - EXPERT WITNESS (Physician as)

January 1, 2008

Florida state laws and regulations that affect your medical practice

1. Who may give expert testimony concerning the prevailing professional standard of care in a medical negligence case?

A. If the health care provider against whom or on whose behalf the testimony is offered is a specialist, the expert witness must:

1. Specialize in the same specialty as the health care provider against whom or on whose behalf the testimony is offered; or specialize in a similar specialty that includes the evaluation, diagnosis, or treatment of the medical condition that is the subject of the claim and have prior experience treating similar patients; and

a) The active clinical practice of, or consulting with respect to, the same or similar specialty that includes the evaluation, diagnosis, or treatment of the medical condition that is the subject of the claim and have prior experience treating similar patients;

b) Instruction of students in an accredited health professional school or accredited residency or clinical research program in the same or similar specialty; or

c) A clinical research program that is affiliated with an accredited health professional school or accredited residency or clinical research program in the same or similar specialty.

B. If the health care provider against whom or on whose behalf the testimony is offered is a general practitioner, the expert witness must have devoted professional time during the 5 years immediately preceding the date of the occurrence that is the basis for the action to:

1. The active clinical practice or consultation as a general practitioner;

2. The instruction of students in an accredited health professional school or accredited residency program in the general practice of medicine; or

3. A clinical research program that is affiliated with an accredited medical school or teaching hospital and that is in the general practice of medicine.

C. If the health care provider against whom or on whose behalf the testimony is offered is a health care provider other than a specialist or a general practitioner, the expert witness must have devoted professional time during the 3 years immediately preceding the date of the occurrence that is the basis for the action to:

1. The active clinical practice of, or consulting with respect to, the same or similar health profession as the health care provider against whom or on whose behalf the testimony is offered;

2. The instruction of students in an accredited health professional school or accredited residency program in the same or similar health profession in which the health care provider against whom or on whose behalf the testimony is offered; or

3. A clinical research program that is affiliated with an accredited medical school or teaching hospital and that is in the same or similar health profession as the health care provider against whom or on whose behalf the testimony is offered.

F.S.A. § 766.102

2. May a physician testify as a medical expert as to the standard of care for nurses, physician assistants and other medical personnel?

A physician who otherwise qualifies as an expert witness and who, by reason of active clinical practice or instruction of students, has knowledge of the applicable standard of care for nurses, nurse practitioners, certified registered nurse anesthetists, certified registered nurse midwives, physician assistants, or other medical support staff may give expert testimony in a medical negligence action with respect to the standard of care of such medical support staff.

F.S.A. § 766.102

3. May a physician testify as an expert concerning the standard of care as to administrative and other nonclinical issues?

In a medical negligence action against a hospital, a health care facility, or medical facility, a person may give expert testimony on the appropriate standard of care as to administrative and other nonclinical issues if the person has substantial knowledge, by virtue of his or her training and experience, concerning the standard of care among hospitals, health care facilities, or medical facilities of the same type as the hospital, health care facility, or medical facility whose acts or omissions are the subject of the testimony and which are located in the same or similar communities at the time of the alleged act giving rise to the cause of action.

F.S.A. § 766.102

4. May a physician testify as an expert concerning the standard of care as to emergency departments?

The court shall admit expert medical testimony only from physicians, osteopathic physicians, podiatric physicians and chiropractic physicians who have had substantial professional experience within the preceding 5 years while assigned to provide emergency medical services in a hospital emergency department.

F.S.A. § 766.102

5. May an expert witness testify on a contingency fee basis?

No. In any action alleging medical negligence, an expert witness may not testify on a contingency fee basis.

F.S.A. § 766.102

6. Are there any other legal limitations on expert testimony?

An expert witness must certify that he has not been found guilty of fraud or perjury in any jurisdiction.

F.S.A. § 766.102

7. What are the general recommended guidelines for physicians who act as expert witnesses?

The American College of Surgeons has adopted the following recommended qualifications:

The American College of Surgeons has also adopted the following recommended guidelines for behavior:

"Statement on the Physician Acting as an Expert Witness," by The American College of Surgeons

Copyright Kern Augustine Conroy and Schoppmann, P.C. Used with permission.