Florida Senate Committee on Judiciary Reviews Civil Litigation Issues Relating to Medical Malpractice Claims
Feb 6, 2013
The Florida Senate Committee on Judiciary (“Committee”) held a workshop on civil litigation issues yesterday, February 5, 2013. To view the agenda, click here.
The Committee discussed whether health care practitioners have sufficient access to legal counsel in light of the Florida Supreme Court ‘s interpretation of s. 456.057, F.S., in Hasan v. Garvar, 2012 WL 6619334 (Fla. 2012). As described by representatives of the Defense Bar on hand to testify at yesterday’s meeting, the Court’s holding in Hasan prohibits physicians from seeking counsel unless they are reasonably certain they will be named in a medical malpractice lawsuit. This holding presents several issues, it was explained. It does not consider a physician’s ability to procure counsel for regulatory actions and also raises the question of whether a physician is making an admission that he or she should be named in a suit if the physician obtains counsel prior to being named in a civil action.
It was further explained that, as it stands, plaintiffs’ lawyers have the privilege of conducting ex parte communications with physicians currently treating a claimant in a medical malpractice action. The defense does not have a similar privilege, which complicates and lends inefficiency to medical malpractice claims. Depositions are the only means for defense attorneys to communicate with treating physicians. Defense counsel find these depositions are time consuming, costly, and that the same information could be obtained through less formal means of communication. Further, it is difficult to conduct all necessary depositions within the timeframe established in the statutory safe harbor.
It was discussed that Florida allows non-specialist physicians to testify against specialist physicians in medical malpractice claims. As a practical matter, physicians who are not specialists do not have the particularized knowledge necessary to accurately testify to the actions of a specialist physician.
In yesterday’s meeting, Dr. Richard Thacker provided commentary on defensive medicine, stating his belief that it represents about 20 percent of the cost of health care.
As an effort to curb defensive medicine, Dr. Thacker suggested a clear and convincing evidence standard be adopted for determining if medical malpractice has been committed due to the omission of a specific test.
Representatives of the Florida Justice Association (“FJA”) testified that they oppose any medical malpractice reform, except a strengthening of the wrongful death statute, so as to provide families with more access to damage awards. The FJA representatives stated that the threat of medical malpractice actions forces physicians to provide better care. Further, they listed several hurdles encountered by medical malpractice claimants, including health maintenance organizations’ exemption from liability, caps on non-economic damages, pre-suit screening and binding arbitration, among others.
The FJA representatives presented evidence that the number of physicians in Florida is increasing, and total medical malpractice awards are decreasing. This data was presented as evidence that there are no issues with the medical malpractice claim process in Florida.
They also countered the prior description of the Hasan case, contending that Hasan holds that a defendant physician may not be represented by a lawyer selected and compensated by the physician’s medical malpractice carrier. The FJA representatives also disputed the assertion that plaintiffs in medical malpractice claims have more access to, or some advantage in employing physician expert witnesses.
The FJA representatives also addressed the Defense Bar’s desire to require expert witnesses to have the same specialty as a physician defendant, contending that there are not enough specialists in Florida to satisfy this requirement, which would greatly hinder a plaintiff’s claim.
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