Medical expert witnesses are hired to evaluate and testify in medical malpractice lawsuits. In Florida, before filing a malpractice lawsuit, patients are required by law to hire a licensed physician to review their medical records and to give a sworn statement that the attending doctor or hospital staff failed to meet the standard of care. Governor Rick Scott signed legislation to tighten regulations on expert witnesses in 2013. SB 1792 provides clarification on how expert witnesses are used in medical malpractice cases. Currently, expert witnesses can testify if they have practiced in the “field,” but they don’t have to have practiced in the same “specialty” that’s in question. Florida SB 1972 allows only expert witnesses to be able to testify if they have practiced in the same exact specialty that’s being litigated.
Florida senator Garrett Richter supported the bill. “For too long, lawyers put so called expert witnesses on the stand in courtrooms with little review as to whether they actually understood the material. This bill will provide courts with a reliable set of criteria to assess whether an expert witness actually lends real credibility to a case, which will improve Florida’s legal climate.”
More than ever, doctors are expected to follow evidence-based guidelines laid down by hospitals, payers, patients, and even clinical decision-support systems in electronic health records (EHRs). But malpractice attorneys say you should do so at your own risk. Guidelines are a weak defense against lawsuits.
There’s an irony here, says Joseph McMenamin, MD, a healthcare attorney in Richmond, Virginia. Specialty societies issue guidelines so as to protect physicians against unpredictable standards of care coming from expert witnesses engaged by plaintiffs’ attorneys. But this shield is also a sword. “There’s evidence that guidelines are used more frequently against doctors than in favor of them,” he says, pointing to several studies of their use in malpractice cases, including one from last year (2014).
Courts are still wary of guidelines, viewing them as hearsay unless introduced by an expert witness. Courts normally look to the expert witness to vouch for the standard of care, defined as “reasonable and ordinary care” exercised by a physician in the same specialty, in a similar community, and in like circumstances.
In Florida, experts can testify in medical negligence cases only if they have practiced in the same specialty as the doctor who is being sued. Negligence cases against emergency room doctors have a higher standard to meet. The emergency medicine expert witness must have worked with patients in a hospital emergency room within the five years before testifying or signing a sworn statement in a case. The practice of emergency medicine is one of the most challenging in medicine today. Allegations of negligence against ER doctors may involve failure to diagnose, misdiagnosis, mismanagement of an acute illness, etc. Retaining a top-level medical expert from a major U.S. medical center is vital in emergency medicine litigation.