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Recent Case Highlights Flaws in Florida Law Disqualifying Expert Witnesses in Medical Malpractice Cases

Written on Tuesday, August 1st, 2017 by T.C. Kelly
Filed under: Expert Opinions

A Florida trial court recently dismissed a medical malpractice lawsuit filed in 2009 after finding that the plaintiff did not obtain an opinion from a qualified medical expert that the claim had merit before filing suit, as Florida law requires. The plaintiff relied on Dr. Richard Dellerson to provide that opinion, but the trial court decided that Dr. Dellerson was not qualified to render it, despite his decades of experience in the field of emergency medicine.

Now age 78, Dr. Dellerson was once regarded as one of South Florida’s foremost experts in emergency medicine. He served as chief of emergency medicine at a regional hospital and helped establish Broward County’s trauma network in the 1990s. Dr. Dellerson was often called upon to provide expert testimony in that field.

The Miami Herald reported that Dr. Dellerson’s story “highlights flaws in Florida’s regulation of expert witnesses for medical malpractice cases.”

Disciplinary Proceedings

Dr. Dellerson was board certified in Emergency Medicine until 2009, when his certification expired. In 2010, Dr. Dellerson authored two expert reports in which he stated that he was board certified.

The Florida Department of Health filed a complaint with the Board of Medicine seeking the revocation of Dr. Dellerson’s license based on his allegedly “misleading, deceptive, or fraudulent” statements related to the practice of medicine. The complaint was eventually settled. The settlement agreement provided that Dr. Dellerson would receive a reprimand and would not act as an expert witness as long as he holds a license to practice medicine in Florida.

Malpractice Lawsuit

On June 3 2009, the husband of a deceased patient sued Dr. Scott Plantz, an emergency room physician, based on the claim that Dr. Plantz misread an x-ray. Dr. Plantz denied that he was negligent.

Florida law requires a medical malpractice victim to obtain a medical expert’s written and sworn opinion that the defendant in the lawsuit breached a duty of care and that the breach injured the patient. The written opinion must then be served as part of a pretrial notice of the plaintiff’s intent to file suit.

To comply with Florida law, the expert opinion must be prepared by a healthcare provider who has practiced in the same specialty or field as the provider who is accused of malpractice. The law sets different requirements for suits against different kinds of healthcare providers. In the case of doctors who are accused of malpractice when providing emergency medical services in a hospital emergency room, the expert must be a licensed physician with “substantial professional experience within the preceding 5 years while assigned to provide emergency medical services in a hospital emergency department.”

The judge in the lawsuit against Dr. Plantz was asked to decide whether the “preceding 5 years” referred to 5 years before the date of the expert’s opinion or 5 years before the date of the alleged malpractice. The statute is ambiguous in that regard, since a part of the statute referring to testimony given by healthcare providers in other fields requires those providers to have relevant experience within a specified number of years prior to the occurrence giving rise to the lawsuit.

The language governing opinions of experts in the field of emergency medicine is a recent addition to Florida law. The same language governs experts who testify in court. The judge decided that the legislature wanted experts in emergency medicine to have specialized experience within 5 years of the date their expert opinion is provided.

Since experts testify about the standard of care that existed at the time of the alleged malpractice, it isn’t clear why knowledge or experience acquired after that date should have any bearing on the expert’s opinion. The court’s decision is also problematic because a retired expert might be qualified to render the required presuit opinion, but might no longer be qualified to render the same opinion at trial if the trial occurs more than 5 years after the expert last practiced. The judge’s interpretation of the law gives defendants an incentive to drag out the proceedings in order to cause plaintiffs to lose their experts.

Dr. Dellerson had substantial Emergency Room experience within 5 years prior to the time the malpractice occurred, but not within the 5 years prior to the date of his written opinion. Accordingly, the judge decided Dr. Dellerson was not qualified to render his presuit opinion and dismissed the case for failure to comply with that requirement.

Flaws in the System

As the Miami Herald reports, many doctors have complained “about  fellow physicians who give false testimony against their peers.” Those complaints are self-serving to the extent that they are made by doctors who want to be shielded from accountability if they commit acts of malpractice. Yet it is those complaints, echoed by insurance companies, that drove the expert witness legislation in Florida and many other states.

The doctors and insurance companies that urge expert witness “reform” rarely acknowledge the landmark Harvard Medical Practice Study, which concluded that a “disturbing” number of adverse patient events are caused by medical negligence. Based on a random sample of hospital records in New York, the study found that more than 27,000 hospitalized patients in New York were injured by medical negligence in 1984, “including 6895 deaths and 877 cases of permanent and total disability.” The actual number of injury victims was probably higher, however, since physicians do not always document their negligent acts in medical records.

Statistics suggest that 25,000 to 120,000 hospital patients die every year due to medical negligence. Only about 3{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of malpractice victims ever file claims. Only about 0.10{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of malpractice victims receive a verdict in their favor at trial. Yet instead of focusing on ways to combat the problem of medical negligence and uncompensated victims, the legislative focus has been on making it more difficult for the 3{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} who pursue claims to recover compensation.

There is little reason to believe, as the physicians quoted by the Miami Herald assert, that expert witnesses for plaintiffs in medical malpractice cases routinely commit perjury. Risking a medical license and a prison sentence by lying under oath isn’t something that most private expert witnesses would consider. It isn’t surprising that doctors who are accused of malpractice disagree with their accusers, but disagreement is not a basis for accusing experts of giving false opinions.

As the Miami Herald points out, Dr. Dellerson practiced emergency medicine for more than 40 years. He was eminently qualified to offer an expert opinion about the standard of care that should govern emergency medicine practitioners, yet Florida law (as interpreted by the trial judge) required the exclusion of his testimony. Rules of expert opinion admissibility that exclude qualified experts make it more difficult for injury victims to receive the compensation they deserve. Those rules might serve the interests of doctors and insurance companies, but they do not serve the interests of justice.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.