Same, Similar, and Everything in Between: Appellate Courts’ Review of the Same-Specialty Requirement for Presuit Experts in Medical Malpractice Cases

Florida’s medical malpractice presuit process aims to prevent unsupported lawsuits from going to court. Before filing a lawsuit, the plaintiff must get an expert’s opinion supporting their malpractice claim. Meeting these requirements is a must before suing. Defendants often challenge the expert’s qualifications in court. The law on this issue has changed over time, and this article offers advice for lawyers handling these cases in Florida’s courts. Since the mid-1980s, Florida has tried to balance the interests of people involved in medical malpractice cases, like the plaintiffs, defendants, and insurance companies. In 1988, the Florida Legislature passed laws to make it easier to resolve these cases before going to court. As part of this, the person making the claim has to get an opinion from a medical expert supporting their claim. Over time, the requirements for these experts have gotten stricter, and now the expert has to specialize in the same field as the defendant and have experience treating similar patients. In 2013, the law was changed to remove the option for a similar specialty and make it harder for courts to disqualify or qualify an expert based on other reasons. If a plaintiff’s notice before filing a medical malpractice claim is challenged, the court has to make a decision on the challenge. If the challenge is successful, the claim is dismissed but can be refiled. If the challenge is denied, the defendant has to go to trial. This is important to make sure the presuit requirements are followed. The only way to review a denial of a motion to dismiss based on presuit compliance is through certiorari, and it’s not listed as an appeal in the rules. When a defendant wants to appeal a ruling about following the rules before a lawsuit, they have to show that the court made a big mistake that hurt their case and can’t be fixed later. It’s harder for them to do this than for a plaintiff, who has an easier time appealing a dismissal. Both sides need to act quickly, especially the plaintiff, to avoid running out of time to file their case. It’s important for defendants to bring up any issues with following the rules right away, or they might not be able to challenge them later. The current process might not be fair to defendants, so there might be a new way to handle these appeals in the future. In legal cases for medical malpractice, there are different rules for appealing a decision or asking for a review of the case. The process can be confusing and may not always be fair for both sides. It’s important to make changes to the rules to make sure both the plaintiff and defendant have a fair chance to appeal a decision. This is especially important as medicine becomes more specialized, and the rules need to adapt to these changes. There’s a need for a fair and clear process for appeals in these cases. In 1987, Florida laws required a patient to give notice and a good faith certification before filing a malpractice lawsuit. The certification could be supported by an expert’s written opinion, but it wasn’t required at that time. New laws in 1988 expanded on these measures. The laws also specified that the plaintiff’s expert must be similar to the defendant in order to testify against them. Different rules apply to generalists and emergency care providers. In a legal case, it was recognized that a doctor from the emergency room could testify against a surgeon regarding a specific issue, but not on areas requiring a different specialization. The Florida Supreme Court declined to adopt a 2013 amendment, and certain cases have addressed the essential requirements of the law. A court ruling was challenged because it didn’t follow the law. If you disagree with a court decision in Florida, you can appeal it. In some cases, you can ask for a faster review if it’s about insurance coverage. The rules for appealing court decisions might change in the future to make it easier to appeal certain types of decisions.

Source: https://www.floridabar.org/the-florida-bar-journal/same-similar-and-everything-in-between-appellate-courts-review-of-the-same-specialty-requirement-for-presuit-experts-in-medical-malpractice-cases/